If you have been summoned before a grand jury, or if you are being investigated by a grand jury, or if you know someone who is being investigated by a grand jury, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty interests. At the MAYO LAW CLINIC we vigorously represent and defend individuals who are being investigated or who have been indicted by a grand jury. CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION!

ABOUT CRIMINAL GRAND JURIES

The birth of our grand jury system is generally believed to have been in England in 1166, when King Henry II issued a law requiring 12 kings or other freemen of every hundred, and four men of every township, to send in accusations of murder, robbery, larceny and harboring of criminals.  The organization of royal justice under the Norman and Plantagenet kings required judges to leave the royal capitol at fixed times of the year and travel around the country, thus the term traveling the circuit; i.e., circuit judges.  Given the conditions of travel in those days, circuit duty was more an ordeal than a pleasure. Each judge wanted to get it over with as quickly as possible.   Most of the cases heard while on circuit were criminal charges brought by private citizens.  Many of them were utterly baseless.   With no screening device, they formed a time-consuming ordeal.

Under the circumstances, the use of groups of citizens to determine which charges were worthy of trial was an excellent device to reduce the number of charges. This device worked so well that these groups of citizens acquired a recognized status and were required to take an oath to faithfully do their work. They became a jury and were known as the large, or in Norman French, the grand jury. These jurors were, in fact, used as witnesses and regularly gave testimony regarding grave crimes as were alleged against the defendant. Thus, the contemporary function of the grand jury emerged in the 13th-14th centuries to determine whether, from the prosecution's evidence, there were grounds for an indictment and, thus, a criminal trial. This function of the grand jury was embodied in the Magna Carta by the nobles to protect themselves against the excessive exercise of the Royal power to prosecute citizens.

When Americas forefathers crossed the Atlantic Ocean to build a new home, free from the shackles of a royal monarchy, they brought with them the concept of the grand jury as an institution to protect the citizen from unjust prosecution. To insure its use for this purpose, the grand jury was expressly provided for in the 5th Amendment to the Constitution of the United States. Specifically, the amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of Grand Jury.

Although the language of the 5th Amendment would seem to indicate that a grand jury is required in all cases, a grand jury can be waived in federal court and most other states, including California. The U.S. Supreme Court has held that the Due Process Clause of the 14th Amendment to the Constitution does not require the states to use a grand jury. Article 1, §23 of the California Constitution provides that a grand jury shall be drawn in each county at least once a year. Absent an indictment by a grand jury, a prosecutor may file an information against the defendant. Consequently, in California, save and except for juvenile prosecutions under the Welfare & Institutions Code (Proposition 21), grand jury proceedings are a legal alternative to holding a preliminary hearing. Juveniles, on the other hand, must be afforded a preliminary hearing. Ironically, the birth place of the grand jury, Great Britain, has entirely discontinued the use of grand juries.

CHALLENGES TO A GRAND JURY

Penal Code §888, et seq., provides for the procedures relative to a grand jury. In most counties, grand juries are selected by the judges of the superior court. In order to pass constitutional muster, grand juries must represent a fair cross-section of the community, although, there is no requirement that a grand jury mirror exactly the diversity of the county in which it sits. The selection process, however, must be free from purposeful discrimination. A defendant may consider a challenge to the grand jury if a cognizable, distinct group is underrepresented in its membership. Challenges to grand jury composition may be based on: Intentional discrimination in violation of the right to equal protection; or the absence of a fair cross-section due to non-purposeful exclusion in violation of the 6th Amendment right to trial by an impartial jury, and of due process. The rules are the same for grand juries as for petit juries, and the same for the State of California as for the federal courts. The challenge is made in the superior court through a motion to quash the indictment. At the hearing on the motion, the defense first puts on evidence to prove a prima facie case. The defense typically relies on census figures to show the percent of the underrepresented group in the county and on testimony from the jury commissioner to show what criteria are used and how they are applied.

There are, of course, other challenges to a grand jury indictment.  Recently, in the case of People v. Gnass (2002) 101 CA4th 1271; 125 CR2d 225, the appellate court recognized as a basis for challenging a grand jury indictment the instructional error of the district attorney (DA) in charging the grand jury. In this instance, the court permitted defendants PC §995 motion to set aside the grand jury indictment, since the court determined that the error denied the defendant his due process rights under relevant statutory and common law principles. Here, the DA sought an indictment against the City Attorney for the City of Waterford. However, the DA failed to properly instruct the grand jury on the mental state (knowing and willful ) necessary for any criminal conflict of interest charge under Govt. Code §1097. In addition, this error, in combination with other irregularities in the grand jury proceedings, including other misleading instructions, made it likely to have caused the grand jury to indict defendant on less than reasonable or probable cause, and trial court's grant of defendants PC §995 motion was upheld. The court stated, A prosecutor, at least if he or she undertakes to instruct the grand jury on the elements of the offense to be charged, must instruct on all of the elements. Each (sic, element) is akin to an exculpatory defense in that there can be no criminal liability unless all have been proven. The appellate court also noted that the jurors were given only one (1) hour to digest the testimony of six (6) witnesses, twenty-one (21) exhibits (totaling nine hundred and twenty (920) pages), and defendant's Johnson (exculpatory - PC §§939.7 & 939.71) material. One juror even said, Are you guys serious? Do you think I can get through this in one hour? This case clearly demonstrates how arrogant some DAs can be in secret grand jury proceedings. Thus, the commonly heard charge that grand juries are merely the pawns or puppets of the prosecutor seems to ring true in this case.

Limitation on Grand Jury Discovery  In People v. Tulare County Superior Court (2003) 107 CA4th 488; 132 CR2d 144, the Court of Appeals held that a Grand jury's petition seeking access to certain juvenile court records under Welfare & Institutions Code §827(a)(1)(M), stating only that the records were required in connection with an ongoing "public watchdog" investigation being conducted by the grand jury under PC §925, failed to demonstrate the records were necessary or relevant to any specific grand jury investigation, and was properly denied.  Here, the trial court made a simple request for additional in camera review of information and was rebuffed.  Hence, the trial court said, without more info - no records!

REPRESENTING A WITNESS BEFORE A GRAND JURY

A person is called to testify before the grand jury by being served with a subpoena. Failure to appear is punishable by contempt. A person who is being investigated is not entitled to have his or her attorney present in the courtroom wherein the grand jury proceedings are taking place. Similarly, a person subpoenaed to appear as a witness is not entitled to have his or her attorney present during his or her testimony before the grand jury. The attorney, however, may be right outside the courtroom. Because there are a number of constitutional as well as statutory privileges which may apply to the testimony of any witness, whether the testimony is given before a grand jury or a petit jury, it is imperative that the witness request a brief recess in order to speak with his or her attorney about any substantial question posed by the prosecutor. Although ones attorney may not be permitted inside the grand jury hearing room while the client is being questioned, it is entirely proper and extremely important that the client be instructed to request the brief recess to consult with his or her attorney. In the event that the prosecutor objects to such a procedure, the witness should simply not answer any such questions, placing on the record the legal objections to the question(s). A simple refusal may not be sufficient for later court proceedings. In such a situation, and in order to maintain a record of needing legal advice, a witness should be instructed to respond: I would respectfully request a brief recess, as I need to consult with my attorney regarding my legal rights.

PC §§939.3 and 1324 provide that in the event a witness refuses to answer a question based on the right against self-incrimination, that witness cannot be forced to testify unless the prosecutor brings the witness before a superior court judge and the judge grants the witness immunity. In addition, the witness attorney can seek immunity for the client through informal discussions with the prosecutor prior to the time the client is called to testify. There are, however, various forms of statutory and non-statutory immunity which have been employed by the prosecution to compel testimony despite the privilege. There are two major forms of immunity: transactional and use immunity. Use immunity only prevents authorities from using the actual testimony or evidence that was obtained under the immunity grant. Transactional immunity provides immunity from later prosecution related to any matter about which the witness testified. In California, the primary immunity statutes are:

PC §1324 - by the prosecution, in felony cases - statutory use immunity; and

PC §1324.1 - essentially by the prosecution, with the witness's agreement in misdemeanor cases - transactional immunity; and

PC §1099 - by the prosecution, to a codefendant during trial - implied transactional immunity; and

PC §1100 - at the co-defendants request or on judge's own motion, to a codefendant during trial - transactional immunity; and

PC §4001.1 - special rules for in-custody informants; and

Health & Safety Code §11367 - immunity for peace officers and those working for them in drug cases; and

Judicial immunity - use or transactional - may be granted by a court on the prosecutor's request in felony cases. If immunity has been granted, the privileges against testifying still apply to a witness. Absent a specified privilege, when immunity has been granted and the witness still refuses to testify, he or she can be held in contempt. Once held in contempt, a witness can be jailed until the grand jury finishes its investigation (up to one year or for a period between 7 and 18 months), or until the witness purges the contempt by testifying. Contempt is also a misdemeanor with a maximum penalty of 6 months in jail. If a witness is imprisoned, it is customary for the attorney to seek the clients release from custody after 5 days on the grounds that that further incarceration will not cause the witness to comply. And, despite a grant of immunity, a witness may nevertheless be prosecuted for committing perjury, false swearing, or contempt in failing to comply with the court's order during his or her testimony.

Obviously, any criminal investigation by a grand jury, (the investigation of alleged felonious conduct), is an extremely serious matter and can and usually does result in a felony indictment. Therefore, if you have been summoned before a grand jury, or if you are being investigated by a grand jury, or if you know someone who is being investigated by a grand jury, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty interests. As stated above, at the MAYO LAW CLINIC we vigorously represent and defend individuals who are being investigated or who have been indicted by a grand jury. CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION!