My friend and colleague, Kevin Sali, recently wrote a guest opinion in the Oregonian about why our current Grand Jury system must change. It’s a great piece. I completely agree. I encourage everyone to read it. Kevin is one of the smartest lawyers I’ve ever known (for a Canuck that is).
But I have few things to add because most non-lawyers who have not served on grand juries have no idea what the grand jury process is and you should:
1. They are secret and one-sided. The defendant isn’t allowed in. The defense lawyer isn’t allowed in. Almost always, the defendant and/or his attorney never gets to see the grand jury notes or learn anything about what happened in grand jury.
2. The “rules” you hear about on Law and Order? Don’t apply in Grand Juries — like hearsay. There is no judge in a grand jury ruling on whether evidence is admissible or not.
3. Most of the time defense lawyers never even know when a witness’s grand jury testimony is inconsistent with their trial testimony. If they did, a defendant would have the opportunity to challenge the credibility of those testifying against him. Doesn’t that seem fair?
4. There is no reason why the current system should exist. The argument that a few elected district attorneys made via a guest opinion in the Oregonian as to why there shouldn’t be transparency in grand jury proceedings?
I hate to sound like my 8-year-old but their argument is dumb. They argue that recording the grand jury witnesses’ testimony would expose these witnesses to harassment and intimidation:
Makes no sense. Why?
A. Because prosecutors are constitutionally mandated to provide defendants with the names of these witnesses and what they are going to testify about once grand jury is done. In trial, these witnesses testify in court with the defendant present.
The guest opinion was frankly insulting to members of the defense bar as it implied that defense lawyers would assist their clients in harassing and intimidating witnesses if the grand jury process changed.
B. There are already existing laws in Oregon which require defense attorneys to redact the contact information of witnesses when giving defendants the documents that provide what the witness will testify about. The same would/could apply in the context of grand jury witnesses.
I get it, the rights of criminal defendants are not all that important to most people.
Until your brother, wife, daughter, or bestie needs one.