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All Right, People, Let's Update Those Motions to Compel Grand Jury Notes

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by: Ryan • June 28, 2013 • 2 comments

Governor Kitzhaber has signed a new law that changes nothing, but in a good way. Oregon statutes -- once the new law is effective -- will codify the constitutional guarantees that go under the heading "Brady."

Here's the language noting that prosecutors must turn over to the defense:

(g) Any material or information that tends to:
 (A) Exculpate the defendant;
 (B) Negate or mitigate the defendant's guilt or punishment; or
 (C) Impeach a person the district attorney intends to call as a witness at the trial.

So given this was always constitutionally required, what good does a statute do? Well, most -- if not all -- prosecutors in Oregon seemed to think that Grand Jury notes were somehow immune from Brady requirements. I've never had -- in nearly twenty years of practicing criminal defense -- a prosecutor voluntarily turn over Grand Jury notes, even though I have known -- often from talking to witnesses myself -- that the witness said something exculpatory regarding my client. Or the witness recanted at GJ everything he or she had previously said.

I won't get into the whole long history of why prosecutors tend to have the belief that GJ notes are somehow exempt from the normal due process guarantees. Unfortunately, many judges agree, bizarrely, for no good reason. Judges in fact have been so cowed by this idea that GJ notes are somehow protected, even after a witness testifies, that they are afraid to even review the notes in camera. The irony is, refusing to even review the notes in camera may constitute reversible error. And few defense attorneys ever ask for GJ notes, even when there is every indication the notes would be helpful at trial.

What this statute does is make plain that anything in the possession of the prosecution -- and Grand Jury notes are kept with the prosecutor (Washington County even gives one of the jurors a lap top to take notes, which the DA takes back) -- that satisfies (A), (B) or (C) must be turned over to the defense. Period.

If a prosecutor refuses to look at the notes pre-trial, that is, refuses to determine if the notes provide exculpatory or impeachment material (which they usually do), then it's all the more reason for the judge to grant the motion for in camera review.

The fear of turning over GJ notes is a vestigial remnant -- like an appendix -- that serves no valuable purpose. The feds turn over GJ statements all the time, hasn't stopped them from a 98% conviction rate. This new statute -- while it doesn't change the rules -- makes plain to even the most derpy lawyer what the rules are. Time to use this to our advantage.