Equal Privileges, Grand Juries and When Prosecutors (Lawfully) Decline to Follow the Law
by: Ryan • July 8, 2011 • no comments
I think Equal Privileges arguments are somewhat intimidating to many defense attorneys. There's exponentially more motions filed for speedy trial violations, which are intuitively easy to grasp, and few on equal privileges, though I think equal privileges violations are almost - not quite but almost - as ubiquitous as speedy trial violations. But EP really isn't that hard. Does the state (prosecutor, police officer) exercise discretion regarding something that either benefits or injures a defendant? Does the DA's office have a policy that helps guide the exercise of that discretion so that similarly-situated defendants are treated roughly the same?
In most cases, that is, in those situations where the DA's office doesn't have a policy, that's it. Case dismissed. It's really that simple. (When it comes to the discretion of the police officers, I'd say right now the analysis is largely the same, but it might get much more nuanced when the Oregon Supreme Court answers the questions talked about here.)
The hardest part of the analysis is identifying less-obvious places where the prosecutor exercises discretion. (Previous posts have discussed the aggregation of ID Theft charges and the filing of dangerous offender or upward departure notices.) To the extent it encourages us to look for those exercises of discretion, Savastano should be seen as possessing inspirational value beyond just its application to aggregated thefts.
Which brings us to Grand Juries, the place - in Oregon - where the prosecutor can act with virtually no oversight. Did you know that students are less likely to cheat if there's a mirror at their desk? Studies have shown that even the unconscious sense that you're being watched is enough to make us act more ethically. Keep that in mind when considering the absence of any real institutional oversight of what happens in the Grand Jury room, in particular, the evidence that the Grand Jury gets to hear.
ORS 132.320 deals with the evidence that may be submitted to a Grand Jury. Here are a couple of examples:
(1) Except as provided in subsections (2) to (11) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.
And an even more interesting one. . . .
(7)(a) Except as otherwise provided in this subsection, a grand jury may receive in evidence through the testimony of one peace officer involved in the criminal investigation under grand jury inquiry information from an official report of another peace officer involved in the same criminal investigation concerning the other peace officer's investigation of the matter before the grand jury. The statement of a person suspected of committing an offense or inadmissible hearsay of persons other than the peace officer who compiled the official report may not be presented to a grand jury under this paragraph.
ORS 132.320 has been around a long time, often amended to allow the admission of evidence from certain witnesses via affidavit rather than live testimony. But the statute is substantially the same as it has been for more than 50 years. The Grand Jury is supposed to hear from actual, live witnesses. Prosecutors are still not supposed to offer up - via the police officer - most types of inadmissible hearsay.
But it's actually not unusual for prosecutors to do just that. Experienced defense attorneys have often seen the names of just a couple of witnesses, maybe just one, at the foot of the indictment, and they know, from the police reports, that the witnesses couldn't have provided evidence of a crime without testifying to the Grand Jury about inadmissible hearsay.
That said, there is no direct remedy under the law. In a case from 1962, the Oregon Surpreme Court addressed this exact issue.
The defendant also assigns as error the refusal of the trial court to sustain his motion to quash the indictment upon which he was tried because the grand jury had heard hearsay evidence when the prior indictment was returned which it could not be expected to ignore, and, further, because of the publicity surrounding the matter, the grand jury could not act in an impartial manner. The defendant construes ORS 132.320, which we heretofore quoted, in its strict literal sense. It should be remembered that a grand jury is an investigating and accusatory body consisting, not of lawyers and jurists, but of laymen who have no power to determine the guilt of an accused, and we cannot, therefore, believe it was the intention of the legislature to require that the grand jury should hear only such testimony as would be competent in a court of law. We doubt that there are many grand juries which have not been subjected to hearsay testimony during their investigations. This statute is admonitory in character only, not mandatory, advising the grand jury to disregard incompetent evidence in returning an indictment and to consider evidence only of such character that it may be used in the trial to support a conviction of the accused. State v. McDonald, 231 Or 24, 34 (Or. 1962)[Emphasis added.]
So, the Grand Jury, made up of non-lawyers, is supposed to identify the evidence offered by the prosecutor which they may not consider, and then disregard that evidence in voting on the charges? Really? Legal analysis use to be so much looser in the old days.
Anyway, in the majority of cases, I have no doubt that prosecutors follow the statute. But I'm also confident that there are times when, for a variety of reasons, the prosecutor can't quite get an indictment without offering some inadmissible hearsay, and the Oregon Supreme Court has said the indictment's still valid, and hey, I still have to prove it at trial, right?
In other words, the prosecutor exercises his discretion on whether to admit inadmissible hearsay, and some defendants, who might not otherwise be indicted, are injured by his decision to go forward with the improper evidence.
Exercise of discretion? Injury to the defendant? Hmmm.
Imagine this. Only one name on the indictment, a police officer who never saw the crime being committed. In fact, no officer saw the crime being committed. As the defense attorney, you know, under the facts of your case, that there is no way that case gets past the GJ without the officer testifying to inadmissible hearsay, in violation of ORS 132.320.
So you file a Savastano-type motion (sample here), and you subpoena the prosecutor who took the case to Grand Jury, and you ask him the following questions under oath:
"ORS 132.320 directs that no inadmissible hearsay shall be presented to the Grand Jury, doesn't it?"
[He gives his answer.]
"Yes, you're right. Case law does say the statute is merely admonitory. You don't have to follow the law. But tell me, does the DA's office have a policy on when it will follow the law and when it will not?"
You tell me, what's a good answer to that question?
And my next question is, what kind of plea offer will you get from the prosecutor so he or she can avoid answering that question under oath?
