Will a Protective Order Finally Convince Courts of the Need to Disclose?
by: Ryan • May 29, 2011 • no comments
Very brief discussion of a very complicated topic. Most - but not all - pre-trial motions to compel the disclosure of Grand Jury notes fail. The reason given is the need for secrecy, without which, we are told, witnesses would be less likely to appear before the Grand Jury. A dubious claim, especially if those witnesses have already given statements to the police, but it is what it is.
The same rationale is given for not providing the defendant with the witness statements provided to the parole board. Witnesses won't come forward if the person up for parole will learn what they had to say.
But the COA has carved out an exception to that rule, at least in terms of parole boards. Will the same exception apply when it comes to Grand Jury notes? Check out the motion below. It should be filed concurrently with your motion to compel the notes, in which you have - hopefully - laid out a compelling reason why the notes constitute Brady material.
How would you prove that the notes would constitute Brady material? Well, Brady material includes impeachment evidence, and how many cases do you have where the indictment doesn't match up with the claims in the police reports? In that scenario, could the notes be anything but impeachment material?
Let's face it: there's a reason prosecutors fight like hell to keep these notes out of the defense attorneys' possession. There's a reason they don't tape record GJ testimony except in rare situations, because they'd have to turn it over if they did. If trial was about getting to the truth . . .
You should fight just as hard to pry those notes loose. Perhaps this motion will help.
[Grand Jury Protective Order Motion]
Ryan Scott is a partner in Scott and Huggins. Most but not all of his essays for this website can be found here.
