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How much evidence is necessary to obtain an in camera review?

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by: Ryan Scott • October 15, 2016 • no comments

With far too much frequency, some judges are hesitant to grant an in camera review of Grand Jury notes. In justifying that decision, there is often a reference made to the historical secrecy of GJ notes, but (1) an in camera review avoids any of the concerns about disclosure because an in camera review, by definition, means the defendant does not see the notes unless they contain Brady material, and (2) we don't usually see such hesitancy regarding, for example, medical records, which have a far greater claim to being privileged.

It is especially strange given that the standard for obtaining an in camera review is not that high.

Generally, in determining whether to conduct an in camera inspection of such material, the court should engage in a two-step process. The first step is to determine whether the party seeking the review has “produced evidence sufficient to support a reasonable belief that in camera review might yield” relevant unprivileged evidence. Frease v. Glazer, 330 Or 364, 373, 4 P3d 56 (2000).

State v. Bray, 281 Or App 584 (2016)

A reasonable belief that it might yield relevant evidence? You mean, like a statement made during testimony that is inconsistent with a statement made to the police? In such a scenario, the GJ testimony -- often given closer in time to the statement given to the police, and given under oath -- might easily yield impeachment material.

Preserve, and preserve well. This is an issue we will win on eventually, not because the Constitution favors us (though it does), but because it is simply, fundamentally, right that the state shouldn't be allowed to hide behind Grand Jury secrecy to avoid giving over evidence that their witness may have given different evidence at GJ.