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Sex Crimes and Grand Jury Notes

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by: Ryan • September 18, 2011 • no comments

I want to remind people to make multiple attempts for Grand Jury notes, particularly in sex cases. You'll make one before trial, which I discuss here , but you'll want to do it again after the complainant testifies. In almost every sex abuse case in which there are multiple carbon-copy allegations in the indictment, the complainant's testimony never quite matches up with the number of allegations that came out of Grand Jury. For example, the indictment alleges 10 counts of sex abuse over a period of five years, and the witness testifies to less than ten or, alternatively, testifies to more than ten, because, in the immortal words of REO Speedwagon, the tale grows taller on down the line.

At this point, a statute that didn't necessary come into play pre-trial is now quite relevant.

132.220 Disclosure by juror of testimony of witness examined by jury. A member of a grand jury may be required by any court to disclose:
(1) The testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court.

As I indicated, this statute doesn't often come into play pre-trial, because the witness has not yet given testimony "before the court." But it does after the complainant testifies when that testimony is "inconsistent' with the number of counts contained in the indictment.

If the juror herself can be compelled to testify, what conceivable rationale would exist for keeping her notes secret?

Note also that the statute does not require perjury or other malfeasance on the part of the witness. Only inconsistency.

And this makes sense, because it's ultimately up to the trier-of-fact to determine the significance of any inconsistency.

It is error for the trial judge to exclude evidence which establishes sufficient facts from which the bias or interest of a witness may be inferred. * * *
We * * * hold that a decision to exclude evidence relevant to bias or interest which is error, is reversible if it denies the [finder of fact] an adequate opportunity to assess the credibility of a witness whose credibility is important to the outcome of the trial. If numerous other witnesses testified to a given fact, then the exclusion of evidence of a witness' bias or interest who testified to the same fact might be 'harmless error' in the context of a given trial. But where the impeached witness is the sole witness on a given issue and there is no corroborating evidence, the interests of a fair trial require that the adverse party be given ample opportunity to establish the witness' bias or interest.

State v. Hubbard, 297 Or 789, 800-01, 688 P2d 1311 (1984).

For those of you who don't know or have forgotten, another reminder. One of the grand jurors is designated as the secretary and is given the formal task of taking notes. In Washington County, this person is given a laptop by the District Attorney's office, which is returned to DA after the GJ term expires. These notes, therefore, are in the possession of the DA's office.

This means, further, that if you lose the motion for Grand Jury notes, you need to ask that they be sealed and placed in the Court file. This is essential to an appeal. If the judge refuses, the fact that you asked for it to be done will itself help on appeal.

As noted in here about Grand Jury notes, I encourage the defense counsel to make a protective order part of his request. I am not convinced it is necessary when the motion is made after the witness testifies, pursuant to the statute above.