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Obtaining Grand Jury Notes

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by: Ryan • December 25, 2010 • no comments

I share the belief, expressed by Mark Twain, that being a good liar requires a good memory. That assumption, in fact, accounts for a large part of our cross-examination, as we highlight the discrepancies between the police reports and live testimony. If the witness were adhering to the truth, the story wouldn't change in every telling.

For this reason, grand jury notes are potentially very useful in ferreting out the falsehoods - intentional or otherwise - of witnesses and accusers. They might remember what is in the police reports, as those reports are - I suspect - routinely discussed with them shortly before they testify, but they are less likely to remember what they told the Grand Jury. That's not a serious problem if they have attempted to be accurate every time they described the events in question, but it's a big problem if their accusations are false, either entirely or in part.

Yet, for reasons that could best be described as anachronistic, the notes taken of a witness's testimony at Grand Jury are not turned over to the defense, despite the fact that - as written notes of a witness's statement - they easily satisfy Brady criteria. This essay is not going to present a full and thorough discussion of every argument you should make, but a recent appellate opinion - that on its face has nothing to do with grand jury notes - suggests an additional approach you should take in pursuing those notes.

Four quick reminders before we get to the main purpose of this essay. One, grand jury testimony must be turned over if it is recorded, yet notes of the testimony need not be. State v. Goldsby, 59 Or App 66, 650 P2d 952 (1982); State v. Cox, 87 Or App 443 (1987). This is absurd, since there is no other piece of discoverable material that is required to meet this standard. If the overriding goal of the criminal justice system was to uncover the truth (which, we all know, it is not), we could expect prosecutors to tape record grand jury testimony. They don't, but the fact that they could demonstrates that there is no legitimate reason for keeping the testimony secret if the only thing that separates the discoverable from the undiscoverable is whether the prosecutor turns on a tape recorder.

Second, the grand jury notes - which are really the notes of just one juror who has been designated to keep them - are always retained by the prosecutor's office. In fact, the Washington County DA's office provides a lap top for the Grand Jurors to use (which means, if nothing else, you won't have to decipher handwriting).

Third, the defense attorney should always ask for the notes twice, once before trial (when they might be most valuable in preparing cross-examination) and again after the witness testifies, which is looked upon more favorably in the statutes.

Fourth, defense counsel should always ask that the notes - if they are not ordered to be turned over - are sealed and put in the court file, so that the COA can look to see if they should have been discovered to the defense.

Now, let's talk about the new approach that I alluded to earlier. The courts have routinely looked at the competing interests that exist in determining whether to turn over the notes or keep them secret. The defendant will usually argue that turning over the grand jury notes in this case is constitutionally compelled and that providing them would be "in the furtherance of justice." ORS 132.220. The defendant will make this argument by highlighting discrepancies between (1) the witness's testimony at trial and the police reports, or (2) the witness's statements in the police reports and the charges that came out of Grand Jury (especially if those differences involve a different set of dates), or (3) the witness's statements in the police reports and his or her statements elsewhere (petitions for restraining orders, medical records, DHS records, school records, etc.). See State v. Hubbard, 297 Or 789, 688 P2d 1311 (1984)( "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.").

In short, the defense counsel wants to be able to claim, with good reason, that the notes would support impeachment of at least one version of events that the witness has previously given. Since the witness has given two different versions of events, the statements to the GJ must contradict at least one of them.

When focusing on the competing interests that determine if the notes are turned over, the defense will usually emphasize the substantial (and overriding) need for the GJ notes. However, as a new case suggests, the defendant can and should take steps to minimize the rationale for keeping the notes secret.

In parole board hearings, there are also documents that are exempt from being disclosed to the defendant, based on whether the interests in disclosure are outweighed by the interests in secrecy. ORS 192.502(5).

In Fisher/Gordon v. Board of Parole, ___ Or App ___ (Dec 22, 2010), the Court of Appeals ordered the Board to turn over otherwise exempt documents, but with a couple of conditions. "(1) petitioner's counsel is not permitted to inspect the confidential sealed material until counsel has submitted a statement that counsel will not disclose the material to petitioner and, if necessary, will file a redacted or confidential brief; and (2) counsel must comply with an order barring further disclosure of the sealed material."

The Fisher/Gordon court noted that it has the inherent authority to issue a protective order, but it also found specific statutory grounds for doing so. That inherent authority is something you will want to rely upon in making your request that you-defense counsel - get to see the GJ notes before trial.

In other words, in addition to emphasizing the need for the notes, defense counsel can also minimize any harm in disclosure by agreeing in advance to a protective order that even keeps the notes from the defendant.

Obviously, if the notes are provided as part of a protective order, and defense counsel determines they do contain useful impeaching material, defense counsel would have to approach the court - via a sealed motion and memorandum - as to why the need for cross-examination requires disclosure of the notes to the investigator, for example, or more likely, during trial. But that's a much easier argument to make when you have already seen the notes.

This is an argument that can also be made by appellate counsel, if appealing the trial court's refusal to order disclosure, and, based on Fisher/Gordon, it appears it can be made even if the notes were not sealed in the court file.

Happy hunting!