State v. Parks , 1968 Alas. LEXIS 153 ( 1968 )

RABINOWITZ, Justice

(concurring).

In State v. Shelton¹ this court said that one of the purposes of grand juries, as provided for in article I, section 8 of the Alaska constitution, is to carry out the vital function of protection of the innocent against oppression and unjust prosecution. Unless this court is prepared to change its evaluation of the role that grand juries actually play, or should play, in our society, rejection of the Supreme Court of the United States’ construction of the fifth amendment, announced in Costello v. United States,² is indicated.

If the institution of the grand jury is viewed as an anachronism, then Costello has appeal, for there the Supreme Court held that an indictment proper on its face returned by a legally constituted and unbiased grand jury is sufficient to require a trial on the merits. The Supreme Court in Costello also, emphasized the likelihood of interminable delays and abuses of criminal practice which would result if indictments were held subject to attack on grounds of the inadequacy, or incompetency, of the evidence which, was presented to the grand jury. Admittedly, these are factors which must be considered in the shaping of any system for the administration of criminal justice.³ Yet it seems to me that our system of criminal laws must include procedures whereby cases in which there is an absence of reliable evidence . can be detected and filtered out prior to the trial stage. Before an individual suffers any of the serious inconveniences which are apt to ensue upon the return of a felony indictment (arrest, loss of job, humiliation, etc.), there should be a reliable determination made as to the probability of his guilt.

Because of the foregoing, I concur in this court’s rejection of the Costello rule. Yet I have reservations as to whether the “evidence * * * that rationally established the facts” test which this court has now adopted will afford the innocent protection against unjust prosecutions. Whether or not this rule possesses viability will be determined in future adjudications.⁴

1 . 368 P.2d 817, 818-819 (Alaska 1982).

2 . 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

3 . It appears that there are numerous state court decisions since Costello which have followed the rationale of that case. See People v. McCrackin, 61 Ill.App.2d 457, 209 N.E.2d 673, 674 (1965); People v. Jones, 19 Ill.2d 37, 166 N.E.2d 1, 3 (1960); King v. State, 236 Ind. 268, 139 N.E.2d 547, 551 (1957); State v. Squires, 205 N.C. 388, 144 S.E.2d 49, 50 (1965); Wickline v. Alvis, 103 Ohio App. 1, 144 N.E.2d 207 (1957); Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 902-9, 04 (1964).

4 .. There are also procedural ramifications to the rule announced today. In Merrill v. State, 423 P.2d 686, 695-696 (Alaska), cert. denied, Merrill v. Alaska, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967), we held that disclosure of grand jury minutes under Crim.R. 6(h) is a matter committed to the discretion of the trial judge. We further held, relying upon Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, 1326-1327 (1950), that a movant must demonstrate the existence of a particularized need requiring the disclosure of the grand jury’s minutes.

It might well be' that both Crim.R. 6(h) and our holding in Merrill will have to be modified to effectuate the eviden-. tiary rule articulated in today’s opinion. It will also be mandatory that a record be kept of all proceedings before any grand jury.