State v. Faux , 9 Utah 2d 350 ( 1959 )

CROCKETT, Chief Justice.

The District Court issued an order that counsel for Theodore I. Guerts, City Commissioner of Salt Lake City, facing trial on an indictment by a Grand Jury for “Misconduct In Office,” be permitted to examine the transcript of the testimony of witnesses listed on the indictment. The District Attorney sought and obtained from this Court an alternative writ prohibiting such inspection. Our question is whether the writ should be made permanent.

The District Attorney contends that the transcript is available to him only and argues that furnishing it to defense counsel would remove secrecy from the Grand Jury proceedings and hamper its effectiveness.

The contentions of the parties center upon Secs. 77-19-9 and 10, U.C.A. 1953. Section 9 provides that the testimony of witnesses before the Grand Jury shall be taken by a reporter and a transcript thereof furnished to the County Clerk and to the District Attorney, and further states:

“No person to whom a transcript of the testimony has been delivered * * * shall exhibit said transcript * * * to any person except upon written order of the court duly made after hearing the persons in whose custody said copy is placed; except that said testimony so transcribed may be used by the prosecuting attorney to impeach the testimony of any witness appearing at the trial of a person indicted * * * or of a person accused of and being tried for perjury.” (Emphasis added.)

Section 10 is entitled “Proceedings to be kept secret — Exceptions.” It is concerned with proceedings in the grand jury room.

“No member of the grand jury, nor any person at any time present at any session of the grand jury, shall disclose what he himself or any other grand juror or person may have said at such session. No grand juror shall divulge in what manner he or any other grand juror may have voted on a matter before them; any grand juror or other person may, however, be required by any court to disclose 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, or to disclose the testimony given before the grand jury by any person upon a charge against such person for perjury in giving his testimony, or upon his trial therefor.” (Emphasis added.)

The language emphasized makes clear that the provision for secrecy is qualified by the exception that the testimony given by witnesses before the Grand Jury may be disclosed for the purpose of impeaching such witnesses in the event of a trial. This court so held in the case of State v. Harries.¹

It must be conceded that Grand Jury proceedings have historically been kept secret insofar as that is practical, for the valid purpose of giving it the greatest possible facility and independence in its investigation. The reasons for secrecy are generally stated to be these: (1) To prevent persons from covering up illegal operations or from fleeing while an indictment against them is under consideration, (2) to protect the Grand Jury or individual jurors from being subjected to pressure by persons who may be involved, (3) to encourage the witnesses to give the Grand Jury full information by protecting them from being influenced or tampered with by fear, favor or other improper means, and (4) to guard against any defamation of persons informed against, by accusations which may be false, until they can be investigated and verified, and (5) the reason is also sometimes given that it will avoid giving prospective defendants an opportunity to fabricate perjured defenses.

It will be noted that after the indictment is returned and an accused is arrested, the reasons for secrecy have largely been spent. As the writer views it, the furnishing of a defendant with a basis for preparation of perjured testimony has little or no validity. If he will engage in such unlawful machinations, the time element is not going to prevent it and other processes of law must cope with such unlawful conduct. As to an indicted defendant and the testimony which has been given against him, the only remaining reason of any importance for preserving secrecy relates to the protection of the witnesses and the effect disclosure of their testimony prior to trial may have on future witnesses before Grand Juries. An analysis of the order made will demonstrate that this consideration has little or no validity here.

We are not aware as to what assurances in regard to secrecy have been made to such witnesses. But our law makes it so plain as to be incontestable that witnesses appearing before a Grand Jury could not lawfully be promised permanent secrecy as to their testimony. If an indictment results, Section 77-20-2, U.C.A.1953 requires that the names of the witnesses who have testified before the Grand Jury in the case be listed upon the indictment. Thereafter the subject matter of the indictment and the identity of the witnesses can no longer be secret. The only purpose such listing can possibly have is to advise the defendant who the witnesses are. Any witness who testifies before the Grand Jury must know that if an indictment and prosecution results he is subject to being subpoenaed to testify either by the prosecution or by the defense to the end that the full truth be revealed and that there be proper and efficient administration of justice. No one even contends to the contrary. If the rule were otherwise, this purpose would be thwarted and witnesses might tell irresponsible tales before Grand Juries.

The case of State v. Harries, referred to above, is the only case in which this Court has dealt with the problem of the use of the transcript of testimony of witnesses before the Grand Jury for purposes of impeachment. There the trial court had refused defense counsel’s request to examine the transcript prior to trial, but accorded the privilege during the trial. In upholding the trial court’s action, this Court indicated that under our statutes the defendant was entitled to use such transcript for the purposes of impeachment at the trial, hut held that the court had committed no error in not furnishing it before the trial because that lay within the court’s discretion. Through Justice Latimer the Court stated [118 Utah 260, 221 P.2d 613]:

“The defendant is not entitled to inspect a copy of the transcript before trial as a matter of right/’ (Emphasis added.)

That defense counsel may examine the transcript for the purposes of impeachment being established, that question is not now before us for adjudication. The sole issue is when it may be permitted. And more specifically, did the District Judge act beyond his authority in ordering such examination prior to the trial ?

It should require no elaboration to demonstrate how cumbersome and difficult it would be to compel counsel to wait until each witness had testified upon direct examination, then procure the transcript pursuant to the order authorized by the statute, and thereafter determine whether impeachment should be pursued. It is obvious, of course, that the defense cannot know whether the prior testimony of the witness was inconsistent with the testimony given at the trial unless he knows what the testimony before the Grand Jury was. It is quite unlikely that a witness would voluntarily reveal that he had previously testified differently. To give the defendant the theoretical right to use the transcript to impeach the witnesses and then make it so difficult to use as to be ineffectual would be but an empty delusion, unworthy of our standards of fairness to both sides in such a trial.

We remain aware of the investigatory nature of the Grand Jury’s activities and of the necessity for secrecy, insofar as practical, to provide it with an atmosphere of confidence and assurance so that it may effectively carry out its functions. On the other hand, the rights of one accused of crime are in no wise to be belittled nor ignored. The fundamental purpose of a criminal trial is not solely to convict the accused. It is to seek the truth and administer justice. While secrecy may be justified at certain stages of the proceedings for the purposes hereinabove indicated, all fair-minded persons will concede that ultimately the full truth should he revealed to the court and jury. In such instance the truism should be recognized that the truth should have nothing to fear from light.

Our law has come a long way since the days of the English Star Chamber when men were tried without being present and condemned on testimony of witnesses whom they were never permitted to see. If anyone is under the’ illusion that in this country one may be condemned for alleged crime upon evidence taken in his absence and kept secret from him, it is heartening to be able to point out that such is not the state of our law. Fortunately such proceedings are not now regarded as among the brightest chapters in the development of our system of justice. Such it was that prompted the requirement that the names of the witnesses must be placed on the indictment, and that the accused has the right to be confronted with the witnesses against him.² Any thought that one’s rights or reputation may be invaded or destroyed by unidentified informers is foreign to the ideals of American justice. Only by respecting the rights, the dignity and the importance of every man, however, odious the offense charged, or however unpopular his cause, can we measure up to’ our vaunted ideal of equal justice under law. If we do less we foresake that ideal and defile the name of justice.

In view of the fact that the Court deemed defense counsel entitled to use the transcript he directed that the opportunity to examine it be afforded a reasonable time before trial so that he could properly prepare his defense and the trial could proceed with efficiency and dispatch.

To contend that the order under scrutiny here would have the effect of laying open proceedings of the Grand Jury to the public is to distort the true effect of the order for the purpose of making a specious attack upon it. The Court appears to have been fully cognizant of the importance of preserving the confidence and secrecy of the Grand Jury’s activities for the purposes indicated in this opinion, and of the difficulties to be encountered in not doing so. He heard the arguments of counsel relating to the issues to be tried and deemed it necessary in the interests of justice to permit defense counsel to examine the transcript in accordance with the provision in 77-19-9 that the transcript shall be exhibited to no one, “except upon written order of the court duly made after hearing. * * * ” Inasmuch as the District Attorney is expressly authorized to use the transcript, the only possible meaning this language could have is to permit some other use of the transcript. What more likely “other” use could there be than for the defendant, who is most vitally concerned in the matter?

The trial judge, discreetly and properly circumscribed the procedure so that only material portions of the transcript of the testimony of witnesses would be exposed and then only to the extent he deemed the ends of justice required it. None of the statements, discussions, actions, or votes of the grand jurors are in any wise to be disclosed. The transcript is to be examined by only one person, defense counsel, who is an officer of the Court, under strictly limited circumstances. The order included these restrictions: that the District Attorney should “screen” the testimony of such witnesses and make available to defense counsel only portions relevant and material to the case; that the inspection should be made in the office of the District Attorney; that defense counsel could make no copy but only take notes as to substance; and that the latter should not reveal to any other person any of the contents of said record except as it might become material for impeachment at the trial. No case has been cited, and we are aware of none, which holds that an order -so carefully preserving secrecy of the Grand Jury proceedings is an abuse of discretion.

In the recent case of Pittsburgh Plate Glass Co. v. United States,³ the United States Supreme Court divided five to four on the question whether the trial court had abused its discretion in refusing the defendants permission to inspect Grand Jury minutes covering testimony of a key Government witness. The Government had offered to let the trial judge screen the testimony and to allow inspection of material portions, which offer the defendant rejected. For the majority, Justice Clark reviewed the authorities and arguments for Grand Jury secrecy; for the minority Justice Brennan similarly covered the desirability of permitting full disclosure to the defense, and stated that the court had abused its discretion in refusing it. However, it will be noted that both opinions reflect that the question of disclosure rests in the sound discretion of the trial court. To the same effect see the recent case of State ex rel. Clagett v. James.⁴ See annotation at 127 A.L.R. 272 for collation of authorities pro and con as to secrecy of Grand Jury proceedings.

An important consideration justifying the recognition of the prerogative in the trial court to allow defense counsel to inspect the material portions of the transcript for impeachment purposes when he thinks the interests of justice demand it is the fact that one charged by the usual method of filing a complaint is entitled to a preliminary hearing which affords him an opportunity to know what the witnesses against him testify to; whereas one indicted by a Grand Jury does not have that advantage.

It is argued that to approve the order in question and to recognize such discretion in the trial court is fraught with the danger that the court will always have to make such a transcript available to the defense before trial upon request; or in the alternative, it will have the arbitrary power to refuse such a transcript. The answer to such contention, insofar as this case is concerned, is that the court has ordered the transcript made available and there is no question of arbitrary refusal. More fundamental upon this point is the fact that the trial judge is close to the litigation and aware of the exigencies thereof. It is to be assumed that he will exercise sound discretion as to whether the information should be revealed to the defense based upon its importance for that purpose compared to the possible harm it might do to the Grand Jury’s function, or to others, or to the public interest. It is elementary that wherever discretion exists in the trial court, this Court indulges considerable latitude to the determination made and will not interfere with it in the absence of a showing of clear abuse of such discretion.⁵

Further supporting the conclusion we reach is the sound and well-recognized principle that the writ of prohibition, being an extraordinary one which reaches out and arrests the proceedings of another tribunal, is used with great restraint. It normally will not be invoked to interfere with the proceedings of a court unless it is acting without jurisdiction, or clearly outside of its authority, or where some irreparable harm will result.⁶

We are of the opinion, however, that the portion of the order charging the District Attorney with the responsibility of “screening” the transcript is not well advised. It indeed could be dangerous in the hands of anyone other than a most conscientious and scrupulous prosecutor. Defense counsel offered to waive any defect in that regard, which is a compliment to the District Attorney. Nevertheless, such order may in the future be regarded as a precedent. The screening is a judicial function and not one to be performed by an adversary. Although the duty may prove somewhat burdensome to the trial judge, and is not without difficulty, we believe that it should be done by the Court itself.

The alternative writ is recalled and the Court is permitted to proceed as it deems advisable in the premises.

WADE and McDONOUGH, JJ., concur.

1 . 118 Utah 260, 221 P.2d 605.

2 . Art. I, Sec. 12, Utah Const.

3 . 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323.

4 . Mo., 327 S.W.2d 278. Majority opinion by Hyde, J., Eager, J. dissented opinion denying rehearing 327 S.W.2d 289.

5 . Anderson v. Baker, 5 Utah 2d 33, 296 P.2d 283.

6 . Ibid.