Untitled Texas Attorney General Opinion

AhUSIIN 11. -rExaS
FVIIAL WIISO~
A-RNEY GENER*L
August 22, 1961
Honorable Stanley C. Kirk Opinion No. WW-1115
District Attorney
Wichita County Courthouse Re: Whether ,a grand jury may
Wichita Falls, Texas interrogate an accused
witness without the witness'
Dear Mr. Kirk: counsel being present?
You have asked this office for an opinion on the follow-
ing:
JMay a grand jury interrogate an accused
witness without the witness' counsel being
present?"
There is no Texas authority on this particularquestion.
However, all other jurisdictions which have ruled on this point
hold that such a witness does not have a right to have his
attorney with him in the grand jury room. In re Black, 47 F.,2d
tl$ZD(;.C.A.2d 1931), United States Y. Priest, '77F.Supp. 812
o., 1948) United States v. Central Supply Association,
``'::``~; 241 iN.D.Ohio, 1940) Peovle V. Dale, 179 P.2d 870
1947) Wickline v.'Alvis 144 N.E.2d 207 (C.A.Ohio,
19;7),*Unitid Stat& v. Levine. 127 FISuoo. 651 (D.Mass., 1955),
United States v. Blanl;on, 77 F:Sup& gl2*tB.D;tio;;-@& . The
witness Inust rely for any needed protection on his personal
privilege against self-incrimination to be invoked when the
occasion arises. In Texas, the established rule that a person
shall not be compelled to give~evidence against himself in a
criminal prosecution may be invoked by a witness called to
testify before a grand jury unless he has been guaranteed com-
plete immunity from prosecution in giving such testimony or
unless he has waived his privilege by appearing voluntarily or
by consenting to be interrogated. Fx carte Smelley, 21 S.W.2d
299 (Tex.Crim.,~1929), Browning v. StE;e6r;i2.S.W. 1 (T;;;z;m.,
1911), Shaw v. State, 165 S.W. 930 (T 1914).
the witness will be held to have waived'his &vilege, however,
it must be shown that he was duly cautioned as to his rights.
Allen v. State, 188 S.Wb 979 (Tex.Crim., 1916), Simmons v. State,
184 S.W. 226 (Tex.Crim., 1916).
Honorable Stanley C. Kirk, Page 2 (WW-1115)
The reason and theory behind the holding by the courts
of various jurisdictions is that the grand jury is a secret
proceeding which meets, receives and sifts evidence inde-
pendently, secretly, and in their own way so as not to be in-
fluenced or swayed by passions or improper motives. The accused
witness certainly has no right to appear before the grand jury
either personally or by counsel. In United State v. Levine,
supra, the court said:
"Defendant's right to the assistance of
counsel accrues with the returning of the
indictments against him. He is not entitled
to counsel at the grand jury stage of the pro-
ceedings."
As stated in Wickline v. Alvis, supra:
"Proceedings of the grand jury are not a
trial but are more in the nat.ureof an inquest.
There are no parties, and no defendant has a
right to appear before the grand jury . . . and
:~:;a no right to take his attorney along with
In People v. Dale, supra, it was held that:
"It is clear that one who is being investi-
gated by a grand jury is not entitled to be
represented by counsel before that body."
The State Grand Jury Hand Book prepared by the American
Bar Association was printed in its final form only after ,a copy
of it had been "placed in the hands of every State judge through-
out the United States." (Preface) The Hand Book states:
"Finally, bear in mind that neither a
defendant nor an ordinary witness, when
appearing before a Grand Jury, is entitled
to have his counsel present in the Grand
Jury Room. To do so would be unlawful."
To answer your inquiry, a grand jury may interrogate an
accused witness without the witness' counsel being present. This
agrees with your view of the law on this subject.
Honorable Stanley C. Kirk, Page 3, (WW-1115)
SUMMARY
A grand jury may interrogate an accused
witness without the witness' counsel being
present.
Yours very truly,
WILL WILSON
Attorney General of Texas
Glenn R. Brown
Assistant Attorney General
GRB:ca
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ben Harrison
Leon Pesek
Ralph Rash
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.