Grand Juries and Their Legal Loopholes
Additionally, constitutional protections afforded to criminal defendants have been held not required for grand jury proceedings. For example, the Supreme Court has held that a prosecutor does not have a duty to disclose potentially exculpatory evidence to members of a grand jury, though he has this duty at trial.
Furthermore, a witness or a potential defendant does not have the right to counsel during grand jury investigation. Kirby v.
Miss. Code Ann. §97-9-53 makes it illegal for any “grand juror, witness, district attorney, clerk, sherriff or any other officer of the court” to disclose whether an indictment was rendered, or the nature of evidence that was used to secure the indictment. However, disclosure is permitted 6 months after the proceedings or after the defendant is arrested or given bail or recognizance.
Despite these exceptions for disclosure, it is still difficult for defense attorneys to access grand jury transcripts. If the witness at a grand jury is to be used by the state at trial, the defendant is entitled to discovery. Addkinson, 608 So.2d 304. But, many times at grand juries, prosecutors use witnesses who can only relate hearsay evidence, and therefore are not usable at trial. The Supreme Court has found no problem in grand juries securing an indictment on this type of faulty evidence, however. Costello v.
The final practical obstacle for defendants is that many times court reporters are not even present in the grand jury room (or so I’m told from attorneys who actually practice), therefore no recording is made. Despite Addkinson’s mandate that witness testimony from a grand jury be available to defendants if that witness intends on testifying at trial, many times that is impossible because no transcript exists.
Any substantive grand jury reform will come from the legislature. It is hard, if not impossible, to blame prosecutors for the weirdness of grand juries. Using a hearsay witness at a grand jury proceeding is terrific strategy for a prosecutor and defense attorneys might do the same thing if he or she were in that position. Prosecutors don’t make the rules, they just play by them. But that doesn’t mean defense attorneys can’t be frustrated because the grand jury game does seem a bit rigged.