HOW TO GET AROUND THE COM. ATTN. AND APPEAR BEFORE THE GRAND JURY TO OFFER EVIDENCE THAT MAY PREVENT AN INDICTMENT?

Article by LawReader Senior Editor Stan Billingsley March 4, 2008

A Grand Jury has the function…of protecting citizens against unfounded criminal prosecutions.

Question: What do you do when you know a case is coming before the Grand Jury and the prosecutor will not allow you to testify or will not call you as a witness, and your testimony is essential to the defense of a person? This procedure may be utilized to get evidence before the Grand Jury that you feel may help to avoid the issuance of an indictment.

ANSWER:
We suggest you use the following procedure to get essential evidence before a Grand Jury that the Com. Attorney for whatever reason may be choosing to withhold.
We caution you that you will not be making a friend out of the Commonwealth Attorney, but your job is to represent you client. If your client is about to be indicted and you reasonably believe he should not be, and that he would not be indicted if the Grand Jury was to hear the evidence you or a witness can provide, then this may be the only way to get the evidence to the Grand Jury.

This procedure, we suggest, is based on sound legal principles, and actually worked for the author some years ago.

The criminal rules of procedure set out the powers of prosecutors and grand juries.
The Grand Jury is empowered to hear evidence which tends to protect a citizen against unfounded criminal prosecutions.

See: Rouse v. Commonwealth, No. 2002-SC-0298-MR (Ky. 12/18/2003) A grand jury has the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.

The powers of the Commonwealth Attorney are somewhat limited, and far less than the general public is lead to believe regarding the conduct of Grand Jury proceedings.
The Grand Jury has been called by some as the “Fourth Branch of Government�. They certainly are not the servant of the Commonwealth Attorney, unless they choose to be his servant. In fact the Rules show that he is the servant of the Grand Jury, and the Grand Jury reports to the court and not to the Commonwealth Attorney.

So if you have evidence that you need to get to the Grand Jury, and you believe the prosecutor will withhold this testimony, then you may seek an invitation from the Foreman of the Grand Jury to appear as a witness.

The Grand Jury can make its own decisions to allow a witness to appear, or to summons a witness, or to refuse a witness. The Commonwealth Attorney cannot prevent the Grand Jury from asking the Court to issue a summons for any witness.
The Foreperson can go around the Com. Attn. and directly seek the assistance of the Court in summoning witnesses.

So the next step is to see how to get the message to the Foreperson that you are seeking an invitation to appear and testify.

The person who has to make the decision to allow you in to testify is the Foreperson of the Grand Jury.

We suggest that you first seek your invitation by writing out a request to appear directed to the Foreperson, but giving it to the Com. Attorney to show your intent. Ask him to call you as a witness.
If he refuses to allow you to appear, ask him to please assure you that he will pass your request to the Grand Jury Foreperson.

If the Com. Attorney will not communicate that request, we suggest the following options to get the attention of the Foreperson:

1. Petition the court to issue an notice informing the Foreperson of the Grand Jury of your request to attend and be heard.
2. Send a letter to the Foreperson of the Grand Jury requesting the opportunity to be heard.
3. Knocking of the Grand Jury door when they are in session and passing your written request to appear before the grand jury. If the door is guarded by a bailiff or deputy, ask them to deliver your letter to the Foreperson.
4. Go to the press and blast the prosecutor for his hiding your testimony from the grand jury and hope the Grand Jury reads the paper and invites you in.


See the following rules and cases which buttress the argument that the Commonwealth Attorney is merely there to assist the Grand Jury.
Grand Jurors have the right to ask the Court to summons witnesses (thereby bypassing the prosecutor). They have the right to make the prosecutor leave the room when a witness testifies.

See the following rules and cases which buttress the argument that the Commonwealth Attorney is merely there to assist the Grand Jury. Grand Jurors have the right to ask the Court to summons witnesses (thereby bypassing the prosecutor). They have the right to make the prosecutor leave the room when a witness testifies.They have the right to issue their indictment or report to the Court and not to the prosecutor.

The prosecutor can be directed by the Grand Jury to draft their report as they direct.

Rule 5.02. Charge to grand jury.
The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge. The court shall further instruct the grand jurors concerning (a) their right to exclude the attorney for the Commonwealth while questioning witnesses, (b) their rights and duties to juvenile cases as provided in KRS 640.010, and (c) any other matter affecting their rights and duties as grand jurors which the court believes will assist them in the conduct of their business.


Rule 5.14. Duties of prosecuting attorney.

The attorney for the Commonwealth, or an assistant, designated by the attorney for the Commonwealth, shall attend the grand jurors when requested by them, and he or she may do so on his or her own initiative, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. The attorney for the Commonwealth or designated assistant shall also, when requested by them, draft indictments.

At the time of the return of the indictment of a defendant the attorney for the Commonwealth shall inform the court of the defendant’s status with respect to bail.


Criminal Rule 5.06. Attendance of witnesses.
The circuit court, upon request of the foreperson of the grand jury or of the
attorney for the Commonwealth, shall issue subpoenas for witnesses.

The attendance of witnesses may be coerced as in other judicial proceedings . RCr 7.02 shall apply to grand jury subpoenas

NOTE: A person wishing to testify before the Grand Jury can be summoned by request of the Foreperson of the Grand Jury and the Judge is required to issued process to summons that witness. This demonstrates that the prosecutor cannot refuse to admit a witness if the foreperson of the jury wants to hear the witness.

Rouse v. Commonwealth, No. 2002-SC-0298-MR (Ky. 12/18/2003)
A grand jury has the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburq v. Haves, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972).
As such, the circuit courts charge grand juries to “inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed.” RCr 5.02.
Once a grand jury has inquired into an offense and filed an indictment, however, “the grand jury’s function with respect to that particular indictment is concluded.” Bishop v. Caudill, Ky., 87 S.W.3d 1, 3 (2002). Any further use of the investigatory powers of a grand jury, for the sole or dominating purpose of trial preparation under a pending indictment, is improper. Id. at 4; Howard v. Commonwealth, Ky., 395 S.W.2d 355, 359 (1965) cert. dismissed , 384 U.S. 995, 86 S.Ct. 1905, 16 L.Ed.2d 1012 (1966).
Bishop v. Floyd Circuit Court, 87 S.W.3d 1 (Ky. 10/17/2002)
A grand jury is charged “to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge.” RCr 5.02 (emphasis added) ; Bowling_v. Sinnette , Ky., 666 S .W.2d 743, 745 (1984).
It follows that, after an indictment or information has been filed, the grand jury’s function with respect to that particular indictment is concluded. On the basis of additional inculpatory evidence, the grand jury can issue a new, superseding indictment charging the defendant with additional offenses or naming additional defendants; however, there is no authority permitting a grand jury to recall or quash a rendered indictment on the basis of newly discovered exculpatory evidence, or to amend a rendered indictment to add new charges or additional parties .

Hoskins v. Maricle, No. 2002-SC-0579-MR (Ky. 12/16/2004)
The Commonwealth’s attorney is the person with “primary responsibility [for] present[ing] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for the purpose of questioning witnesses and giving legal advice. RCr 5.14(1).

The Commonwealth’s attorney is the person with “primary responsibility [for] present[ing] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for the purpose of questioning witnesses and giving legal advice. RCr 5.14(1).However, the grand jurors may choose to hear no more evidence than that which suffices to convince them that an indictment is warranted, United States v. Williams, supra, at 53, 112 S.Ct. at 1745, and may exclude the Commonwealth’s attorney while they question witnesses, themselves. RCr 5.02.

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