Judge Susan Gibson Dismisses Coach’s Indictment Due to Failure of Commonwealth to Notify Grand Jury of His Request to Testify – Grand Jury Not Required to Grant Such Request But Must be Informed by Commonwealth.

August 13, 2009

 Jefferson Circuit Judge Susan Schultz Gibson this week dismissed an indictment against Pleasure Ridge Park High School Coach Jason Stinson.  The Commonwealth had failed to advise the Grand Jury that heard the indictment handed down last week, that Stinson had requested that the Grand Jury allow him to appear and testify before them.

 The Commonwealth admitted they had not disclosed the Coach’s request to appear before the Grand Jury, but said that request only applied to the original panel that indicted him, and that the most recent indictment for Wanton Endangerment was issued by a new Grand Jury and the request had not been restated.

 Judge Gibson did not buy that argument.   The Commonwealth can still go back and present another request to the Grand Jury, but for the moment this indictment is dismissed.

 Criminal Rule 5.08  grants the defendant the right to request an appearance before the Grand Jury that indicts him/her. 

 While the Defendant may request that the Grand Jury hear his testimony before an indictment is considered, there is no obligation for the Grand Jury to grant the request. 

 RCr 5.08 Evidence for defendant

If the defendant notifies the attorney for the Commonwealth in writing of his or her desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so.

HISTORY: Amended by Order 98-3, eff. 3-1-99; prior amendment eff. 9-1-81 (Order 81-5); adopted eff. 1-1-63

  Pankey v. Com., 485 S.W.2d 513 (Ky., 1972)

 “The appellants also claimed error in that they were not permitted to appear as witnesses before the grand jury which indicted them. We do not find in the record a request on their part that they be permitted to appear before the grand jury but in any event the denial of such a request would not have been error. It is not the function of the grand jury to determine guilt or innocence but only to determine whether the evidence offered by the state is sufficient to warrant putting the accused to trial. The accused has no constitutional right to appear as a witness before the grand jury or to examine other witnesses who appear. 38 C.J.S. Grand Juries §39.”

 Stopher v. Commonwealth, 2001 KY 247 (KY, 2001)

First, Appellant urges this Court to declare unconstitutional that part of RCr 5.08 which provides: “If the defendant notifies the attorney for the Commonwealth in writing of his desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so.”

 Appellant argues that requiring a defendant to go through the Commonwealth’s attorney, the adversarial party, in order to present evidence to the grand jury is a constitutional violation. Appellant cites no authority for his position, and we are of the opinion that since the Commonwealth is charged with assisting the grand jury, it is, in fact, the appropriate party to inform the grand jury that a defendant wishes to present evidence. RCr 5.41. There is no constitutional right to appear before the grand jury; RCr 5.08 is an indulgence of this Court. We find no distinction for a capital case.

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