Existing law authorizes a grand jury to inquire into all public offenses committed or triable within the county in which the grand jury is impaneled, sworn, and charged, and to present them to the court by indictment. Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, unless the offense was declared to the grand jury by one of its members, as described above.

Existing law authorizes a grand jury to inquire into all public offenses committed or triable within the county in which the grand jury is impaneled, sworn, and charged, and to present them to the court by indictment. Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, unless the offense was declared to the grand jury by one of its members, as described above.

Existing law authorizes a grand jury to inquire into all public offenses committed or triable within the county in which the grand jury is impaneled, sworn, and charged, and to present them to the court by indictment. Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer. officer, unless the offense was declared to the grand jury by one of its members, as described above.

Existing law makes it a crime for a person who, by any means whatsoever, willfully and knowingly, and without knowledge and consent of the grand jury, records, or attempts to record, all or part of the proceedings of any grand jury while it is deliberating or voting, or listens to or observes, or attempts to listen to or observe, the proceedings of any grand jury of which he or she is not a member while that jury is deliberating or voting.

This bill would make technical, nonsubstantive changes to that provision.

SENATE THIRD READING

STR Bill Id:SB 227

Author:(Mitchell)

As Amended Ver:April 27, 2015

Majority vote

SENATE VOTE: 23-12

SUMMARY: Prohibits a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer that led to the death of a person being detained or arrested by the peace officer, unless the offense was declared to the grand jury by one of its members.

EXISTING LAW:

1. Provides that one or more grand juries shall be drawn and summoned at least once per year in each county.

2. Requires that in all counties there shall be at least one grand jury drawn and impaneled in each year.

3. Provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties and as to any charges for public offenses returned to the court or likely to come before the grand jury.

4. Provides that the grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.

5. States that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county has been committed, he may declare it to his fellow jurors, who may investigate it.

6. States that a grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted.

7. States that a grand jury shall inquire into the condition and management of the public prisons within the county.

8. States that a grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county.

9. Provides that whenever the Attorney General considers that the public interest requires, he or she may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of those matters of a criminal nature that he or she desires to submit to it. He or she may take full charge of the presentation of the matters to the grand jury, issue subpoenas, prepare indictments, and do all other things incident thereto to the same extent as the district attorney may do.

10. Specifies that every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or she or any other grand juror has voted on a matter before them, is guilty of a misdemeanor.

11. Allows the district attorney of the county to at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by the grand jury, and may interrogate witnesses before the grand jury whenever he thinks it necessary. When a charge against or involving the district attorney, or anyone employed by or connected with the office of the district attorney, is being investigated by the grand jury, such district attorney, or assistant district attorney, or deputy district attorney, or all or anyone or more of them, shall not be allowed to be present before such grand jury when such charge is being investigated, in an official capacity.

12. States that except as specified, the grand jury shall not receive any evidence except that which would be admissible over objection at the trial of a criminal action, but the fact that evidence that would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the grand jury.

13. Allows the evidence to support the indictment to be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statement of a declarant made out of court and offered for the truth of the matter asserted, as long as the officer testifying as to a hearsay statement has either five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.

14. States that if an indictment has been found or accusation presented against a defendant, the court reporter shall certify and deliver to the clerk of the superior court a transcript of the grand jury proceedings for the defendant(s). The reporter shall complete the certification and delivery within 10 days after the indictment has been found or the accusation presented unless the court for good cause makes an order extending the time. The time shall not be extended more than 20 days.

15. The transcript shall not be open to the public until 10 days after its delivery to the defendant or the defendant's attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending a determination as to whether all or part of the transcript should be sealed. If the court determines that there is a reasonable likelihood that making all or any part of the transcript public may prejudice a defendant's right to a fair and impartial trial, that part of the transcript shall be sealed until the defendant's trial has been completed.

16. Allows the grand jury acting through its foreman and the attorney general or the district attorney to make a joint written request for public sessions of the grand jury. If the court finds that the subject matter of the investigation affects the general public welfare, involving the alleged corruption, misfeasance, or malfeasance in office or dereliction of duty of public officials or employees or of any person allegedly acting in conjunction or conspiracy with such officials or employees in such alleged acts, the court or judge may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public.

17. States that an indictment cannot be found without concurrence of at least 14 grand jurors in a county in which the required number of members of the grand jury is 23, at least eight grand jurors in a county in which the required number of members is 11, and at least 12 grand jurors in all other counties. When so found it shall be endorsed, "A true bill," and the endorsement shall be signed by the foreman of the grand jury. (Penal Code Section 940.)

FISCAL EFFECT: Unknown. This bill has been keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "When the actions of a peace officer result in the death of a member of the public, it is crucial that there is transparency in court proceedings. Transparency and accountability are key to establishing and keeping the trust of the public."

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0000958

Date of Hearing: June 16, 2015

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

SBPCA Bill Id:SB 227

Author:(Mitchell) – As Amended Ver:April 27, 2015

SUMMARY: Prohibits a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer that led to the death of a person being detained or arrested by the peace officer, unless the offense was declared to the grand jury by one of its members.

EXISTING LAW:

1. Provides that one or more grand juries shall be drawn and summoned at least once per year in each county. (Cal. Const. Art. I, Section 23.)
   
   
   

2. Requires that in all counties there shall be at least one grand jury drawn and impaneled in each year. (Pen. Code, § 905.)
   
   
   

3. Provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties and as to any charges for public offenses returned to the court or likely to come before the grand jury. (Pen. Code, § 914, subd. (a).)
   
   
   

4. Provides that the grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment. (Pen. Code, § 917.)

5. States that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county has been committed, he may declare it to his fellow jurors, who may investigate it. (Pen. Code, § 918.)

6. States that a grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted. (Pen. Code, § 919, subd. (a).)
   
   

7. States that a grand jury shall inquire into the condition and management of the public prisons within the county. (Pen. Code, § 919, subd. (b).)
   
   

8. States that a grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county. (Pen. Code, § 919, subd. (c).)
   
   

9. Provides that whenever the Attorney General considers that the public interest requires, he or she may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of those matters of a criminal nature that he or she desires to submit to it. He or she may take full charge of the presentation of the matters to the grand jury, issue subpoenas, prepare indictments, and do all other things incident thereto to the same extent as the district attorney may do. (Pen. Code, 923, subd. (a).)
   
   

10. Specifies that every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or she or any other grand juror has voted on a matter before them, is guilty of a misdemeanor. (Pen. Code, § 914.1, subd. (a).)
    
    

11. Allows the district attorney of the county to at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by the grand jury, and may interrogate witnesses before the grand jury whenever he thinks it necessary. When a charge against or involving the district attorney, or anyone employed by or connected with the office of the district attorney, is being investigated by the grand jury, such district attorney, or assistant district attorney, or deputy district attorney, or all or anyone or more of them, shall not be allowed to be present before such grand jury when such charge is being investigated, in an official capacity. (Pen. Code, § 935.)
    
    

12. States that except as specified, the grand jury shall not receive any evidence except that which would be admissible over objection at the trial of a criminal action, but the fact that evidence that would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the grand jury. (Pen. Code, § 939.6, subd. (b).)
    
    

13. Allows the evidence to support the indictment to be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statement of a declarant made out of court and offered for the truth of the matter asserted, as long as the officer testifying as to a hearsay statement has either five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings. (Pen. Code, § 939.6, subd. (c).)
    
    

14. States that if an indictment has been found or accusation presented against a defendant, the court reporter shall certify and deliver to the clerk of the superior court a transcript of the grand jury proceedings for the defendant(s). The reporter shall complete the certification and delivery within 10 days after the indictment has been found or the accusation presented unless the court for good cause makes an order extending the time. The time shall not be extended more than 20 days. (Pen. Code, § 938.1, subd. (a).)
    
    

15. The transcript shall not be open to the public until 10 days after its delivery to the defendant or the defendant's attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending a determination as to whether all or part of the transcript should be sealed. If the court determines that there is a reasonable likelihood that making all or any part of the transcript public may prejudice a defendant's right to a fair and impartial trial, that part of the transcript shall be sealed until the defendant's trial has been completed. (Pen. Code, § 938.1, subd. (b).)
    
    

16. Allows the grand jury acting through its foreman and the attorney general or the district attorney to make a joint written request for public sessions of the grand jury. If the court finds that the subject matter of the investigation affects the general public welfare, involving the alleged corruption, misfeasance, or malfeasance in office or dereliction of duty of public officials or employees or of any person allegedly acting in conjunction or conspiracy with such officials or employees in such alleged acts, the court or judge may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public. (Pen. Code, § 939.1, subd. (a).)
    
    

17. States that an indictment cannot be found without concurrence of at least 14 grand jurors in a county in which the required number of members of the grand jury is 23, at least eight grand jurors in a county in which the required number of members is 11, and at least 12 grand jurors in all other counties. When so found it shall be endorsed, "A true bill," and the endorsement shall be signed by the foreman of the grand jury. (Pen. Code, § 940.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "When the actions of a peace officer result in the death of a member of the public, it is crucial that there is transparency in court proceedings. Transparency and accountability are key to establishing and keeping the trust of the public.”
   
   

2. California Has Two Procedures to Make Probable Cause Determinations in Felony Cases; Preliminary Hearings and Grand Juries: The prosecution begins a felony case either by filing a grand jury indictment in the trial court or by filing a complaint with a magistrate. (Cal. Const., art. I, section 14.) If a complaint is filed, a preliminary hearing must be held before a magistrate to endure that there is enough evidence to hold the defendant to answer in the trial court. (Pen. Code, § 872.) When a grand jury indictment is filed, there is no right to a preliminary hearing. Bowens v. Superior Court (1991) 1 Cal 4th 36.
   
   The vast majority of cases proceed by preliminary hearing. Preliminary hearings afford the accused of a public hearing before a neutral magistrate and defense counsel. Grand juries are not adversarial in nature, meaning the defense attorney and the accused are not present, and they are held in secret. Additionally, when grand juries are utilized, witnesses are not subject to cross-examination and evidence presented is not subject to objection on issues of admissibility
   
   At a preliminary hearing, the prosecution must present sufficient evidence to convince the magistrate that probable cause exists to believe that a crime has been committed and that the defendant committed it. (Pen. Code §§ 872 and 995.) If the prosecution shows probable cause, the magistrate will hold the defendant to answer to the charge in the trial court. The prosecution must then file an information in the court within 15 days. (Pen. Code §§ 739 and 1382(a)(1).)
   
   

3. Secrecy in the Grand Jury Process: A criminal grand jury proceeding is conducted in complete secrecy. The only persons present other than the grand jury are District Attorney representatives, a court reporter, who is sworn to secrecy, and witnesses, who testify one at a time. The witnesses are not allowed to have an attorney present, but may consult with an attorney outside the hearing room when the witness deems it necessary to seek legal advice. Since there are no attorneys present other than the prosecutor, there is no cross examination. All testimony is taken under oath. The jury foreperson presides and one of the jurors takes the role of a court clerk by calling witnesses, keeping track of evidence and performing other similar duties. Jurors may ask questions, but they are written and submitted to the prosecutor conducting the hearing to determine that they meet the rules of evidence. The prosecutor is required to introduce exculpatory evidence, which is evidence that might mitigate the likelihood of an indictment; in other words, evidence in favor of the accused. An indictment, endorsed as a “true bill,” may be submitted to the court only if at least a “supermajority” of grand jurors concurs. (The California Grand Jury System (2014), pp. 10-11.)
   
   While the grand jury hearing itself is secret, existing law does provide that that a transcript of the grand jury hearing be made available to the public. If there is a criminal indictment, a transcript of the grand jury hearing must be provided to the court within 10 days. (Pen. Code, § 938.1, subd. (a).) That time frame can be extended by a judge for up to 20 days based on good cause. The transcript of the grand jury hearing will be open to the public 10 days after it has been provided to the defendant, or the defendant’s attorney, except under specified circumstances. (Pen. Code, § 938, subd. (b).)
   
   

4. Prevalence of Grand Juries in Criminal Cases: The California Grand Jury System (2014), p. 6., states that based on their review “four states require a grand jury indictment for all crimes; 14 states and the District of Columbia require grand jury indictments for all felonies; six states mandate grand jury indictment only for capital crimes; 25 states, including California, make grand jury indictments optional; and in a single state, Pennsylvania, the grand jury lacks the power to indict.”
   
   

5. Judge LaDoris Cordell Calls for Abolishing the Use of Grand Juries: In the wake of the deaths of Eric Garner and Michael Brown, Judge LaDoris Cordell called for abolishing the grand juries in a recent editorial:

In state courts, judges preside over probable cause hearings called preliminary examinations. These “prelims” are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

About half of the states have both prelims and criminal grand juries. In these states, it is in the sole discretion of prosecutors whether to hold prelims or to convene grand juries. Unlike prelims, criminal grand jury proceedings are not adversarial. No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.

In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma. If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover. The Michael Brown and Eric Garner cases are examples of how prosecutors manipulate the grand jury process.

In the Michael Brown case, an assistant prosecutor gave an instruction to the jurors about the law on an officer’s reasonable use of force. However, in 1985 the U.S. Supreme Court revised this law by placing some limits on the use of force. When officer Darren Wilson testified, the jurors understood his story within the framework of the erroneous, broader definition of the use of force. It was not until weeks later that the prosecutor acknowledged her error; and even then, she failed to explain to the jurors how the current law differed from the pre-1985 version. This egregious error would not have occurred had a judge and defense attorney been in the room.

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

‘One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse … he still posed a threat, not only to me, to anybody else that confronted him.’

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

The prosecutor improperly asked Wilson leading questions that suggested the answers the prosecutor wanted. For example, he asked the officer, “So, you weren’t really geared to handle that call?” And: “So nobody heard you say ‘shots fired’ to your knowledge?” And: “In your mind, him grabbing the gun is what made the difference where you felt you had to use a weapon to stop him?” At one point, the prosecutor allowed Wilson to give an uninterrupted 1,889-word narrative about the shooting.

All that we know about the Eric Garner grand jury proceeding is that a majority of the grand jurors refused to indict the officer. We will never know why there was no indictment because what the prosecutors said, how they said it, what evidence they presented, and what they asked the witnesses will forever remain secret, unless the transcript is opened to the public by court order

Secrecy in grand jury proceedings was intended to protect the reputations of the unindicted, individuals accused of crimes who grand jurors determined should not stand trial. The entire world knew the names of the unindicted officers in the Garner and Brown cases. Grand jury secrecy did nothing to protect their reputations.

By convening grand juries, the prosecutors in Missouri and New York ensured that there would be no justice for Michael Brown and Eric Garner. Sadly, these two men are gone. But if we abolish criminal grand juries, at least their deaths will not have been in vain.

(Grand Juries Should be Abolished, LaDoris Hazard Cordell, December 9, 2014, http://www.slate.com/articles/news_and_politics/jurisprudence/2014/12/abolish_grand_juries_justice_for_eric_garner_and_michael_brown.single.html?print.)

6. Argument in Support: According to the Friends Committee on Legislation of California, “Criminal grand jury proceedings differ from traditional trials in numerous ways. There are no defense attorneys or judges. The rules of evidence do not apply and there are no cross examinations of witnesses. Moreover, grand jury proceedings lack transparency.
   
   “Recent events in Ferguson, Missouri and New York City led to the deaths of Michael Brown and Eric Garner at the hands of the police. In both instances, law enforcement officers were not indicted by grand juries. The failure to hold anyone accountable undermines public respect for the law. People are more likely to cooperate with law enforcement and to obey the law when they perceive that the law is applied equally fairly. That the decisions on whether to try the officers involved were shrouded in secrecy undermines confidence in our legal system and polarizes entire communities.
   
   

“Given that in today’s world of instant news where virtually anyone can record the police in their performance of duties and post the video on line, secrecy in grand jury proceedings has become obsolete. There cannot be dual systems of justice, one for ordinary citizens and one for law enforcement. By definition that is the opposite of justice. When police misconduct may have resulted in the death of a civilian, the public has a right to demand that the allegation is taken seriously and is thoroughly investigated in a manner that is fair, objective and transparent.”

7. Argument in Opposition: According to the California District Attorneys Association, “While the use of criminal grand jury is relatively rare in cases of officer-involved shootings in California, we disagree on principle with the idea of taking away an option that can be an appropriate and useful prosecutorial tool in certain situations.
   
   “The grand jury system has been the subject of intense national scrutiny over the last several “months, particularly after grand juries failed to return indictments in high-profile cases against police officers in Ferguson, Missouri and Staten Island, New York. Despite the calls from nay critics to ‘fix’ the grand jury system, it important to understand the rules operating in California grand juries, and consider other alternatives to the outright elimination of the grand jury as an option for a particular type of offense.
   
   “The California criminal grand jury is decidedly different and amazingly fairer than its federal counterpart and that of many other states. First, under PC 939.6(c), the California grand jury does not allow for hearsay evidence, with very limited exceptions. Even more importantly, under PC 939.71, California prosecutors have a legal obligation to present known exculpatory evidence at the grand jury or suffer a case dismissal. Neither of these limitations on prosecutorial power and control are present in the federal grand jury or most other state grand juries. Thus, California grand juries offer a fuller seeking of the truth for all sides – by live testimony –than the often ‘assembly-line’ grand juries found elsewhere.
   
   “While there may be fundamental deficiencies in the grand jury systems of other states, we do not believe that those deficiencies exist in California to justify the outright prohibition of criminal grand juries in fatal officer-involved shootings.
   
   “One of the primary criticisms of the grand jury is the lack of transparency regarding what happens inside the courtroom. PC 938.1 requires that if an indictment is returned, a transcript of the grand jury proceedings be prepared and delivered to the prosecution and defense, and the opened to the public within 10 days, unless a court orders otherwise. While in Ferguson, the proceedings were transcribed and presented to the public, in California and (and New York), the law prevents the transcript from being released if there is no indictment.
   
   “Perhaps a more moderate approach that would still provide more transparency would be to modify PC 938.1 to allow for preparation and public disclosure of grand jury transcripts in law enforcement deadly force cases, at least where the civilian victim is unarmed. We would welcome the opportunity to discuss this alternative, or offer language to that effect.”
   
   

8. Prior Legislation:
   
   

   1. SB 1474 (Hancock), Chapter 568, Statutes of 2012, allowed the Attorney General to convene a statewide grand jury in cases of theft or fraud where the same defendant or defendants committed the offense in multiple counties.
      
      

   2. SB 391 (Gaines), of the 2011-2012 Legislative Session, would have required the board to deny parole for inmates serving indeterminate life terms unless the inmate proved that consideration of the public safety does not require a more lengthy period of incarceration. SB 391 died in Senate Public Safety.
      
      

   3. SB 1168 (Cedillo), of the 2009-2010 Legislative Session, would have permitted the city attorneys of specified municipalities within the County of Los Angeles to impanel an additional grand jury for the purpose of investigating misdemeanor offenses. SB 1168 failed in Assembly Public Safety.
      
      

   4. AB 1906 (Cook), Chapter 87, Statutes of 2010, authorized the Presiding Judge of the Superior Court of the County of San Bernardino, or the judge appointed by the presiding judge to supervise the grand jury, to impanel an additional civil grand jury, for a term to be determined by the presiding or supervising judge, in accordance with specified procedures.
      
      

   5. SB 796 (Runner), Chapter 82, Statutes of 2007, authorized the Presiding Judge of the Superior Court of the County of Los Angeles, or the judge appointed by the presiding judge to supervise the grand jury, to instead impanel up to 2 additional grand juries, in accordance with specified procedures.

REGISTERED SUPPORT / OPPOSITION:

Support

California Attorneys for Criminal Justice
California Public Defenders Association
California State Conference of NAACP
Criminal Trial Lawyers Association of Northern California
Free Indeed Reentry Project
Friends Committee on Legislation of California
Los Angeles Urban League
Office of the Independent Police Auditor, City of San Jose

San Francisco Public Defender

Opposition

California District Attorneys Association
California Grand Jurors’ Association
California Police Chiefs Association

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 227

Author: Mitchell (D)

Amended: 4/27/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/21/15

AYES: Hancock, Leno, Liu, McGuire, Monning

NOES: Anderson, Stone

SUBJECT: Grand juries: powers and duties

SOURCE: Author

DIGEST: This bill prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

ANALYSIS:

Existing law:

1. Provides that one or more grand juries shall be drawn and summoned at least once per year in each county. (California Constitution Article I, Section 23.)

2. Requires that in all counties there shall be at least one grand jury drawn and impaneled in each year. (Penal Code § 905.)

3. Provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties and as to any charges for public offenses returned to the court or likely to come before the grand jury. (Penal Code § 914(a).)

4. Provides that the grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment. (Penal Code § 917.)

5. States that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county has been committed, he may declare it to his fellow jurors, who may investigate it. (Penal Code § 918.)
   
   

6. States that a grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted. (Penal Code § 919(a).)

7. States that a grand jury shall inquire into the condition and management of the public prisons within the county. (Penal Code § 919(b).)

8. States that a grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county. (Penal Code § 919(c).)

This bill prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

Comments

According to the Author:

SB 227 prohibits the use of a criminal grand jury when evidence indicates a peace officer’s use of excessive force or a firearm may have contributed to the death of a person being detained or arrested by the peace officer.

There is virtually no available information on how criminal grand juries are used in California; no data on the number of cases that are heard, the kinds of cases that are heard, or the outcomes of those proceedings. Some counties (specifically Los Angeles and Santa Clara counties) have adopted policies that preclude the criminal grand jury being used in cases where an officer’s actions may be the cause of the death of a suspect. However, these policies have been instituted at the will of the county’s district attorneys and are subject to change at any time.

The grand jury system has recently come under fire nationally as several incidents of officer-involved deaths have resulted in the officers in question being released without charges. To the public who has witnessed these incidents, the outcome of the criminal grand jury proceedings can seem unfair or inexplicable. The criminal grand jury system lacks transparency and is not adversarial in nature; No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections.

When the actions of a peace officer result in the death of a member of the public, it is crucial that there is transparency in court proceedings. Transparency and accountability are key to establishing and keeping the trust of the public.

Effect of this Legislation. This legislation prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer that led to the death of a person being detained or arrested. As discussed in an opinion by the Attorney General’s office, a grand jury typically hears matters that are brought by the district attorney, but has the ability to initiate its own investigation.

The accusatory functions of the grand jury authorized by section 917 and Government Code section 3060 are usually initiated by the district attorney who is authorized by section 935 to present evidence of crime or official misconduct to the grand jury. The district attorney will have had the offense investigated and will have marshalled the evidence relevant thereto prior to its presentation to the grand jury. The grand jury then evaluates the evidence in secret deliberations (see §§ 939, 924.2) and decides by vote whether to issue an indictment or accusation. This investigative process on which an indictment or accusation may be founded may be styled a formal investigation by the grand jury. All testimony must be sworn and only evidence which is admissible over objection in a criminal trial may be received in such formal investigations. (§ 939.6.) A stenographic reporter must record the testimony in shorthand and prepare a transcript thereof. (§§ 938 & 938.1.) An indictment can be found only with the concurrence of 12 grand jurors (14 for 23 member grand juries) and 12 votes are also required for an accusation. (See § 640 & Gov. Code, § 3060.) Grand jurors voting for an indictment must have heard all of the evidence presented thereon. (Stern v. Superior Court (1947) 78 Cal.App.2d 9, 16.)

(Office of the Attorney General of the State of California, No. 83-903, 67 Ops. Cal. Atty. Gen. 58.)

The opinion goes on to state:

The grand jury is not limited to matters initiated by the district attorney in performing its accusatory role. Section 918 provides:

“If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he may declare it to his fellow jurors, who may thereupon investigate it.”

(Id.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/24/15)

California Attorneys for Criminal Justice

California Public Defenders Association

California State Conference of the National Association for the Advancement of

Colored People

Friends Committee of Legislation of California

Two Individuals

OPPOSITION: (Verified 4/24/15)

California District Attorneys Association

ARGUMENTS IN SUPPORT: The California State Conference of the National Association for the Advancement of Colored People states in support:

The highly profiled deaths of Michael Brown and Eric Garner during the summer of 2014 have created a national debate on the effectiveness of grand juries. In both cases, grand juries chose not to indict the officers involved after local prosecutors were in charge of presenting the case. Ultimately, the convening of the grand juries in these cases has provided no justice for the deaths of Eric Garner and Michael Brown. In high profile cases in which an officer uses excessive or deadly force, local prosecutors face a predicament. If they do not choose to file charges against the officers, they risk the disapproval and criticism of the community. Conversely, if the local prosecutor does decide to press charges, they jeopardize their relationship with law enforcement and their unions. The option to proceed with a criminal grand jury exonerates the prosecutor of their duties and allows them to use the grand jury as a pawn for political cover.

A large portion of prosecutors are experienced trial lawyers that are capable of indicting any offender. Prosecutors indict every single day in the state of California and across the nation without the need for a grand jury. Prohibiting criminal grand juries in cases where law enforcement has used excessive or deadly force increases transparency and accountability. SB 227 is great policy in that it would establish trust between the community, law enforcement and the justice system. SB 227 also facilitates the prosecutor’s ability of fully participate in the judicial process so that true justice can be served.

ARGUMENTS IN OPPOSITION: The California District Attorneys Association states:

The grand jury system has been the subject of intense national scrutiny over the last several months, particularly after grand juries failed to return indictments in high-profile cases against police officers in Ferguson, Missouri and Staten Island, New York.  Despite the calls from many critics to "fix" the grand jury system, it's important to understand the rules operating in California grand juries, and consider other alternatives to the outright elimination of the grand jury as an option for a particular type of offense.

The California criminal grand jury is decidedly different and amazingly fairer than its federal counterpart and that of many other states.  First, under PC 939.6(c), the California grand jury does not allow for hearsay evidence, with very limited exceptions.  Even more importantly, under PC 939.71, California prosecutors have a legal obligation to present known exculpatory evidence at the grand jury or suffer a case dismissal.  Neither of these limitations on prosecutorial power and control are present in the federal grand jury or most other state grand juries.  Thus, California grand juries offer a fuller seeking of the truth for all sides – by live testimony – than the often “assembly-line” grand juries found elsewhere.

While there may be fundamental deficiencies in the grand jury systems of other states, we do not believe that those deficiencies exist in California to justify the outright prohibition of criminal grand juries in fatal officer-involved shootings.

One of the primary criticisms of the grand jury is the lack of transparency regarding what happens inside the courtroom. PC 938.1 requires that if an indictment is returned, a transcript of the grand jury proceedings be prepared and delivered to the prosecution and defense, and then opened to the public within 10 days, unless a court orders otherwise. While in Ferguson, the proceedings were transcribed and presented to the public, in California (and New York), the law prevents the transcript from being released if there is no indictment.

Perhaps a more moderate approach that would still provide more transparency would be to modify PC 938.1 to allow for preparation and public disclosure of grand jury transcripts in law enforcement deadly force cases, at least where the civilian victim is unarmed. We would welcome the opportunity to discuss this alternative, or offer language to that effect.

Prepared by: Jessica Devencenzi / PUB. S. /

5/6/15 17:14:44

**** END ****

 THIRD READING  

Bill No: SB 227

Author: Mitchell (D)

Amended: 4/27/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/21/15

AYES: Hancock, Leno, Liu, McGuire, Monning

NOES: Anderson, Stone

SUBJECT: Grand juries: powers and duties

SOURCE: Author

DIGEST: This bill prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

ANALYSIS:

Existing law:

1. Provides that one or more grand juries shall be drawn and summoned at least once per year in each county. (California Constitution Article I, Section 23.)

2. Requires that in all counties there shall be at least one grand jury drawn and impaneled in each year. (Penal Code § 905.)

3. Provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties and as to any charges for public offenses returned to the court or likely to come before the grand jury. (Penal Code § 914(a).)

4. Provides that the grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment. (Penal Code § 917.)

5. States that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county has been committed, he may declare it to his fellow jurors, who may investigate it. (Penal Code § 918.)
   
   

6. States that a grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted. (Penal Code § 919(a).)

7. States that a grand jury shall inquire into the condition and management of the public prisons within the county. (Penal Code § 919(b).)

8. States that a grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county. (Penal Code § 919(c).)

This bill prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

NOTE: See Senate Public Safety Committee analysis for a complete discussion of this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/24/15)

California Attorneys for Criminal Justice

California Public Defenders Association

California State Conference of the National Association for the Advancement of

Colored People

Friends Committee of Legislation of California

Two Individuals

OPPOSITION: (Verified 4/24/15)

California District Attorneys Association

ARGUMENTS IN SUPPORT: The California State Conference of the National Association for the Advancement of Colored People states in support:

The highly profiled deaths of Michael Brown and Eric Garner during the summer of 2014 have created a national debate on the effectiveness of grand juries. In both cases, grand juries chose not to indict the officers involved after local prosecutors were in charge of presenting the case. Ultimately, the convening of the grand juries in these cases has provided no justice for the deaths of Eric Garner and Michael Brown. In high profile cases in which an officer uses excessive or deadly force, local prosecutors face a predicament. If they do not choose to file charges against the officers, they risk the disapproval and criticism of the community. Conversely, if the local prosecutor does decide to press charges, they jeopardize their relationship with law enforcement and their unions. The option to proceed with a criminal grand jury exonerates the prosecutor of their duties and allows them to use the grand jury as a pawn for political cover.

A large portion of prosecutors are experienced trial lawyers that are capable of indicting any offender. Prosecutors indict every single day in the state of California and across the nation without the need for a grand jury. Prohibiting criminal grand juries in cases where law enforcement has used excessive or deadly force increases transparency and accountability. SB 227 is great policy in that it would establish trust between the community, law enforcement and the justice system. SB 227 also facilitates the prosecutor’s ability of fully participate in the judicial process so that true justice can be served.

ARGUMENTS IN OPPOSITION: The California District Attorneys Association states:

The grand jury system has been the subject of intense national scrutiny over the last several months, particularly after grand juries failed to return indictments in high-profile cases against police officers in Ferguson, Missouri and Staten Island, New York.  Despite the calls from many critics to "fix" the grand jury system, it's important to understand the rules operating in California grand juries, and consider other alternatives to the outright elimination of the grand jury as an option for a particular type of offense.

The California criminal grand jury is decidedly different and amazingly fairer than its federal counterpart and that of many other states.  First, under PC 939.6(c), the California grand jury does not allow for hearsay evidence, with very limited exceptions.  Even more importantly, under PC 939.71, California prosecutors have a legal obligation to present known exculpatory evidence at the grand jury or suffer a case dismissal.  Neither of these limitations on prosecutorial power and control are present in the federal grand jury or most other state grand juries.  Thus, California grand juries offer a fuller seeking of the truth for all sides – by live testimony – than the often “assembly-line” grand juries found elsewhere.

While there may be fundamental deficiencies in the grand jury systems of other states, we do not believe that those deficiencies exist in California to justify the outright prohibition of criminal grand juries in fatal officer-involved shootings.

One of the primary criticisms of the grand jury is the lack of transparency regarding what happens inside the courtroom. PC 938.1 requires that if an indictment is returned, a transcript of the grand jury proceedings be prepared and delivered to the prosecution and defense, and then opened to the public within 10 days, unless a court orders otherwise. While in Ferguson, the proceedings were transcribed and presented to the public, in California (and New York), the law prevents the transcript from being released if there is no indictment.

Perhaps a more moderate approach that would still provide more transparency would be to modify PC 938.1 to allow for preparation and public disclosure of grand jury transcripts in law enforcement deadly force cases, at least where the civilian victim is unarmed. We would welcome the opportunity to discuss this alternative, or offer language to that effect.

Prepared by: Jessica Devencenzi / PUB. S. /

5/4/15 11:15:34

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 227 Hearing Date: April 21, 2015

Subject: Grand Juries: Powers and Duties

HISTORY

Source: Author

Prior Legislation: None known

Support: California State Conference of The National Association for the Advancement of Colored People; Friends Committee of Legislation of California; California Public Defenders Association; California Attorneys for Criminal Justice; Office of the independent Police Auditor, City of San Jose

Opposition: California District Attorneys Association

PURPOSE

The purpose of this legislation is to prohibit a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

Existing law provides that one or more grand juries shall be drawn and summoned at least once per year in each county. (California Constitution Article I, Section 23.)

Existing law requires that in all counties there shall be at least one grand jury drawn and impaneled in each year. (Penal Code § 905.)

Existing law provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties and as to any charges for public offenses returned to the court or likely to come before the grand jury. (Penal Code § 914(a).)

Existing law provides that the grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment. (Penal Code § 917.)

Existing law states that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county has been committed, he may declare it to his fellow jurors, who may investigate it. (Penal Code § 918.)

Existing law states that a grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted. (Penal Code § 919(a).)

Existing law states that a grand jury shall inquire into the condition and management of the public prisons within the county. (Penal Code § 919(b).)

Existing law states that a grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county. (Penal Code § 919(c).)

This bill would prohibit a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer, as specified.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;

• 141.5% of design bed capacity by February 28, 2015; and,

• 137.5% of design bed capacity by February 28, 2016.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for Legislation

According to the Author:

SB 227 prohibits the use of a criminal grand jury when evidence indicates a peace officer’s use of excessive force or a firearm may have contributed to the death of a person being detained or arrested by the peace officer.

There is virtually no available information on how criminal grand juries are used in California; no data on the number of cases that are heard, the kinds of cases that are heard, or the outcomes of those proceedings. Some counties (specifically Los Angeles and Santa Clara counties) have adopted policies that preclude the criminal grand jury being used in cases where an officer’s actions may be the cause of the death of a suspect. However, these policies have been instituted at the will of the county’s district attorneys and are subject to change at any time.

The grand jury system has recently come under fire nationally as several incidents of officer-involved deaths have resulted in the officers in question being released without charges. To the public who has witnessed these incidents, the outcome of the criminal grand jury proceedings can seem unfair or inexplicable. The criminal grand jury system lacks transparency and is not adversarial in nature; No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections.

When the actions of a peace officer result in the death of a member of the public, it is crucial that there is transparency in court proceedings. Transparency and accountability are key to establishing and keeping the trust of the public.

2. Recent Events

In the wake of the deaths of Eric Garner and Michael Brown, Judge La Doris Cordell called for abolishing the grand juries in a recent editorial:

In state courts, judges preside over probable cause hearings called preliminary examinations. These “prelims” are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

About half of the states have both prelims and criminal grand juries. In these states, it is in the sole discretion of prosecutors whether to hold prelims or to convene grand juries. Unlike prelims, criminal grand jury proceedings are not adversarial. No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.

In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma. If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover. The Michael Brown and Eric Garner cases are examples of how prosecutors manipulate the grand jury process.

In the Michael Brown case, an assistant prosecutor gave an instruction to the jurors about the law on an officer’s reasonable use of force. However, in 1985 the U.S. Supreme Court revised this law by placing some limits on the use of force. When officer Darren Wilson testified, the jurors understood his story within the framework of the erroneous, broader definition of the use of force. It was not until weeks later that the prosecutor acknowledged her error; and even then, she failed to explain to the jurors how the current law differed from the pre-1985 version. This egregious error would not have occurred had a judge and defense attorney been in the room.

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse … he still posed a threat, not only to me, to anybody else that confronted him.

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

The prosecutor improperly asked Wilson leading questions that suggested the answers the prosecutor wanted. For example, he asked the officer, “So, you weren’t really geared to handle that call?” And: “So nobody heard you say ‘shots fired’ to your knowledge?” And: “In your mind, him grabbing the gun is what made the difference where you felt you had to use a weapon to stop him?” At one point, the prosecutor allowed Wilson to give an uninterrupted 1,889-word narrative about the shooting.

All that we know about the Eric Garner grand jury proceeding is that a majority of the grand jurors refused to indict the officer. We will never know why there was no indictment because what the prosecutors said, how they said it, what evidence they presented, and what they asked the witnesses will forever remain secret, unless the transcript is opened to the public by court order.

Secrecy in grand jury proceedings was intended to protect the reputations of the unindicted, individuals accused of crimes who grand jurors determined should not stand trial. The entire world knew the names of the unindicted officers in the Garner and Brown cases. Grand jury secrecy did nothing to protect their reputations.

By convening grand juries, the prosecutors in Missouri and New York ensured that there would be no justice for Michael Brown and Eric Garner. Sadly, these two men are gone. But if we abolish criminal grand juries, at least their deaths will not have been in vain.

(Grand Juries Should be Abolished, LaDoris Hazard Cordell, December 9, 2014, http://www.slate.com/articles/news_and_politics/jurisprudence/2014/12/abolish_grand_juries_justice_for_eric_garner_and_michael_brown.single.html?print.)

3. Effect of This Legislation

This legislation would prohibit a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer that led to the death of a person being detained or arrested. As discussed in an opinion by the Attorney General’s office, a grand jury typically hears matters that are brought by the district attorney, but has the ability to initiate its own investigation.

The accusatory functions of the grand jury authorized by section 917 and Government Code section 3060 are usually initiated by the district attorney who is authorized by section 935 to present evidence of crime or official misconduct to the grand jury. The district attorney will have had the offense investigated and will have marshalled the evidence relevant thereto prior to its presentation to the grand jury. The grand jury then evaluates the evidence in secret deliberations (see §§ 939, 924.2) and decides by vote whether to issue an indictment or accusation. This investigative process on which an indictment or accusation may be founded may be styled a formal investigation by the grand jury. All testimony must be sworn and only evidence which is admissible over objection in a criminal trial may be received in such formal investigations. (§ 939.6.) A stenographic reporter must record the testimony in shorthand and prepare a transcript thereof. (§§ 938 & 938.1.) An indictment can be found only with the concurrence of 12 grand jurors (14 for 23 member grand juries) and 12 votes are also required for an accusation. (See § 640 & Gov. Code, § 3060.) Grand jurors voting for an indictment must have heard all of the evidence presented thereon. (Stern v. Superior Court (1947) 78 Cal.App.2d 9, 16.)

(Office of the Attorney General of the State of California, No. 83-903, 67 Ops. Cal. Atty. Gen. 58.)

The opinion goes on to state:

The grand jury is not limited to matters initiated by the district attorney in performing its accusatory role. Section 918 provides:

“If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he may declare it to his fellow jurors, who may thereupon investigate it.”

(Id.)

As currently drafted, this legislation could be read to limit the ability of a grand jury to, on its own, initiate an investigation into an offense that involves a shooting or use of excessive force by a peace officer that led to the death of a person being detained or arrested. In order to preserve the ability of the grand jury to investigate such matters on its own, members may wish to consider recommending an amendment stating that the prohibitions added by this legislation are not intended to impede the powers provided to the grand jury in Penal Code Section 918.

--END--