By: Christopher D. Carusone
In July 2017, the Pennsylvania Supreme Court created the Investigating Grand Jury Task Force to review how statewide and county investigating grand juries operate in Pennsylvania. In November 2019, the task force published a comprehensive report and set of recommendations to better define the roles of the Pennsylvania Supreme Court, supervising judge, and the prosecutor in investigative grand jury matters. These recommendations also included proposals for improving grand jury secrecy, eliminating (or better regulating) grand jury reports, and allowing local district attorneys to create regional investigating grand juries. On Nov. 26, 2022, the Pennsylvania criminal procedural rules committee published proposed changes to the Pennsylvania Rules of Criminal Procedure predicated on the task force’s recommendations and recent case law.
Most of the proposed changes simply codify the procedures that are already part of modern investigating grand jury practice, including but not limited to the prosecutor’s ability to instruct the grand jurors on the law, the colloquy to be read to grand jury witnesses before being sworn to testify, the venue for filing motions for return of property seized pursuant to a grand jury search warrant, and the requirement that counsel for witnesses appearing before the grand jury be sworn to secrecy except when disclosure is authorized by law or permitted by the court. However, at least two proposed rules alter existing grand jury practice.
Pretrial Discovery of Grand Jury Transcripts
The disclosure of grand jury transcripts in discovery (after the filing of criminal charges) has always been a cumbersome process. First, it requires defense counsel to apply to the grand jury supervising judge for the disclosure of the transcripts instead of the trial judge. Second, and more problematic, is the fact that Rule 230(B)(2) restricts the disclosure of grand jury transcripts of witnesses to be called at trial until after the witness testifies on direct examination unless it is the testimony of the defendant or the transcript contains exculpatory information subject to mandatory, pretrial disclosure under Brady v. Maryland (U.S. 1963).
In Commonwealth v. Hemingway (Pa.Super. 2011), the Pennsylvania Superior Court eased this burden a bit, holding that the pretrial disclosure of transcripts otherwise prohibited by Rule 230(B)(2) could be made if the prosecutor agreed. In so doing, the Superior Court relied on the language of Rule 230(A), holding that the making of such agreements falls within the prosecutor’s “performance of official duties.” Absent such an agreement, however, the language of Rule 230(B)(2) is supposed to control, subject to the creativity of defense counsel to convince the supervising judge that pretrial disclosure is permitted in some other way.
Proposed Rule 230(B)(2) opens an official door for defense counsel to obtain grand jury transcripts pretrial (instead of waiting for the witness to testify on direct examination) in the absence of an agreement with the prosecutor by applying to the supervising judge and demonstrating that disclosure is in “the interests of justice.” To accommodate concerns over maintaining grand jury secrecy, the proposed rule provides that the transcripts may be redacted to remove testimony that does not concern the subject matter of the criminal charges.
Investigating Grand Jury Reports
Using investigating grand jury reports has come under critical scrutiny in recent years. However, investigating grand juries’ ability to issue reports is not new, dating back to the creation of the Investigating Grand Jury Act in 1980. The purpose of an investigative grand jury report is to report on organized crime or public corruption in the commonwealth and to propose recommendations for legislative, executive or administrative action. Traditionally, such reports would be issued after a significant criminal investigation to address systemic societal problems and identify holes in the law that warrant correction.
However, the willingness of some prosecutors to push the limits of this valuable tool has resulted in several decisions limiting its use. For example, in In re Fortieth Statewide Investigating Grand Jury, (Pa. 2018), the court held that using a statewide investigating grand jury report to implicate individuals in criminal conduct without charging them with a crime infringes upon their constitutional right to reputation without due process of law. The court then required that their names be redacted from the report prior to publication. Material to the court’s holding, the individuals implicated in the report were never subpoenaed to testify before the grand jury, and the grand jury that issued the report had expired. Two years later, in In re Grand Jury Investigation No. 18, (Pa. 2020), the court held that the public release of a county investigating grand jury report that neither pertained to organized crime/public corruption nor made recommendations for legislative, executive or administrative action, was statutorily unauthorized. The common thread in both of these cases was using a grand jury report as a substitute for criminal prosecution without the due process protections typically afforded to criminal defendants.
The committee proposed a new rule of criminal procedure (Rule 234) that appears to be aimed at increasing the accuracy of grand jury reports. This new rule requires a prosecutor to provide the supervising judge with citations to the evidentiary record developed before the grand jury so that the judge can better fulfill their statutory duty to ensure that the report is supported by a preponderance of the evidence and based on evidence actually presented to the grand jury. While this does not seem like much, this is a major change for prosecutors, who are not accustomed to having their reports fact-checked by the supervising judge. Notably absent from the new rule, however, is the task force’s alternative recommendation (if the grand jury reporting function is not abolished by the General Assembly) that reports should not “critically comment on a named or otherwise identified individual” who is not to be charged. Instead, both the task force and the committee appear content to leave this recommendation to lawmakers. With the prospects of grand jury reform in the General Assembly slim, and the proposed rule even slimmer, the question of whether there is any reasonably conceivable measure of due process that can be afforded to allow the identification of uncharged individuals in a published grand jury report remains an open one.
Reprinted with permission from the January 24, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.