“Cheat Sheet” Of The Grand Jury Task Force Report
By: Christopher A. Iacono
Two and a half years ago, the Pennsylvania Supreme Court created a task force to perform a comprehensive review of investigating grand juries and last Friday, that report was finally released. Here’s what you need to know.
The Task Force examined six major topics: 1) the Role of the Supreme Court; 2) the Role of the Supervising Judge; 3) the Role of the Commonwealth Attorney; 4) Grand Jury Secrecy; 5) Grand Jury Reports; and 6) Regional Investigating Grand Juries. Following is a summary of recommendations related to each topic:
I. Role of the Supreme Court. The Supreme Court has a significant role in investigating grand jury matters. Among other things, it is the sole appellate tribunal for challenges to investigating grand jury orders. As a result, its decisional law in this area is crucial for providing guidance to supervising judges and the practicing bar. In addition, the Supreme Court, through the Chief Justice, adjudicates applications to impanel statewide investigating grand juries. The Task Force makes the following three recommendations regarding the Supreme Court’s role:
Recommendation One: A rule of procedure should be adopted regarding the process for submitting applications to convene a statewide investigating grand jury.
Recommendation Two: The Supreme Court is encouraged to continue to address outstanding grand-jury-law issues in published opinions.
Recommendation Three: The Supreme Court’s Internal Operating Procedures should be amended to provide specific timetables for circulation of and voting on recommendations relating to challenges to investigating grand jury orders.
II. Role of the Supervising Judge. In examining the central role of the supervising judge of an investigating grand jury, the Task Force identified a range of obstacles to the appropriate fulfillment of that role, including inadequate training, limited written resources, and insufficient staff support. The Task Force offers the following ten recommendations related to supervising judges:
Recommendation One: A judicial training program should be established for new supervising judges.
Recommendation Two: A handbook should be developed as an ongoing resource for supervising judges.
Recommendation Three: A handbook for grand jurors should be adopted.
Recommendation Four: The Supreme Court should consider funding for law clerk support for supervising judges of statewide investigating grand juries.
Recommendation Five: The clerk of courts of the county in which a statewide investigating grand jury is based should be identified as the filing office for that tribunal.
Recommendation Six: Whenever a statewide investigating grand jury is in session, the supervising judge should be on the premises or readily available to return to the premises.
Recommendation Seven: Rule of Criminal Procedure 229 and the related Comment should be amended to authorize the supervising judge to establish procedures by which grand jury transcripts may be maintained by the attorney for the Commonwealth.
Recommendation Eight: The Supreme Court of Pennsylvania, through the Administrative Office of Pennsylvania Courts, should explore developing a system by which grand jury transcripts could be stored electronically.
Recommendation Nine: The supervising judge of a statewide investigating grand jury should submit certain relevant statistics concerning the work of the grand jury to the Supreme Court.
Recommendation Ten: Supervising judges should be encouraged to submit their significant decisions for publication, redacted as necessary to protect grand jury secrecy.
III. Role of the Attorney for the Commonwealth. The Commonwealth’s attorney has a pivotal role in establishing and running an investigating grand jury. The investigating grand jury process commences with the Commonwealth’s attorney filing with the court an application to convene a grand jury. Following impanelment, the Commonwealth’s attorney sets the course for the tribunal via notices of submission, which define the investigations that will be pursued through the grand jury. To provide some incremental clarification of the prosecutor’s role, as well as facilitate certain judicial functions, the Task Force makes the following four recommendations:
Recommendation One: With respect to a multicounty investigating grand jury, the Commonwealth’s attorney should provide certain relevant statistical information to the supervising judge.
Recommendation Two: The Rules of Criminal Procedure should be amended to recognize that the Commonwealth’s attorney has the authority to provide certain guidance to the investigating grand jury when it considers whether to direct the preparation of a presentment or a grand jury report.
Recommendation Three: The Rules of Criminal Procedure should be amended to clarify that the Commonwealth has the duty to ensure that all proceedings before the grand jury, but for the grand jury’s deliberations and votes, are recorded or transcribed.
Recommendation Four: Rule of Criminal Procedure 229 should be amended to reflect the role of the Commonwealth’s attorney in ensuring that the records of the grand jury are maintained, including facilitating the process for transferring materials from a supervising judge whose term is ending to any successor supervising judge.
IV. Grand Jury Secrecy. The Task Force expended considerable effort on the topic of grand jury secrecy. While secrecy is foundational to grand jury operations, there is substantial uncertainty about that term. The Task Force sought to identify areas in which uncertainties over the scope and application of grand jury secrecy have caused unnecessary difficulties. In order to provide needed guidance, and to address a variety of other issues relating to secrecy, the Task Force makes the following ten recommendations:
Recommendation One: Grand jury facilities should be configured to permit witnesses to enter and leave outside public view.
Recommendation Two: Rule of Criminal Procedure 231(C) should be rewritten to conform to the underlying statute, 42 Pa.C.S. §4549 (b), and restrict secrecy to “matters occurring before the grand jury.”
Recommendation Three: To ensure consistency with Recommendation Two, the Comment to Rule of Criminal Procedure 231 should be amended to delete the last paragraph and include a discussion of case law interpreting the term “matters occurring before the grand jury.”
Recommendation Four: To conform to the Investigating Grand Jury Act, Rule of Criminal Procedure 230 should be amended to specify that the release to an investigating agency of matters occurring before the grand jury is permitted only when such release is in furtherance of a criminal investigative purpose.
Recommendation Five: When disclosure orders support the Commonwealth attorney in the performance of his or her duties, they should be reasonably granted.
Recommendation Six: The Court should adopt a new Rule of Criminal Procedure 233 regarding disclosure of grand jury testimony by witnesses and their attorneys.
Recommendation Seven: Witnesses should be sworn individually and clearly advised of their rights and obligations concerning secrecy.
Recommendation Eight: The attorney appearance form should be confined to its purpose: a notice that the attorney represents a particular witness. Attorneys representing witnesses should not be sworn to secrecy until such time as they are to be exposed to “matters occurring before the grand jury.” The secrecy oath should be administered by the supervising judge.
Recommendation Nine: Trial judges, not grand jury supervising judges, should control the release of grand jury material in a charged case.
Recommendation Ten: The rule governing the release of grand jury material in a charged case should be amended to more closely comply with existing law and to promote the orderly operation of criminal trials.
V. Grand Jury Reports. The subject of grand jury reports divided the members of the Task Force more sharply than any other issue. Ultimately, a four-member majority of the Task Force opted to suggest that the Legislature abolish grand jury reports. Those members concluded that the reporting process is in tension with the grand jury’s role as the protector of individual rights, as there are considerable due process concerns with the creation and release of a report.
Three members of the Task Force, however, disagree with the recommendation to abolish reports. One of those members finds that the availability of a reporting power is a policy question for the General Assembly and is outside the mandate of the Task Force. Two other members oppose eliminating reports, which have been instrumental in exposing malfeasance and corruption over several decades, particularly since the majority’s recommendation is directed to a process that has been supplanted by recent Supreme Court decisions.
Although a majority of the group proposes abolishment of reports, the Task Force recognizes that the reporting function is presently authorized and may continue indefinitely into the future. The Task Force thus makes several alternative recommendations, see Recommendations Two through Eight, that, if adopted, would make changes to the existing reporting system.
Recommendation One: The Investigating Grand Jury Act should be amended to eliminate grand jury reports. In the alternative:
Recommendation Two: Section 4552 of the Investigating Grand Jury Act should be amended to preclude a grand jury report from critically commenting on a named or otherwise identified individual unless the comment relates to charges filed against the individual or charges recommended against the individual in an accepted presentment.
Recommendation Three: The Investigating Grand Jury Act should be amended to clarify that the preponderance of the evidence standard is to be employed by the investigating grand jury in making its statements of fact in the grand jury report, while the supervising judge’s review of the report is subject to the sufficiency of the evidence standard.
Recommendation Four: New Rule of Criminal Procedure 234(A) and (B) should be adopted to require the attorney for the Commonwealth to provide citations to the record to aid the supervising judge’s review of the grand jury report.
Recommendation Five: New Rule of Criminal Procedure 234(C)(1) should be adopted to explain the nature of the supervising judge’s review of a grand jury report.
Recommendation Six: New Rule of Criminal Procedure 234(C)(2) and (D) should be adopted to set out appropriate procedures to follow when the supervising judge finds certain passages of a report unsupported by sufficient evidence.
Recommendation Seven: New Rule of Criminal Procedure 234(C)(3) should be adopted to make clear that grand jury secrecy applies to the contents of a grand jury report until the supervising judge files the report as a public record.
Recommendation Eight: Section 4546 of the Investigating Grand Jury Act should be amended to permit a limited extension of an investigating grand jury’s term to address issues relative to a grand jury report.
VI. Regional Investigating Grand Juries. Finally, the Task Force found that district attorneys in less populous counties could benefit from using investigating grand juries, but are unable to convene them due to financial and logistical concerns. Accordingly, the Task Force proposes a statutory change, whereby less-populous counties could pool resources to impanel grand juries that they would use collectively.
Recommendation One: The General Assembly should consider amending the Investigating Grand Jury Act to permit the convening of regional investigating grand juries by counties of the fourth through the eighth classes.
Recommendation Two: In the event the General Assembly amends the Investigating Grand Jury Act to permit formation of regional investigating grand juries, the Supreme Court should promulgate necessary procedural rules.
In the coming months, grand jury practitioners will be watching closely to see whether the Supreme Court and/or the General Assembly will implement any of the recommendations of the Task Force. And if so, whether the recommendations will change the role or function of investigating grand juries in the Commonwealth. Some of the recommendations have sparked considerable debate. Stay tuned to the blog where we will discuss, more in depth, some of the recommendations which have strong argument on both sides of the issue.