248 P.3d 199
Ariz. Ct. App.2011Background
- Bashir sought remand to the grand jury for a new probable cause determination, arguing the State failed to disclose Bashir's proposed testimony under A.R.S. § 21-412 and Rule 12.6.
- The State presented only that Bashir wished to testify; the grand jury indicted Bashir for negligent homicide and negligent child abuse.
- Bashir had provided a ten-page letter with supporting documents and requested the State present exculpatory evidence to the grand jury.
- The trial court denied remand; Bashir pursued a special action, which this court accepted as involving statewide importance.
- Trebus v. Davis established the duty to inform the grand jury about a defendant’s request to appear and the subject/evidence outline, guiding the court’s decision to remand.
- The court remands for a new grand jury determination of probable cause due to the State’s failure to inform the grand jury of Bashir's proposed testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to inform grand jury when defendant requests to testify | Bashir argues Trebus requires disclosure of subject and outline. | State contends Trebus does not set a mechanical standard and grand jury role is limited. | Prosecutor must convey subject and outline when a proper request is made. |
| Duty to inform of exculpatory matters under Trebus/Herrell | State should inform of exculpatory matters; Bashir’s exculpatory content was relevant. | State already informs of clearly exculpatory evidence, and testimony details are not required. | Prosecutor has duty to inform grand jury of exculpatory matters on proper request. |
| Whether failure to inform requires remand, not harmless error | Failure to inform deprived grand jury of Bashir's proposed evidence, affecting decision. | Court should defer to grand jury process and findings. | Failure to inform was not harmless; remand warranted. |
Key Cases Cited
- Trebus v. Davis, 189 Ariz. 621 (Ariz. 1997) (duty to inform grand jury of defendant's request and proposed evidence)
- Herrell v. Sargeant, 189 Ariz. 627 (Ariz. 1997) (prosecutor must inform grand jury of exculpatory matters on proper request)
- Francis v. Sanders, 222 Ariz. 423 (Ariz. App. 2009) (instructions to grand jury may be essential to avoid needless prosecution)
- Maretick v. Jarrett, 204 Ariz. 194 (Ariz. 2003) (grand jury must be given fair and impartial presentation; witness credibility and factual inconsistencies for trial)
- Mauro (State v. Superior Court), 139 Ariz. 422 (Ariz. 1984) (standard for fair presentation to grand jury varies by case)
- State v. Just, 138 Ariz. 534 (Ariz. App. 1983) (purpose of § 21-412 is to give grand jury opportunity to hear evidence)