State v. Gray, 515 P.3d 348

Background

Defendant (Gray) was charged by district attorney’s information with felony offenses and sought to exercise ORS 132.320(12) to appear and testify before the grand jury considering indictment.
Gray’s counsel gave timely written notice under ORS 132.320(12); Gray asked that counsel be permitted inside the grand jury room during Gray’s testimony.
Trial court denied counsel’s admission (permitting counsel only outside for consultation); Gray sought mandamus relief from the Oregon Supreme Court.
ORS 132.320(12) (2015) grants a right for a represented, arraigned defendant to appear and testify but does not expressly allow counsel in the grand jury room; ORS 132.090 generally closes grand jury proceedings to all but enumerated persons.
Grand-jury testimony is sworn, recorded, and potentially usable at trial; legislative history shows the legislature declined to authorize direct/cross examination or counsel in the room when it enacted the statutory right to testify.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a charged defendant who elects under ORS 132.320(12) to testify before the grand jury has a right to have counsel present in the grand jury room	Statute and ORS 132.090 close grand jury sessions to non-enumerated persons; Legislature did not intend counsel inside; Miller describes grand jury as closed/nonadversary	Once prosecution has begun and the right to counsel has attached under Article I, §11, a defendant has a right to counsel at pretrial "critical stages"; testifying under oath before the grand jury is such a stage	Held: Under Article I, §11, Gray is entitled to have counsel present in the grand jury room during his testimony (limited to consultation and direction)
Scope of counsel’s role during testimony	Counsel should not be permitted to examine witnesses, object formally, or transform the grand jury into an adversary proceeding	Counsel should be able to examine, object, and actively participate to protect the defendant	Held: Counsel may consult, advise, and direct the defendant during testimony, and may advise termination of testimony if necessary; counsel may not conduct direct/cross-examination or make formal evidentiary rulings in the grand jury room
Whether the statutory framework and legislative history preclude a constitutional right to counsel in the room	ORS 132.320(12) and legislative history show no intent to admit defense counsel into grand jury rooms; statutory silence/express exclusions control	Statutory authorization to testify does not eliminate a separately articulated state constitutional right once counsel has attached	Held: Statute does not authorize counsel in the room but does not oust the Article I, §11 right; state constitutional protection governs and permits counsel’s presence for consultation during testimony

Key Cases Cited

State v. Miller, 254 Or. 244 (Or. 1969) (describing grand jury as closed and nonadversary)
State v. Davis, 350 Or. 440 (Or. 2011) (framework for analyzing Article I, §11 right to counsel and scope at pretrial stages)
State v. Prieto-Rubio, 359 Or. 16 (Or. 2016) (scope of right to counsel to prevent prejudice at pretrial stages)
State v. Newton, 291 Or. 788 (Or. 1981) (standard for when pretrial proceedings are "critical stages")
State ex rel. Russell v. Jones, 293 Or. 312 (Or. 1982) (counsel cannot be excluded where defendant is to be "heard")
United States v. Ash, 413 U.S. 300 (U.S. 1973) (counsel is an advisor; presence not required at prosecution interrogation of witnesses)
United States v. Mandujano, 425 U.S. 564 (U.S. 1976) (historic function and protections of the grand jury)
State v. Gortmaker, 295 Or. 505 (Or. 1983) (grand jury’s high function in protecting liberties)