Hennigan v. State

Following instruction, plaintiffs this separated trials, request at the of ap- one of the other began present cases to counsel, pellants’ prevent any to possible their case. prejudice. The jury thoroughly in- structed to consider the evidence morning appellants next moved presented appellee’s rendering trial in its cases, court to “deconsolidate” the contend- special verdict. The verdict very contained ing that the would confuse the evi- specific findings relating to the defects prejudice dence and unfair would arise. the Slater residence and their causes. We granted appellants’ The court motion and conclude that the court did not abuse its instructed as follows: discretion consolidating sepa- and then gentlemen “Ladies and Jury, be- rating the cases for trial. you calling morning, fore in this we met with counsel—counsel and the Court met part, Affirmed in part, reversed in and we made some decision relative remanded for purpose trial the limited going proceed how we are with this determining piercing the issue of case. In order you to save time and corporate veil. perhaps long you trial where would weeks, have to sit here for two or three up

we decided to divide this a little differ-

ently. respect,

“In Buck, Mr. repre- who here,

sents the put Defendants will case,

his Defense now in the first

is the matter of the Slater house. We doing felt that way it this would enable Joseph HENNIGAN, Jr., M. Jury separate these cases better in Appellant (Defendant), their having minds rather than all the put Plaintiffs on their case and then the Defense. So begin Mr. Buck will Wyoming, The STATE of Defense of the Slater case in the morn- (Plaintiff). Appellee ing. No. 86-82. “Then we should wrap up be able to case week. We will then make a of Wyoming. Court decision proceed how to with the However, other cases. it Nov.

immediately give Jury— that will

and we will relieve the Jury having to

sit here for two or three weeks.

[*] ^{[*] [*]} # ^{[*] [*]}

“Counsel me thing reminded more one

that wanted to tell the Jury this morn-

ing, and that is Friday because of last

week Plaintiff —Mr. Klus started his

case Hayzlett, matter of I am

going Jury disregard ask the

testimony entirely just for now and con-

centrate on the Slater case until you your

submitted to decision.”

Appellants now contend that the consolida-

tion the trials was reversible error.

They failed, however, to articulate prejudice demonstrative regard, in this

and we have found none. trial

rie, Atty. Gen., Sr. Asst. John W. Ren- neisen, Gen., Atty. appellee. Sr. Asst. BROWN, C.J., THOMAS, Before CARDINE, MACY, URBRIGKIT and JJ.

THOMAS, Justice. Joseph of primary Hennigan’s focus appeal contentions in this is his indictment of the institution of the jury. His complaints generally are directed to the of function Wyoming specifically to claimed defects that are present encompass his case. His claims process assertions that he was denied due equal protection of law and the of the laws. argues He also his conviction should grand jury be set aside because was properly impaneled since there was no specific finding necessity calling for grand jury; fatally are indictments de- fective because the foreman did not personally endorse the words “A True indictment; Bill” proceed- and the ings manifest lack indicia of reliability determining probable cause. conclude that We the institution Wyo- has been maintained in ming proper prosecutorial procedure; as a attaching there is no constitutional defect structured; to its use it has been and no error occurred in connection with the charges brought against Hennigan by in- judgment dictment. The and sentence with respect to each of the several counts against brought him is affirmed. brief, Hennigan In his articulates the presented way: issues in this Appellant “I. Whether the has been de- equal protection nied due prosecution the law the actions in deliberately avoiding preliminary hearing obtaining indictments with- Munker, D. Leonard State Public Defend- observing out minimal of fun- standards er; Counsel; D. Naylor, Appellate Julie damental fairness. Director, Gallivan, Wyoming Gerald M. De- Whether Jury “II. the current Grand Program; Olson, Megan fender Aid improperly impaneled under Section Intern, Student Wyoming Defender Aid 7-5-102 in necessity that there was no Program, appellant. for body, requiring said the dissolution McClintock, Gen.; A.G. Atty. panel A. Gerald and the dismissal Stack, Gen.; Deputy Atty. Mary B. Guth- indictments. nor more than 36 months on each in these months indictments

“HI. Whether with those sentences to run concur- count for failure to fatally defective are cases given against rently. He was credit both statutory requirement conform minimum and maximum terms for 216 ‘A the words foreman endorse that the spent Campbell days County that he upon each indictment. Bill’ True Hennigan jail pre-trial confinement. indictments should be “IV. Whether fined each of the four $750 also was the conduct because dismissed ' counts; surcharge for victims of $25.00 reliability any indicia of Jury lacks count; imposed as to each crimes was cause.” probable in the assessment to reimburse the he was ordered State Wyo- Appellee, the State Brief of Campbell County the ser- the issues ming restates and reorders court-appointed attorney in vices of his way: $1,000. amount of by the indictment appellant’s Did “I. Hennigan proceed- does not attack the process and deny him due grand jury ings sufficiency trial nor the at equal protection? upon jury which the found him evidence probable cause for the “II. Was there guilty beyond reasonable doubt. His a indictments return the grand jury to only claims of error in this case address the appellant? against the grand jury proceedings. The identical is- appellant the indictment “III. Was being presented by other individu- sues are grand jury fatally defective because charged by the same als who were ‘A Bill’ on not endorse True foreman did guilty by petit jury, a and now jury, found handwriting? in his own the indictment Because the appealed to this court. properly im- “IV. Was relating grand jury pro- contentions paneled?” in these several ceedings are identical Hennigan charged by cases, definitively indictment them was we will treat with delivery four counts of of marihuana in this decision. with 35-7-1031(a)(ii)and 35-7- violation §§ arguments Hennigan’s contentions and 1014(d)(xiii), An warrant W.S.1977.1 arrest call for re heavily weighted toward a are indictment, premised upon the was issued tone, they Essentially philosophic form. arrest, Hennigan, following his in our optimum assistance do not afford He arraigned on each of these counts. that can char identify incidents effort each plea guilty entered a of not as to v. Kar Walker of law. acterized as errors trial, Hennigan a num- count. Prior to (1986). Hennigan’s pan, Wyo., 726 P.2d 82 in- who had been ber of other individuals instead, an effort to arguments, manifest presented a by dicted same present if could be explain the errors that indictments common motion to dismiss the Hennigan wishes the extent rules were grand jury. against and dissolve the them presentation This broaches them to be. contentions by That motion asserted the same support the issues upon a failure to court, Hennigan’s authority forth in brief this cogent argument pertinent set following hearing by might a refusal to consider justify and it was denied a which State, P.2d trial which them. Newton v. Wyo., 698 the district court. At the State, v. followed, (1985); Wyo., 665 Ostrowski Hennigan guilty on was found Stolldorf, v. (1983); counts, and he then was P.2d each of the four Stolldorf (1963). Wyo., 384 P.2d 969 than 18 to a term of not less sentenced 1. Section 35-7-103 "(a) person 7-1001 to trolled substance. this subsection with Except intent to manufacture or ^[******] 35-7-1055], manufacture, deliver, as authorized l(a)(ii), Any person who violates respect to: it W.S.1977, by unlawful deliver, act provides: for [§§ possess con- any 35- Section Schedule I. huana in the "(ii) in Schedule both.” than ten thousand dollars not more than ten upon Any 35-7-1014(d), other controlled substance conviction controlled substances I, II or (10) years, W.S.1977, III, may guilty ($10,000.00), or fined imprisoned includes classified in not more classified a crime mari- for Hennigan upon general equal relies statements cess or protection the denial of law, arguments favor of reform connection with the event which had the by various individuals and the American of depriving Hennigan liberty effect his Association, dissenting position Bar and a or property. That judgment event was the justice Court of the finding and sentence entered He States. has failed to cite guilty which tried his case. authority pertinent not distin- Hennigan does not discern distinction guishable, and we assume that such between conviction the trial court State, Taylor authority does not exist. and the charges upon institution of the Wyo., (1983); Deeter v. which that conviction was premised. 658 P.2d 1297 In State, Wyo., 500 P.2d 68 Given the judgment our that distinction makes a sub- essentially philosophic, legal, rather than stantial difference. we shall debate still address detail Hen- just The distinction requires alluded to nigan’s claims error. that we analyze pro demand due so, doing we turn first to the claimed temporary cess which attaches to the inva Hennigan’s argu- constitutional defects. sion of an liberty arising individual’s out deprivation ments due about a determination that he should be held to equal together protection weave and cer- charge answer criminal in a trial court. tainly closely are related. We ini- address An examination perspective from this tially the claim that the utilization of the requirement teaches that the constitutional grand jury in this instance resulted in a indictment found in deprivation process of of due law. Because 1,Art. 13 of the Constitution of the State § free-wheeling of the rather of nature Hen- Wyoming2 of and the Fifth Amendment to nigan’s claims, perhaps it worthwhile to of Constitution the United States3 was place process equal the due protection by assumed the drafters to be essential concepts in pertinent the context of the protection of citizens from over constitutional measures. In Amendment reaching by government. purpose of The of Fourteen the Constitution of the United grand jury presentment or indictment States, following language is found: probable was to assure there that was “ * * * No State shall make or enforce present cause to an individual any abridge privi- which shall law petit jury grand jury pro for trial. The leges or immunities of citizens of the ceeding perceived as the standard of States; United nor shall de- State process part due which was of law prive any person life, of or liberty, prop- the land at common exposi law. Historical erty, law; process without due of nor tion in Hopkin concept is set forth deny any person jurisdiction within its State, Wyo., son v. 43, 664 P.2d cert. de equal protection of the laws.” 908, 104 262, nied 464 U.S. S.Ct. 78 L.Ed.2d In the Constitution of of Wyo- the State Boulter, Wyo. (1983); re In State v. 246 5 ming, 1, we find Art. 6:§ 329, Bain, Ex (1895); P. Parte 883 121 person life, “No deprived shall be of lib- 1, 781, (1887); U.S. 7 S.Ct. 30 L.Ed. 849 erty or property process due without of People v. California, Hurtado State of law.” 111, U.S. S.Ct. 28 L.Ed. 232 protec- (1884);

Invocation of these constitutional Smyth, States v. depends upon tions pro- (N.D.Cal.1952); some lack of F.Supp. Clark, due L. 2. Art. 13 of § the Constitution of the State of V Amendment to the Constitution the Unit- provides provides Wyoming pertinent part ed as States as follows: follows: person shall "No be held to answer law, provided by person "Until otherwise shall, crime, capital, or otherwise infamous unless felony, proceeded against for a crimi- presentment on a or indictment of a Grand indictment, nally, by except otherwise than Jury, except arising in cases or in the land forces, arising cases land or naval or in forces, Militia, naval or in the when in actual the militia when in actual service in time of public danger; service in time of War or public danger." war or »* * # trial, ing imply that and Abuse of Politi- we do the ac- Jury: The Use Grand Eliminate the (1975); Campbell, judicial oversight cused is entitled to cal Power Criminology & Jury, Grand prosecute. 64 J.Crim.L. review the decision to In- History stead, (1973); Stephen, 1 Criminal we to the prior J. adhere Court’s (1893); C.J.S. Grand holding England judicial hearing Law that a is not a (1943); 38 Am.Jur.2d Juries prerequisite 2-47 prosecution by informa- §§ Jury 1-41 tion. Nor do we retreat from the §§ estab- rule illegal lished arrest or detention has been whether Historically, the debate subsequent does not void a conviction.” recog- apparently procedures, alternative Pugh, Gerstein v. supra, 420 U.S. at provisions similar to nized by constitutional 118-119, (Citations 95 S.Ct. at 865. omit- 1, 13 of the those in Art. Constitu- found § ted.) Wyoming, tion of afforded the State process of due to the ac- same measure The members of the constitutional con- In Hurtado grand jury. cused did the as vention in Wyoming not retained the California, supra, the People State legisla- provided but that the of California decision of the State to substi- adjust system. could ture addition information for a charging tute Art. 13 of the Constitution § challenged contrary indictment was Wyoming, quoted State of footnote process clause found due Art. 9 of the of the State Constitution § Amendment to Constitution Fourteenth Wyoming provides: “ * * * of the United States. United States grand jury may Hereafter a con- Court decided indictment men, sist of twelve nine whom method is not exclusive indictment, concurring may find an but process in a affording due criminal case legislature change, regulate upheld the determination of the Cali- system.” abolish the permit probable legislature fornia cause Since the statutes magistrate affording to be found provided: Subsequently, due to an accused. crimes, “All and offenses misdemeanors recognized determination may prosecuted having court probable necessary bring cause to a thereof, by jurisdiction either indictment by made person prosecut- trial could be a to by informa- provided, as hereinafter ing attorney under some circumstances and 7-6-101, tion.” W.S.1977. Section pro- that this also is consistent with due supersed- provision The has been statutory Washington, 369 541, cess. Beck v. U.S. language by found substantially ed similar 98, 955, 82 8 L.Ed.2d reh. denied 370 S.Ct. 9, in Rule W.R.Cr.P. 1575, 965, 8 834 U.S. 82 S.Ct. L.Ed.2d States, (1962); Ocampo v. United by 234 U.S. procedure prosecution infor- The for Lem 91, 712, (1914); 34 58 L.Ed. 1231 1891, S.Ct. challenged first mation was Oregon, 229 586, Woon v. State 33 U.S. legislature did court held have that (1913). 783, S.Ct. 57 L.Ed. 1340 an alternative authority provide to determining probable for cause. method 103, Pugh, v. Gerstein In 420 95 U.S. 478, (1891). Wright, Wyo. P. 565 In re 27 3 854, (1975), 43 L.Ed.2d 54 the Su- S.Ct. that the Subsequently, court concluded process preme addressed due Court a determina- legislature provide for could procedure determining for context of a prosecutor, at probable by the tion of cause cause, would probable justify which incar- periods time. limited trial, least within certain required prior ceration to such a 82, Spears, Wyo. 551 v. 300 P.2d State 76 judicial pro- made in a determination to be Vines, 212, (1956); Wyo. 49 54 State v. grand ceeding, jury. would include a which Tobin, however, 31 v. (1936); Wyo. State pertinent, emphasize It how P.2d 826 State, v. Ackerman 355, (1924); that was articulated. 226 P. limitation State v. 504, (1898); Wyo. 54 P. holding prosecutor’s “In that the assess- Krohne, 34 P. 3 Wyo. Sureties is not probable ment of cause sufficient skep- some indicated (1893). This has pend- justify liberty alone to restraint of involv- State, supra. procedure v. respect legislature The ticism has re- Nevertheless, the ing only prosecutor. tained the as one for method as to when a determination initiating prosecutions rule clear criminal and has necessary is hearing is within provided preliminary filing complaint for the a fol- legislature, and be- prerogative by preliminary lowed examination as an- at com- unknown way. other proceeding proce- Our rules of cause criminal statute, of a law, the absence recognize dure proba- mon determination of “[i]n necessary examination ble preliminary magis- cause either a or a ** Tobin, Wyo. v. supra, at preliminary State trate after a examination. State, v. see also Montez 685; P. at Rule W.R.Cr.P. Wyo., 670 P.2d Hennigan’s approach, and that of the making claims, others the same seeks considering the constitutionality of a procedure elevate prose- the alternative probable determination of cause a non- cuting cases, criminal which first had to be lawyer justice peace, in Thomas v. process against tested a due context County, Justice Court Washakie Wyo., grand jury proceeding, to the standard for that, 538 P.2d 42 we said in accord- process. argument due pro- The that those Pugh, supra, Gerstein v. ance with ceedings, which been tested for their protection of an Fifth individual’s Amend- against sufficiency constitutional rights ment against unfounded invasions of jury proceedings, now set the standard for liberty property requires a determina- due is indeed circuitous. We are probable tion of cause someone other persuaded adopt it in absence of prosecutor. noted, than carefully We any mandatory authority. however, judicial hearing is not a prosecution prerequisite by information, that, Hennigan though claims even “ stating ‘although suspect who is institution of the survive a presently may challenge detained prob- process challenge, due the utilization of the confinement, able cause for that a convic- grand jury in his instance resulted in a ground tion will not be vacated on the process. only authority denial of due the defendant was pending detained trial Hennigan presented support po- has his without probable a determination of proposals relating sition is a number of ” cause.’ Thomas Justice Court Was- grand jury promulgated by the Ameri- hakie County, supra, at quoting from (ABA). can Bar Association cases Pugh, Gerstein v. supra, 420 U.S. at Hennigan jurisdic- cites from other 95 S.Ct. at premised upon statutory proce- tions are adopted dures Wy- different from those We do not this history understand oming, result in those cases is justifying that, Wyoming a claim in controlled difference statutes. charging stages case, of a criminal due States, Court of the United process by prelimi can be afforded “ context, a trial has said ‘the failure to nary Conceding examination. there observe that fundamental fairness essen- perceived advantages preliminary are to a ” very concept justice’ tial to the a Wright, supra; hearing, re State {In v. process. denial of due Clark, People Lisenba v. 231, 810, 291 630 Or. P.2d cert. California, 236, State 219, 1084, 314 U.S. 640, denied 454 U.S. 102 S.Ct. 70 290, 280, 62 S.Ct. 86 (1981)), quot- L.Ed. 166 L.Ed.2d 619 largely which arise out Maschner, Munoz v. ed in (See Wyo., 590 Coleman v. of its adversarial P.2d nature 1352,1355 (1979). Alabama, court, however, 1, This 1999, U.S. 90 has S.Ct. (1970)), adopted principle L.Ed.2d 387 that it is persuaded we are incumbent appellant authority demonstrate how the constitutional procedures probable declare how were cause be deter which utilized denied him mined v. preliminary hearing process and whether a In State which is his due. required legisla Spears, supra, granted 557, said, has been 300 P.2d at we State, supra; v. E.g., ture. Montez Tobin Adams v. United States ex rel. quoting necessary proceed- in a 269, 281, perceived that are McCann, S.Ct. 317 U.S. grand jury proceed- (1942): ing for the substituted 143 A.L.R. 435 L.Ed. * “ ‘ * * hearing, in ing, preliminary order to asking too much that is not [I]t process. As we have noted afford due showing essential unfair- the burden above, necessity attaches because of claims by him who be sustained ness preliminary nature of the the adversarial re- to have the injustice and seeks such examination, and we have been unable to aside, and that it be sustained set sult precedent requires discover a but as speculation a not as matter * * * op- accused be afforded notice and an reality. demonstrable grand jury portunity to be heard before promul principles espousing right protect his constitutional order to ABA, argues Hennigan first gated by the process. to due that: principles espoused relying on the Still notice or given no “The defendants were ABA, Hennigan contends: though even heard opportunity fully “The was not instructed notifi- that such no indication there was powers, particularly to its duties endanger flight, result in cation would cause, probable its as to the definition justice.” or obstruct persons other to call its own witnesses and the ability that one be to due It is essential legal right seek additional counsel meaningful opportu- afforded notice and the court. compe- a court of heard nity to be properly in- “The Hall, Wyo., 708 Hall v. jurisdiction. tent elements of the crime structed as to the State, (1985); Hopkinson v. su- P.2d by it.” considered incorporate a process does not pra. Due stage Hennigan was not success- every appeal, at of the Prior to right to be heard however, including a non-ad- disclosure of the proceeding, ful in his effort to obtain grand court. proceeding jury proceedings such as the in the trial grand versarial per- requires that a to demon- jury, Consequently, more than it he was unable trial, opportunities given offered two son be what instructions were strate an- preliminary require examination and urged one at the this court to grand jury. He v. Wilson petit jury. record, other before the but we did not disclosure of that also, State, (1982); see Wyo., 655 P.2d necessary. Subse- find disclosure to be Hall, supra. Hall v. pending case was on quently, while the entered an order appeal, the trial court proceeding does not A disclosure, addi- authorizing and two guilt inno result in a determination record of the volumes of a tional Was cence. Thomas v. Justice Court of transcript of the hear- proceedings, a States County, hakie supra; indictments, quash ing on a motion to Calandra, 338, 94 S.Ct. 414 U.S. transcript the testimo- 38 volumes of v. United Silverthome (1974); L.Ed.2d 561 were forwarded ny of various witnesses Cir.1968), States, (9th cert. 400 F.2d 627 testi- of the transcribed this court. None 400 U.S. appeal after remand denied case, Hennigan’s mony is material 27 L.Ed.2d 633 91 S.Ct. * * « * Jury, to Convene Grand only the Motion le- An returned indictment Convening Jury, Instruc- the Order gally constituted and unbiased County Jury, Campbell tions to the Grand by drawn the jury, like an information transcript of the Jury Report and Grand [only] is prosecutor, if valid on its face Quash Indict- Motion to hearing on the the charge on enough call for trial of the to Jury Dismiss the Grand ments and States, the merits.” Costello v. United in this case. any significance 406, 409, 359, 363, 350 U.S. S.Ct. 351 U.S. L.Ed. reh. denied material, we light the new S.Ct. 100 L.Ed.2d parallel contentions Hennigan’s address of the in the context instructions require full about limited effect does not This grand jury. for a statutory procedures protections Amendment panoply of Sixth 7-5-205, with, through plied presumption regularity Sections 7-5-203 W.S. con- charges required set forth the trols: with “ * * * respect in juries Wyoming, to and presumed It must be provide: they grand jury followed the court’s instruc- powers, tions to its duties and obli- 7-5-203. Oath of foreman. “§ gations grand juror and that each fully appointed, “When the shall foreman be up lived to and observed his solemn oath. an oath or shall be affirmation adminis- strong there presumption Indeed following in tered to him words: regularity accorded to deliberations ‘You, grand inquest, as foreman findings grand juries.” (or affirm) solemnly you do swear Kakaner, States v. F.Supp. diligently inquire present- will true (S.D.N.Y.1962). ment make all of such matters and material, supplementary part, dem- things given you charge, as shall be or compliance statutory onstrates with the re- knowledge your otherwise come to touch- quirements and, part, pre- validates the ing present service. The counsel of sumption of regularity. required state, your your you own and fellows encompass general oaths instructions secret, keep shall unless called in a respect with jury, to a and we must justice court of to make disclosures. assume these were oaths adminis- present through You shall person mal- validity tered. The presumption of this ice, will, you or ill nor hatred shall leave regularity is substantiated this case any person fear, unpresented through fa- to Jury Instructions the Grand which affection, or for any vor reward or part were forwarded informally thereof; hope your present- but in all which judge record the district ordered to truth, you ments shall present document, be disclosed. That which nothing truth, whole truth and but the quoted part dissenting opinion, according your to the best of skill and compliance 7-5-203, demonstrates with §§ understanding.’ 7-5-205, W.S.1977, 7-5-204 and including jurors. 7-5-204. Oath of “§ particularly as to admonishments fairness (or “Thereupon following oath affir- skepticism respect hearsay with to tes- mation) shall be administered to the oth- timony. pre- It also alludes to the oaths grand jurors: er ‘The same oath which sumably administered in accordance with A.B., foreman, your hath taken now be- Campbell County statute. The Grand you part, you fore on his you and each of Report Jury familiarity manifests truly keep shall well and observe elements of the offenses in issue in this your parts.’ respective case and the evidence needed to establish charged by judge; 7-5-205. To be “§ those elements. jurisdiction. Furthermore, the Instructions sworn, “The being after shall Jury encompass assistance charged as duty by judge, to their 7-5-206, W.S.1977, provides: § who shall their particularly call attention Right prosecuting 7-5-206. attor- “§ the obligation secrecy to which their ney appear jury; no one but impose, oaths and to such offenses as he votes, present to be when etc. required specially charge. law prosecuting attorney, “The or the assist- charge court, After the prosecuting ant attorney, shall be al- appoint- shall retire with the officer at all appear lowed times to before the them, ed to proceed attend and shall purpose for the giving inquire of, present all offenses what- cogni- information relative to matter ever committed within the limits of the them, giving zable them advice county they impan- and which were upon any legal they may matter when eled sworn or affirmed.” it; require permitted and he Contrary Hennigan's assertions interrogate witnesses before them when statutory provisions these they were not com- or he shall deem it necessary; but provide grand jurors may require that person nor other the attorney, no such during called. See present to be that the declarant be permitted shall be views, Arcuri, F.Supp. giv- or the v. aff’d 405 expression of their States (2nd Cir.1968), F.2d 691 cert. denied 395 ing of votes on matter before their U.S. S.Ct. L.Ed.2d 227 them.” (1969); cases cited in Annot. A.L.R.3d at in counts the indictment en- The several Therefore, (1971). 626-630 we conclude elements for the compass appropriate genera] is proper that it to follow the rule and, charged, whatever instruc- offenses Bauman, v. exception. not See State may given grand been tion have (1980). 125 Ariz. 610 P.2d 38 that its did jury, apparent it is members these elements of offenses. understand the Hennigan upon relies a also claimed presumption regu- that the of We conclude weigh practice Wyoming judges attaches; requirements for larity which reliability proffered hearsay and re administering oaths in the stat- quire produced they declarant utes; the correctness indictment If hearsay questionable. find the this does Hennigan the claims of occur, itself overcome necessary it is nor not constitutional aspects of ABA respect to these required. ly judgment, In our disclo principles. sure at trial of unreliable evidence is a upon prosecutor sufficient control in relying upon claim Hennigan’s next presentation grand of cases before a principles the ABA is: Questions jury. credibility weight permitted hear “The appropriately evidence are deter only hearsay by deputy offered sheriff trial, mined at there is no due reports of who recited from the under- requirement a determination these agent.” cover determining proba in issues the course of Hennigan he is concedes that not certain State, supra; ble cause. v. Costel Wilson occurred, that this we will assume that but States, supra. There lo v. United grand jury’s he is that correct and upon more a limitation constitutional probable cause determination of was based grand proceedings hearsay jury use of exclusively hearsay. statutory Wyo there is limitation than 7(b), W.R.Cr.P., in pertinent Rule states ming. States, See v. su Costello United part: pra. * * “(b) finding. The Probable cause —* argument is: Hennigan’s next finding probable may cause be based grand proceedings “The were not hearsay evidence in whole or * * *" recorded, thereby preventing review added.) part. (Emphasis propriety.” their sufficiency cited, Hennigan not has not and we have argument, fallacy Hennigan’s The in this discovered, has any case which held that regard, requirement is that it assumes a hearsay use is a violation exclusive grand jury pro- there be a review process. Conversely, general of due ceedings propriety. sufficiency rule, in inhibiting of some stat- the absence grand general testimo- rule is that rule, hearsay ute or is admissible in is that ny need recorded absence of limitation, without jury proceedings requires procedural rule or statute which probable and the cause determination recording, to do so does not and the failure exclusively on such rest evidence. process. violate due See cases cited Annot., Cases cited in A.L.R.3d Annot. 25 While the A.L.R.Fed. (1971); also, State, supra. see Wilson require rules federal have been amended We or statutes similar to have no rules recorded, testimony be those in other states and the federal found 6(e), (1979), and the same Rule F.R.Cr.P. courts use which eliminate restrict the states, we many jury proceedings or situation true hearsay holding the failure do prosecutor found no require case disclosure appro- being process. is a violation of due hearsay given so evidence 370 State, response Weddle v.

priate to this contention Henni- or rule. Wyo., statute (1980). v. 621 P.2d United States gan 231 summarized Martel, (N.D.N.Y.1954), 17 F.R.D. 329 There is an inconsistency also in Henni- nom United States v. sub appeal dismissed position. gan’s He claims that the failure Caiola, (2nd Cir.1955): F.2d grand proceed- make a record of the parties’ argument moving ings deprived right

“The is one has him of the to dis- covery in the may better be addressed to Con- almost same breath which claims that the gress, may has in he indictment based past which the was wholly hearsay. legislate Both could not be subject true. the future the Certainly, acceptance of assumption the the matter involved this motion. The need that this indictment was based hear- grand of stenographic reports say testimony proposition makes clear the proceedings subject has been dis- the of prejudice respect could attach with requirement cussion. The for same must the to report proceedings, failure based in the statute. This there would have been no statement avail- (Citations legislate.” omitted.) not of a witness able who testified at the trial. 18, W.R.Cr.P., permits inspec Rule Instead, appear it would pur- had he transcript of copying tion of discovery sued the information jury testimony tes of defendant or the file, prosecutor’s Hennigan would have ob- timony testified, of a witness after he has substantially tained the same information was testimony provi recorded. This jury. available to the process requirements sion due satisfies contention, Judge To a similar Learned and is accord with what other states commented: Hand required the federal courts have in deter * * * “ procedure Under our criminal mining inspection when testi every advantage. accused has While the mony permitted. Hennigan should be prosecution rigidly charge, held any particu made no effort to demonstrate he need not disclose the barest outline of inspection lar need to obtain ques- his defense. He is immune from Bary States, v. United minutes. silence; or he tion comment on his can- (10th Cir.1961); F.2d 53 An cases cited in not be at convicted when there is least not., (1968 Supp.1986). A.L.R.3d & fair doubt in the minds one rules, Even under the amended federal Why in twelve. addition he should in given defendant need access to against advance have whole evidence grand jury testimony purpose mere pick leisure, him to over at his and make fishing expedition effort to ob defense, fairly foully, his never discovery. Annot., tain See cases cited in grand juries been able see. No doubt (1968) 20 A.L.R.3d 7 and 3 A.L.R.Fed. 29 err and indictments are to hon- calamities men, est but we must work with human beings and we can correct such errors Hennigan urges also that the fail large price. dangers at too Our proceedings ure to record the fail not lie in too do little tenderness to the permit ure to inspect any proceed him procedure accused. Our has been haunt- ings were recorded denied him a ghost by the ed innocent man right through discovery prelim afforded convicted. It is an unreal dream. What inary hearing. later, As we discuss his need we to fear is the archaic formalism argument preliminary is without A merit. watery obstructs, sentiment that hearing is purposes not conducted for delays, prosecution and defeats the discovery designed but to determine Garsson, United States crime.” State, supra. probable cause. Wilson v. (D.C.N.Y.1923). F. We preliminary understand that the hear ing may provide some opportunity discovery for dis rules for criminal cases covery, but that is not Wyoming satisfy mandated pro- the demands for due requirement process, constitutional Hennigan pursue due cess. was entitled to rules, discovery under such available but Wisdom is found in not providing a meth- permitted he reviewing grand fact that was not to ex- od for jury proceedings pand upon being rights by sufficiency afforded a those of the prior evidence to tri- preliminary deprive does Early examination al. decisions this quoted process. him of due He is not entitled work, to W.S. Church in his Habeas provide. more Corpus. points than the rules His treatise out that a re- of the sufficiency view of pri- the evidence contention, This in addition to the usurps province or to trial deprivation discovery, assertion of as because the court would reviewing Hennigan sumes that would entitled to a same evidence that a jury presumably trial grand jury proceedings review of the hearing would be at a later time. sufficiency propriety. their We have “ * * * question The guilt or inno- found no case in a which court has held it cence, therefore, should not be tried proper, statutory to be authority, absent judge the court or after indictment and sufficiency review the of the evidence in a upon corpus; though prisoner habeas grand jury proceeding, prece and several prove innocence, be able to his he against practice. dents advise E.g., such must abide his by jury.” trial W. States, supra; Costello v. United State v. Church, Corpus (2d Habeas 244 at 344 § Jacobson, 128, Ariz.App. 524 P.2d 962 1893). ed. (1974); Reese, 76, State v. 91 N.M. 570 P.2d (1977). Court of the United States spoken problems also has created Wyoming, legislature In specifically grand jury prior review of evidence to trial. authority has restricted the court’s to re- “ * * * If indictments were to be held grand jury proceeding. view a 1- Section open challenge ground on the 27-125, W.S.1977, part a statutory of the inadequate incompetent there was or evi- fabric of the jury Wyoming in since grand jury, dence before the the result- 1876, provides pertinent part: ing delay great would be indeed. The Corpus permissible “Habeas is not result of such a rule would be that be- question the correctness of the action of fore trial on the merits the defendant finding a bill of indict- * * * always prelimi- could insist on a kind of ment, acting jur- when within their nary competency trial determine the isdiction a lawful manner.” adequacy of the evidence before the McDonald, 18, Wyo. In re 33 P. grand jury. required by This is not (1893), this court commented on this Fifth Amendment.” Costello v. United statute and said: States, supra, “ * * * 350 U.S. at at 76 S.Ct. ‘Manner’ has reference to the 408-409. acting, method or mode of more than to vein, In a similar Church concluded: degree perfection or correctness in “ * * * principle that in- [Establish conclusion results arrived at.’' quiry may beyond indictment, extend It follows accuracy sufficiency that the range and where will the inquiry conclusions are not sub- Church, cease?” W. Corpus, Habeas su- ject to corpus proceed- review a habeas pra, at 344. ing. only question which could be legislation permits While in other states raised is whether the acted the courts to test the sufficiency of evi- jurisdiction. lawful manner and within its course, presented dence Hennigan, jury, before a pursue did not Yet, legislature state, wisdom, of this remedy. its has would have been an appropriate pursue inquiry by limited attack to the conten- courts to those areas present Hennigan’s argu- tions that proceedings are affect the manner of the efficacy jurisdiction accept ments because the of the indict- or the to act. We require legislative ment is to go a defendant to answer to limitation and will no further charges petit criminal in front of a jury and of our own accord. See Maldonado v. justify liberty pending State, restraint of trial. 93 N.M. 604 P.2d proper, system our jurisprudence.

It is no more ab “The acid legislative authority rule, sence of or court findings test of their actions [the sufficiency however, review evidence grand jury], will come when the petit jury after a supporting an indictment petit its renders verdict finding guilty has returned under the charges brought.” they have Bartram v. beyond proof standard of a reasonable State, 1119,1157 Md.App. 364 A.2d plea guilty by than doubt it is after aff'd 280 Md. 374 A.2d 1144 Mechanik, defendant. States (1977). Any additional evaluation of the 938, 89 475 U.S. 106 S.Ct. L.Ed.2d 50 presented grand evidence before jury the (1986); Henderson, Tollett v. U.S. prior provide any signifi- to trial does not (1973). In S.Ct. 36 L.Ed.2d protection rights cant of the defendant’s so holding though in that even error the judicial justify as to the and economic grand may jury proceeding which have re require. waste that it would Costello v. quired prior indictment to dismissal the States, supra. present, trial was the Court of the *“ * * greatest safeguard to the [T]he inappro United States declared that it was liberty petit of the accused is the priate to indictment after dismiss the trial governing and the rules its determination guilty. and a verdict of “* * * * * * guilt of a defendant’s or innocence.” in The error these cases States, supra, Silverthorne v. United potential had the theoretical to affect the 400 F.2d at 634. grand jury’s determination whether to particular indict these defendants for the holding foreclosing any Our review of they charged. offense with which were sufficiency support of the evidence to petite But jury’s subsequent guilty grand jury indictment is also consistent only verdict not means that there was prior holdings relating of this court probable cause to believe that the de- possible in preliminary claims of error guilty charged, fendants were but stage and the of such error effect on a they guilty in charged are fact pleading guilt. finding Commenting beyond a reasonable doubt. Measured Alabama, supra, on Coleman v. and Ger verdict, then, petit jury’s any er- stein we in Pugh, supra, v. said Thomas v. ror in grand jury proceeding connect- Justice County, Court Washakie charging ed with the decision was harm- P.2d at n. 7: beyond less a reasonable doubt.” Unit- interpret “If we correctly these deci- Mechanik, supra, ed States v. 475 U.S. at sions, the proper effect whether a [of] 70, 106 S.Ct. at 941-42. preliminary examination was had or holding, prevents Our any inquiry properly whether it was conducted is un- sufficiency into the of the sup- evidence important considering appeal on porting indictment, grand jury soundly legality of the conviction of the defend- finding probable based. A cause serves appears position ant. This be the tak- trial; bind defendant over for Spears, en State v. conversely, the of a return “no bill” by a Wyo. 300 P.2d and State grand jury acquit does not the defendant Vines, v. 49 Wyo. 54 P.2d 826 because jeopardy no has attached at that (1936).” stage proceedings. of the State, Wilson v. Similarly, we have stated that a defendant supra. charge present- The same could be pleads guilty who cannot raise constitution- ed to a different with either the deprivations appeal al which do not same or additional If evidence. reach jurisdiction of the cause, court. Vallo probable finds then the defend- State, (1986). trial, Wyo., P.2d 1045 brought ant and he has his question issue is legali- also like the constitutionally guaranteed day in court. juncture, ty At of an Wyoming; the evidence is arrest warrant tested it guilt beyond standard of affects taking the lawfulness of the reasonable into doubt, highest recognized custody impact upon ques- standard but has State, guilt or innocence. Crouse v. tion of argument, his next Hennigan complains Wyo., 384 P.2d 321 that the number of indictments and the individual counts found in a rela Fashioning appropriate remedy tively period short support time an infer arising harm out of an error ence of stamping. rubber We reiterate the preliminary stage that did not have strong presumption of regularity upon effect the fairness of trial jury proceedings. United States v. John petit jury, guilty after a verdict of has son, supra. Hennigan and others assert returned, difficult, been would be if not that the return of 61 indictments encom impossible. It could not warrant a reversal passing 327 days counts three overcomes of the conviction. United States v. Me that presumption. We note that these chanik, supra; States, Arcuri v. United complex, cases were not and it would seem supra. If the brought light defect is that the might relied trial, prior problem present. is not the same addressing evidence in cases in example, For challenge defendant volving several defendants. Given these jurisdiction a defect in the circumstances, we cannot say that jury by corpus prior habeas to trial. Sec properly perform did not their 1-27-125, W.S.1977; assigned United States available; tion tasks in the v. time we presume they will Taylor, supra. that did. appropriate It is that the permitted defendant jurisdic to test the As a procedural error, final assertion of prior petit tion to jury, trial before a Hennigan contends that he deprived was of a jury proceeding record of the ex right discovery. his to Hennigan’s assump ists, he should be upon allowed access to it tion that there is right a constitutional to showing a of need and a demonstration discovery of in a criminal case contrary is to materiality opportuni to his defense. That the rule articulated Court however, ty, of the does not United States. v. Bur justify fishing a ex Weatherford sey, 545, 429 U.S. pedition in 97 S.Ct. possible jurisdictional search of L.Ed.2d 30 (1977),quoted State, in Fitzgerald v. Wyo., defects strong because there is a presump (1979). 601 P.2d Hennigan pro also tion of regularity grand jury proceedings poses purpose that of a preliminary particular irregularities must be al hearing is opportunity to offer an for dis Johnson, leged. United States v. 319 U.S. covery, position a previously has been (1943). S.Ct. 87 L.Ed. 1546 refuted E.g., decisions of this court. record, 606(b), the absence of a Rule State, supra; State, Wilson v. Weddle v. W.R.E., permits a of member a supra. questions to answer respect with to wheth- “ * * * appellant’s ‘From discussion it er prejudicial extraneous information im- purpose seems that asking his main properly brought was jury’s to the atten- preliminary for a examination access [or tion or any whether outside influence im- testimony] was to ob- properly brought upon juror. to bear knowledge tain of the facts the state rule, however, That testimony forecloses expected prove to at the trial. He was by juror validity into the of an indictment really a disclosure of seeking the state’s respect to: matter or statement evidence in might order that he prepare occurring during the jury’s course of the his defense. It is clear that under out deliberations; anything the effect of preliminary statute a examination is not * * * his or other juror’s mind or emotions purpose. for that There seems to influencing him to assent or dissent be no rule of the common law statute indictment; from the pro- or his mental gives right a defendant the Logic cesses connection therewith. dic- pry trial to into the state’s case ob- tates that a of the sufficiency re-evaluation taining evidence, a disclosure of its of the justify evidence to an indictment though authority there is for the view infringes upon protected prerogatives that the trial court has at least a discre- grand jury. tionary power permit to the defendant to

inspect preliminary hearing by for the vir- documents chattels denial obtaining presenting information that tue of the case to a purpose ” equal protection him to a defense.’ is a violation clause will enable make Spears, supra, v. P.2d at federal constitution. State Vines, supra, State v. quoting from Hennigan authority Since cites federal 221, 223, Wyo. at at 54 P.2d proposition, for his constitutional we must argument his Hennigan argues premised also that a denial assume that grounds. due he was state not federal occurred because constitutional Sisneros, v. State plead charges only with the See 137 Ariz. forced (1983). then, being presume, the date information and P.2d 721 We available allegedly goal persuade he quotation Hennigan’s from the is to statute this court Superior Hawkins v. Hennigan adopt to file a mo rationale of violated. chose not City If County Court Fran- he needed San particulars. for a bill of tion cisco, supra, plea, in order make a more information conclude that the denial particulars preliminary hearing right tool procedural bill is the violated his Hawkes protection accomplishes purpose. equal under law. State, Wyo., 626 P.2d 1041 Our concept equal protection is ad- go beyond of discovery Wyoming rules provisions in three dressed of the Constitu- necessary, constitutionally and if what Wyoming: tion of the State of Hennigan’s rights discovery did not af equality enjoyment “Since natu- protection, him be attributed ford it must rights ral civil sure made to the fact that he did invoke them. political through equality, the laws of Otherwise, discovery would rules affecting political rights this state inadequate in a context. If constitutional privileges of its citizens shall be inadequacy present, ap were then the that race, color, distinction without of sex or propriate by redress would be statute or or any circumstance condition whatsoev- argument appeal and not in rule an on in a er other than or incompetency, individual discovery in which available was not case duly court by unworthiness ascertained a utilized. Const., jurisdiction.” competent of Wyo. Hennigan’s I, careful review of conten- 3.

Our Art. § and this tions record convinces us that the life, right liberty “In inherent their procedure process and followed pursuit happiness, of mem- and the all grand jury proceedings resulting in his in- equal.” the human bers of race are deny Hennigan pro- did not due dictment Const., I, Wyo. Art. 2.§ of law. cess general “All of a laws nature shall Const., operation.” Wyo. a uniform Art. Hennigan’s We argu next address I, 34. § protection ment that he was equal denied Hennigan the law. of fails offer In re Boul- in argument The made ter, 521, for support argument. 335, He relies on supra, Wyo. at that 40 P. at Superior City Hawkins Court “unjust made Art. it and unconsti- § County Francisco, San subject 22 Cal.3d one tutional to man to an accusa- Cal.Rptr. 435, by 586 P.2d 916 in tion of an anoth- means information and by by which Court of held er indictment California an found and returned prosecution by caprice that and the at jury, prosecut- indictment de a of the post-indictment of a preliminary ing responded nial hear This court officer.” that ing equal protection resulted a denial of required law was uniform because it a find- provisions ing under probable by constitution cause either “a magis- the state of jury upon testimony by California. That decision was sworn or upon premised grounds state upon publicly given constitutional trate evidence accused, federal grounds, presence right not constitutional and no on with a pro- ap case has been by part discovered either his to cross-examination and to In re pellant suggests or this court which that duce his own behalf”. witnesses Boulter, Wyo. 40 P. supra, equal protection at at 522. there are kinds of two first, arguments: The where say: court a distinction of went “ * * * law, class exists which is created by such seems us It clear to equal protection argument instances an legislature right had the to retain the fails; usually second, in the instance of a system, provide and to separate distinction of aby class created by accusation information as well as condition which results in disparate treat- indictment, authority given under apart ment in itself, from law the law permission ‘change, reg- constitutional such a circumstance serves as a successful ulate, grand jury system.’ abolish * * * premise equal protection argument. for an provision system The for the dual Oregon pointed The out that the de- act.” In is not accusation fatal to argument fendant’s concerning preliminary Boulter, supra, Wyo. re at P. at class, hearings belongs is, in the first equal protection he was denied of the law charging system The authorized dual in simply provided because law for two not Art. does violate §§ alternative treatments and not in the sec- Wyo- 3 of the Constitution the State ond class because of some characteristic ming any more than it Art. offends 34§ applicable to the apart defendant that was Wyo- of the Constitution of the State fact, from the law. no class can be ming. perceived advantages which prosecutor shown until the exercises the procedure involving flow from the a com- discretion law affords. plaint preliminary examination fol- “ * * * But these not defendants do exist justify lowed an information do categories distinguish- or classes with Hennigan conclusion been has denied ing apart characteristics before and from equal protection because law prosecutor’s charge decision how provides was used. Our law one, some, or all defendants. Aside discretionary stages treatment at several the manner which decision is prosecution. of that dis- exercise made, defendants [citation omitted] cretion cannot found to work denial of charged procedure under either are equal protection solely disparate because ‘classes’ as an effect of the dual treatment unless the denial is based scheme itself.” State v. procedural class. identifiable As we noted an- Clark, supra, 630 P.2d at 818. State, in Cavanagh context, other v. Wyo., Cisneros, supra; People also, v. State See (1973): 505 P.2d v. District Second Dis- Court Judicial “ * * * [Njeither the Fourteenth Amend- trict, Colo., reject- P.2d 490 also ment of the United States Constitution ing the Hawkins rationale. Const., requires nor Art. Wyo. § Furthermore, Hawkins the dissent in arbitrary exact equality. Only and invid- Superior City County Court of of condemned, ious discrimination are nei- Francisco, supra, is well taken. The San ther present of which are in this case.” constitution, California like the constitution judgment, our the rationale found Wyoming, gave legislature pow- the the Clark, supra, satisfactorily State v. refutes proce- grand jury er to alter or abolish Superior City Hawkins v. Court noted, dure. system As the dissent if the Francisco, County San supra. The Or- abolished, is to be it be accom- should egon court there held that a statute which legislature plished by enacting ap- justified being charged a defendant either people parent will of the than rather deny or information did not indictment Hennigan’s court plea decision. for reform equal protection, despite fact that the grand jury system of the is addressed to procedures through prelimi- afforded wrong We do forum. not discuss Hen- nary hearing unquestionably poten- were nigan’s arguments disparity concerning tially important to the defendant and of- beyond treatment that which we have said important advantages prosecu- fered discussing pro- over his claimed due denial of pointed tion The cess. indictment. out urged by

The second issue Henni- available whenever the district court deems gan necessary grand jury impaneled impanel grand is that the it to jury. a reason, improperly, and for that it was examining After history of this stat jurisdiction to return an indict without ute, it is clear that the word “necessary” challenge premised upon ment. This imply any specific does not finding that finding contention there was no calling grand jury necessary. That necessity by respect the district court with interpretation foreign would have been impaneling grand Hennigan jury. a ar the common law and is inconsistent with gues finding required by the discretionary authority found 7-5-102, W.S.1977, per provides which § statute. No case has been found from part: tinent jurisdictions requires other that a opinion finding necessity “Whenever the district court make a even grand though judge necessary a he must the use of the “necessary” word directing appears in similar grand jury make an order a statutes. The district grand jury court stated that the drawn and summoned to attend be- was neces sary, State, and that is sufficient. fore the court.” Pinn v. (1922). 107 Neb. 186 N.W. 544 Fur that, Hennigan argues since the order di- ther, the district court did not abuse its recting impaneling grand jury of this calling grand jury. discretion does not contain a sufficient statement of generally accepted rule is that the district statute, facts or even cite this the court did court need not take evidence or seek advice required finding necessity. make the concerning propriety calling grand analysis Our of the statute leads us to the jury; such authority inherent is available finding conclusion that a formal of necessi- at its discretion. People, Williams v. ty is not necessary impanel grand jury (1909). Colo. 103 P. 298 There is noth 7-5-102, pursuant W.S.1977. The § ing in the record to indicate abuse of grants authority statute to the district discretion in the district court’s exercise court to call a in its discretion if power impanel grand its jury. Cf. the court necessary. believes one is State ex rel. Woodahl v. District Court of adopted This statute was in its initial First Judicial District in and Lewis form in 1899. appear It would County, and Clark 166 Mont. 530 P.2d purpose was to confer authority on the impanel district court to when Hennigan then insists in that the regular convening jury, as dictment should be dismissed because the law, known at common longer was no nec- foreman of the jury did not endorse essary adoption because of the of the alter- the words “A True Bill” on the indictment. prosecution native form of by information. argument language This relies Wright, supra. In re general rule is 7-5-106, W.S.1977, to the effect: § legislature may determine the (9) “Nine proper jury must concur summoning circumstances for the finding the of an impaneling indictment. When so grand of a jury. found grand the foreman of jury the “No imposed restraint has by been the upon shall endorse such indictment the upon constitution power legis- the words, Bill,’ ‘A True and shall subscribe lature time, to determine at what under his name thereto.” what manner, circumstances and in what grand jury may summoned, but the The words “A typed upon True Bill” were matter has entirely been left to the dis- the by grand indictment returned the legislature.” cretion of the People being v. rather than personally by endorsed Grizzel, 11, 78, 382 Ill. 46 N.E.2d 82 the foreman. Each indictment did contain (1943). signature of the foreman. Wyoming, legislature

In has Again Hennigan extended go chooses to “bare” authority impanel grand terms of his any authority. reliance court, the district and that authority is The authorities we found refute his conten- States, In Frisbie v. United tions. alleged the defendant is therein to 160, 586, U.S. S.Ct. 39 L.Ed. 657 have violated. Error in the citation or its Court of the United States or other or imper- omission defect held that the failure to endorse the words which does prejudice not tend to fection “A True Bill” and the failure of the fore- right substantial defendant sign man to require indictment did not upon the merits or to mislead the de- that it be set aside. The court there ex- prejudice to his shall not be fendant plained that formality of the words “A grounds dismissal the indictment True Bill” played once important role reversal a con- information possibly was the evidence of the viction.” (Emphasis added.) grand jury’s determination. formality This language of this rule manifests the longer is no required by unless it be stat- spirit of the law not to elevate form over ute. Hennigan’s substance. The thrust of argu- law, At common the words “A True Bill” ment is to paramount, make form probable the indictment denoted cause light jury’s of a verdict of guilty, mea- had been Conversely, found. if there was by sured guilt standard of beyond a finding cause, probable the indict- doubt, reasonable it would be ludicrous to ment was “ignora- returned with the word vacate his conviction for this hyper- sort of States, mus.” Frisbie v. supra. technical reason. context, significance of the words The last issue raised by Hennigan essen- “A True Bill” was to furnish evidence of tially is a reiteration his due finding probable cause equal protection Hennigan, claims. in ef- jurors. Other indicating evidence that deci- fect, requests adopt pre- that this court sion is acceptable thus absence sumption that these indictments failed to requirement some compliance of strict with manifest a reliable determination proba- State, the statute. Kirkland 86 Fla. ble cause and invites us to search the So. 502 possible record for some violation. That The evidence found this record is that presumption is contrary applicable the indictment was returned open court Johnson, United States v. one. supra. It presence jurors; of all the foreman also is inconsistent finding guilt with the personally signed verdict; and the beyond a petit reasonable doubt words “A True Bill” were contained in each Mechanik, supra. United States v. jury. compliance indictments. Strict Hennigan’s identify spe- burden is to some the statute necessary, is not and this state cific jury procedure violation of the of facts results in a clear manifestation or some reaching jurisdiction. defect its It probable found cause. appropriate is not for this court to examine possible No prejudice Hennigan can be possible record to seek out some viola- discerned from the failure to have the tion that in all probability phantom. is a words “A True Bill” personally endorsed We will not undertake a review of the by the foreman on the indictment. See figments record to search for the of Henni- States, Glosser v. United U.S. gan’s imagination. See United States v. S.Ct. 86 L.Ed. reh. denied sub Smyth, supra. States, Kretske v. United nom 315 U.S. (1942) 62 S.Ct. 86 L.Ed. 1222 given We have lengthy careful and con- (failure open to recite indictment Hennigan’s sideration to claims because

was not defective). sufficient to make it they are asserted a number of defend- Lastly, 9, W.R.Cr.P., Rule pertinent ants grand jury. indicted the same We controlling in this provides: case. It are satisfied that there was no abuse of the “ * * * grand jury process; The indictment or information no violation of Henni-

shall state for gan’s each count the rights; official or constitutional and no in- customary statute, rule, citation of the fringement upon trial, right his to a fair regulation provision or other product of law the of which was that he was guilty beyond particularly a reasonable doubt. Not

found different essential Gillette, Campbell The function was the judgment County, and sentence is affirmed. Wyoming, grand jury during in its conduct June, the session from through late MACY, J., concurring filed a opinion. early January, Any suggested sem- URBIGKIT, J., dissenting filed a instrumentality blance of due opinion. only not imaginary. antithetical but This change court will not that fact distin- MACY, Justice, concurring. guished style and approving detail of the opinion simply I concur this with because Kilpatrick, United States v. opinion. See strictly comply the failure to (10th Cir.1987),Seymour, J., 821 F.2d 1456 grand jury statutes in effect at time did dissenting. rights not violate defendant’s constitutional Unfortunately, in singular respects, some process. However, to due I cannot sub- Wyoming as a state is developmentally reasoning scribe to the that we are free to late, regard especially in to the function of irregularities consider proceed- in criminal grand jury. This year state ings being merely harmless because a statutorily left the Nineteenth Century to guilty by jury. defendant later is found progress position many to a state clearly wrong prosecutor degree govern- It courts and to a was for the the federal ago ment had reached through pol- in this case to not decades part reveal that at least icy changes procedural protection. In grand jury proceedings had been dissenting, I supervisory respon- invite the recorded. sibility procedural of this court for modern- Those do fairly who conduct criminal regression ization and not to outmoded and proceedings should take little comfort with supervisory discarded standards. That re- holdings point this case. There is a sponsibility for justice-delivery the state at provide which this Court must the reme- system is not dissimilar to the function of dy of reversal justice when those the United States Court delivery system do not exercise fundamen- justice administration of in the federal conducting proceed- tal fairness in criminal States, courts, McNabb v. United 318 U.S. ings, regardless irregu- of whether or not 332, 608, 819, 63 S.Ct. 87 L.Ed. reh. denied proportions. larities reach constitutional 1322, 319 U.S. 63 S.Ct. 87 L.Ed. 1727 (1943); Hasting, United States v. U.S. URBIGKIT, Justice, dissenting. 103 S.Ct. 76 L.Ed.2d 96 In past English heritage although position may times be in our now re- Hobby v. jury-trial before the mission not abandonment. process for criminal States, 339,104 guilt 468 U.S. S.Ct. developed, jus- determination was United States v. (1984); 82 L.Ed.2d 260 system tice invoked oath and ordeal. Mechanik, 475 U.S. 106 S.Ct. adaptation ordeal, one the accused was (1986). See also United States L.Ed.2d 50 thrown into the if accepted water and Kilpatrick, supra, and United States v. thereby surface, and not returned to the he Pino, (10th Cir.1983). 708 F.2d 523 innocent; determinably conversely, if repulsed by the water to return alive to the In an informative article on elimination surface, guilty he was and therefore to be trials, delay Judge Campbell, in criminal punished appropriately for his criminal addressing grand juries, observed: Naftalis, character. M. Frankel and G. “A way delay most effective to reduce Jury, Trial, Grand An p. Institution on back-log justice sys- our criminal (1977); Murov, An Examination expedite tem and trials would be to abol- * * * Quest, Jury: Inquest Grand 51 N.Y. Jury. great ish the This 1979). (February St.B.J. 115 For a differ- past long institution of the has ceased to Helmholz, ent perspective, see The Early guardian people be the for which History Jury the Grand and the Canon purpose Runnymede. it was created at Law, Today U.Chi.L.Rev. 613 it is tool for the but convenient

379 abuses, often prosecutor solely properly used for ed with no while striv- —too publicity. Any experienced prosecutor ing epitomize integ- twin ethics of * * * anybody will admit that he can indict at rity fairness. and anything for time almost again “The foundation must be estab- grand (1973). jury.” 55 F.R.D. grand operate lished for the jury as protector of the accused.” Id. at 250. case, well grand this other jury coming cases to this court from the I.ISSUES BY THE PRESENTED Campbell County,

session will dissent GRAND JURY PROCESS process-driver application not of repealed, outdated now statute but also 1. Validity proceedings General: by majority opinion virtue of the here reas- Campbell and County results session. serting principles outdated should Recording availability 2. and of a record. have been These axi- interred. outmoded Discovery grand 3. and of disclosure applied oms will now be to a somewhat testimony. activities and witness otherwise, pro- modernized law which rules, gressive application and suitable hearsay incompetent 4. Use of and evi- justified could have the continued institu- dence for indictment. specialized

tion and Due-process requirements 5. under closely sys- defined status within a modern Wyoming Constitution. Clark, The tem of criminal See L. law. Equal-protection 6. requirements under Jury, Grand and Abuse Politi- Use of Constitution. Power, cal countervailing and the for view 7. of Burden there cases—where are reform, retention with M. Frankel and G. many really so it does matter how Naftalis, Jury, The Grand An Institution the result was achieved. Trial, supra. 8. Prosecutorial misconduct errone- and After reviewing and then defining advice, including: (a) ous of term Campbell epoch County as “law Mur- (b) jury; interspousal privilege of witness- ray,” it is clear future of the es; (c) alleged grant immunity of in order jury deserves the close attention of require testimony; (d) insulation of court, Bar, judiciary, trial and the third-party hearsay witness use of legislature process reach correction to indictment. present prevailing precedent, standards of practice, modern due and constitutional by subsequent 9. Waiver misconduct Goldstein, equal protection.1 Mechanik, verdict, States The State and the Accused: Balance supra, U.S. 106 S.Ct. 89 L.Ed. Procedure,

Advantage in Criminal 2d 50. (1960); Rosenfeld, Yale L.Rev. 1149 Justice Empaneling jury engrossment 10. Jury, Grand p. Cal.Lawyer, indictments. Essay, How is a 1984); Grand (February (1985): Jury, Grand 31 S.D.L.Rev. 245 II.FACTUAL AND LEGAL “As a result of these factors and charac- BACKGROUND grand jury, prosecutors teristics of the Saga Campbell County A. proving guilt lack the burden Jury Circa not, beyond They doubt. reasonable do however, ensuring completely lack burden of incomparable Not with the grand jury proceedings County general are conduct- Johnson wars of the same Tribe, Relevantly, beginning philosophy tyranny." Lau- as stated L. Constitu- Choices, rence H. Tribe: p. 7 tional permanent skepticism bibliography "This is not to advocate or A of books authors on the urge subject indecision or to halt to confident is found 10 Am. deeply advocacy and even con- committed (1971-72), encompasses Crim.L.Rev. that, positions. say stitutional It is to mat- more than books and 150 articles. power, ters doubt the end and distrust before, nearly century Camp-

area of not in the were record and were unknown grand County anyone except judge, the trial county bell accommodates an interesting legal perspective. attorney, membership and the historical jury, inquiry by until writer this as a mem- 10, 1985, Murray, On June James R. ber Court revealed some Campbell County Attorney, filed a motion aspects of the minimal documentation in grand jury, general to convene a sub- May preparation when for this stating:2 stance opinion However, underway. in se- Campbell County “1. The Sheriffs De- quential relationship to the events that oc- conducting partment has been an under- curred, undisclosed to defendants and their investigation cover controlled substance counsel, instructions direct- (9) past for the nine months. ed: seventy pres- are excess cases “2. respect “With to those accused of crime ently ready prosecution presentation. you will hear one side aof case. It investigation “3. The has sev- revealed your duty guilt is not to decide the controlled eral substance distribution innocence of the accused. You are an require investiga- schemes will investigative body. and accusatorial As power Jury complete tive of a Grand degree of evidence sufficient to investigation. indictment; warrant the return of an community “4. The needs of the dictate you instruct that an indictment should be Jury that Grand should be convened to found when all the evidence before investigate professional and official cor- together, you unexplained taken ifor ruption.” uncontradicted, your judgment would in jury. warrant a conviction by a trial If Accommodating motion, and accom- degree the evidence fails to establish panied by hearing apparently which was of evidence sufficient to warrant the re- transcribed, reported certainly not indictment, turn of you an then must convening order stated: refuse to return a ‘true bill’. “The of Wyoming’s State motion to con- purpose public “No would be served Campbell County vene a Jury hav- indicting person appears you when it ing Court, come before the the Court that the evidence is not sufficient to sus- having testimony sup- received sworn Unjust tain a conviction. or unfounded port being of the motion and otherwise indictments should not be returned premises; advised in the against anyone. “IT IS THEREFORE ORDERED AND “You just your must be fair and delib- ADJUDGED the: your ability erations to the best of “1. pursuant The Clerk of the Court understanding. requires Your oath 7-5-102, (16) shall W.S. summon sixteen malice, you any person through not indict prospective Grand Jurors. you hatred or ill-will. Nor should fail to prospective “2. The Grand Jurors shall any person fear, favor, through indict report Court, to the Clerk of District affection, hope reward or of reward. Campbell County Courthouse, at 1:30 guided by impartial You must be spir- an June, day P.M. on the 21st it, social, racial, free personal, reli- “3. hearing The State’s motion and the gious feeling. bias or on the State’s motion shall be sealed “You are cautioned that rumor is unrelia- until further order of the Court. ble, disregarded. it must be entirely You June, “DONE day this 10th 1985.” receiving must be hearsay cautious event, initiating Details records testimony; say testimony that is to of a (never transcripts produced), said, and the sub- witness as to someone what else stance grand jury, of the instructions to the you unless are satisfied that the source motion, evidence, copy any hearing hearing, 2. A of this either in district-court or in the record calling jury, the order and the instructions appeal. given, defendants, were never made available to investigative is reliable. transcripts You are these was never made known to provides defendants’ counsel. body hearsay often furthering your means and direction days, met for three June investigation. person No be com- 24, 25, 26, 1985, and rendered indict- pelled against abe witness himself individuals, against ments encompassing grant unless he has been furnished of 237 separate about criminal counts. No immunity. cautiously weigh You should transcribed record is available as to what testimony received to or which is under a witness witnesses testified how the supported indictments were grant evidence. It immunity. County of and resolve nity. Prosecuting ^[*] any questions concerning ^[*] Attorney ^[*] and ^[*] the court will ^[*] immu- ^[*] ments were is assumed from a multitude denied in considered in made in its any response, obtained briefs, public information and well as generally that these indict- testimony of comments of deputy testifying sheriff about and Prosecuting County Attorney “The and summarizing investigative reports of an representative of the law State agent undercover then who was also em- prosecutions. in all criminal ployed Campbell County deputy present It is duty his to be with the agent, sheriff. This undercover David Mi- room, present Jury in its evi- Lauck, chael who used undercover dence, to witnesses examine the and to Lucas, although available, name of Dale give upon any matter advice of law appear for some reason was not called to You be raised. should follow testify and before the instructions of Prosecutor on testified at the trials individual held you matters of law are unless instructed fall.3 are, contrary by to the Court. You appeals Seven from resulted the initial 67 however, the judges sole the facts and indictments, subsequently and two oc- Prosecuting neither the Attorney nor continuing curred activities which you his assistants influence will through year lasted the end and into your decision as to whether an indict- January of 1986. After the initial three- ment approved. should be Statements indictments, day course by the County Prosecuting Attorney pursued investigative a course of inter- or any of his on matters assistants other views, witnesses, subpoenaed some as tar- than the law are not evidence and should targets, some be gets, stated not to some disregarded supported by unless not, granted immunity, some others called testimony brought sworn and exhibits apparent purpose perjury for an to the Prose- you. before addition charges. An total additional of 27 indict- witnesses, cuting Attorney and there made, ments were then apparently includ- may be present Jury also in the Grand ing charges, some per- controlled-substance Room reporter a court who will record jury complaints, concluding gam- the testimony (Em- the witnesses.” bling charges through 13-page ato final phasis added.) 31, 1986, report which, January filed Details generally about what occurred addition a recommendation of an annual part must be based in on unanswered as- session, also included a note for this court: sumptions general in briefs and informa- Wyoming Supreme “9. The Court tion, since it told cannot even be for sure at policies should review its on the use reporter actually what times a court drugs illegal illicit by pub- activities present, transcripts but it is clear that were attorneys lic who officials are to deter- testimony made of only selected the later mine their profes- fitness for continued investigatory stages, practice.” existence of sional assumption justifi- representative, having testify 3. One with some manifested in not perjury investigation, cation is that insulation from and cross- about his would examination since was assured the undercover first under oath at trial examination. time having perspective, just very

In historical the reaction of received the brief recently county attorney, doing of the community jury activity orally am probably by way what would be done primary in the 1986 Fall election of a resulted brief, reply long-time and some form of contrast defeat of the sheriff who had be- the brief of tween the defendants in this activity, by been in the forefront of the county case and the brief of 6,387 3,087, attorney. adverse vote and of the prosecuting attorney county a sim- outset, normally “At the one would be 5,947 3,322. ilar vote of Not immunized expected say to be able to that these are grand jury subpoena target consid- facts, of the statements and this is eration five or six were members talking what we’re about. I think that a legal profession, of whom none indict- were large part problem of the defendants County grand Campbell ed ses- in this case revolves around the fact that sions. The number of trials is not estab- nothing proceedings we know about the records, appeal except lished in that nine file, except what is reflected the court filed, including: appeals to this court were the court’s recorded instructions. We State, Wyo., Brown v. 738 P.2d 1092 nothing know about the number of investi- State, Wyo., (1987); v. Gist 737 P.2d 336 gations, except what we read in the news- State, Heggie v. (1987); (dis- No. 86-22 paper. long any We do not know how State, 5, 1987); August Sword missed things these went. We assumed from (1987); Deckert v. Wyo., 746 P.2d 423 they what we did know that had rather State, (dismissed 1987); July No. 86-34 rapid review of the cases. We stated that State, (1987); Lee v. Wyo., 743 P.2d 296 we believed that these indictments were State, 852, (1987); Burke v. Wyo., 746 P.2d solely hearsay returned on the by basis State, Wyo., and Kortz v. 746 P.2d 435 sheriffs, deputy as that has not been de- nied, and, anything, it’s been confirmed by county attorney’s brief. reversed, Three cases thus far been believe, and three of the accused received commuta- know, “We but we do not that Governor, including tion from the Henni- recorded, proceedings none were gan, who is the defendant here. Two of and I think that is conceded the coun- the commutations effectuated dismissals of ty attorney’s saying without so brief time, appeals; Hennigan did not. At this much in words. [Emphasis added.] * * * appeals three of the nine remain for deci- going “THE COURT: I’m to as- sion of this court. The character of the sume, you purpose do for the of these post-indict- facts and records which arguments, was, it, you put that there a considered, ment motions were reviewed rapid very review of the cases. It was a court, finally ap- certiorari and on period short of time. peal, is hearing demonstrated from ex- going “I’m also to assume that it was changes briefing comment. Exception- based, entirely, entirely if not almost at ally noteworthy is the fact that a court hearsay guess on I testimony well, least I — reporter actually present part at least say hearsay testimony. should not on time, time, perhaps all the “My might belief is that it have been the instructions, original accord with the court testimony of an undercover officer that none of which information was ever made participated alleged in the And if offenses. appellants. available to It is this status of case, suppose probably that is the I it disinformation that was reflected in the hearsay. wouldn’t be post-indictment, pre-trial hearing motion dismiss the indictments. probably “So I think it's one of those two, although I know the state’s brief talks GALLIVAN, University Wyo- “[MR. great I hearsay, deal about and would ming professor serving law as one of the say my understanding. is also that argument counsel for defendants —oral the trial going purposes court on the motion to dismiss “And I’m assume doing is, argument, What I’m I think of this none the testimo- now indictment:] ny upon “Specifically, these indictments we were what have is statu- based, although I has tory Wyoming understand there here in scheme which a then, testimony been some recorded since impaneled can to make a testimony upon but that none which finding probable cause. And we’ve reported these indictments were based was heard lot of grand jury, attacks testimony. very carefully but this instructed this response brief it finds that’s the “MR. “MR ^{[*] [*]} speaks for itself some substantiation GALLIVAN: Thank MURRAY: version ^{[*] [*]} the county attorney’s ^{[*] [*]} we * * * I proceeded upon, and shows that basi- ^{[*] [*]} think you. ^[*] # mode I % ^[*] brief. think three rather and this court is that a number of hours went into that some 232 counts were And ^[*] although somebody days rapid ^[*] session. at length the time it was ^[*] well time, aware ^[*] looks and returned ^[*] can tell impaneled. ^[*] fact, says you “And there has been no denial of due cally pleading what Professor Gallivan is process, adequate there has discovery, been argument the court novel is a that’s with- defendant can that wishes to as- out basis so far as law is con- right sert his 6th amendment go cerned federal ahead law. proceed At point trial. he will mystified respect “I’m a little with right have the to confront the witnesses protection equal denial of and denial of due people making before him and the that are process consistently have because cases allegations against him. process held that there’s no denial due right and grand no confrontation with a is no right “There common law to a jury, say, rights that is to 6th amendment preliminary hearing. right That must be afforded to at the defendant trial. statutory, right and that does exist in not Wyoming following grand jury a action nothing certainly wrong “There is with only by the form of an indictment. It’s hearsay simple exclusive reliance and the procedure statute rules criminal preliminary hearing reason that even at a following felony charge felony or a arrest procedure, specifically the rules of criminal prelim- you warrant wherein are afforded a 6(b), finding Rule probable states that hearing county inary court. There is no cause wholly part can be made or in based right preliminary constitutional hear- solely upon hearsay. ing. And we dealt with that with some speculation “There is that’s all we and degree of specificity our brief. There’s Honor, today, have heard here Your that process. no denial due That dealt grand ought jury somehow the to be dis- length. some with at quashed solved or the indictments for the court, we have Your simple “What may particu- reason that there be a Honor, generalized, philo- is kind that may larized need its at raise head that, sophical just it’s point ‘Judge, some statement future. know, gone not what’s on. fair You we might “I point out to the court that be- ought clog up system to be able to with afternoon, fore the here court this or this having preliminary a whole series hear- evening, need, particularized there is no level, ings the county at then and brought none whatsoever has been forth proceed on into district court.’ evidence. There has been evidence indicate that there is a need. There has proba- “The fact of the matter is that the been no evidence to indicate miscon- aspect handled ble cause of it was done and duct. grand jury, jurisdictionally now

“We’ve ^[*] heard ^[*] # lot of ^[*] speculation ^{[*] [*]} toas we’re in the proceed. district court we’re ready did, grand what “Any defendant, what and mentioned grand jury thought. before, guilty that he is feels that not worry, many people in this charged a 6th amend- “And I he’s with has

what do, people country many have ex- right, right is to confronta- ment pressed lately, about abuses of a tion, process protections due and all the emerge jury. hope I would that we would have along with it will at his go None ought exer- none of those abuses here. that's where he to be trial and that, by defense counsel. of a motion to been demonstrated cising the form dismiss, simply saying that it was a denial that, my and because of “Because process got that he indicted of due finding legally is a constituted it grand jury. jury, the motions are denied.” court’s belief covery sus a covery issues sufficient “[THE COURT:] #c preliminary methods under our ^[*] regard that were # hearing. finding With discussed, ^[*] regard to the dis- rules for dis- ^[*] there are it is this # ver- dertaken: procedure ant Petition for Writ Certiorari as a “Compounding Further later memorandum challenge stated, before the as submitted to the session and its perfunctory accompanying trials were un- to this court by defend- indict- problems are the that come ment any discussion of dis- “I believe that light secrecy, before trial. The non- misplaced. covery in that context is nonreviewability discoverability and hearing used for preliminary is not to be proceedings not undermines the reli- that, practical discovery. We all know as a ability process, but the indictment matter, way. quite often used that it’s go defendant well to trial without provide, not what the rules That is knowledge necessary the basic to defend way, although commonly it is used that charges.” proper preliminary is not the use of a hearing. B. Defendant

“So, prelimi- I fail lack of a to see how nary hearing any could have substantial Background the Individual of discovery by the effect on defendants. Typical accused in the of most of the course, is, “Additionally, of there as session, County grand Campbell jury Hen- concedes, I think no constitutional everyone nigan years age, years was 20 had ten of right preliminary or common law to a hear- intermittent formal education and an work 7(a) ing, Rule of our Rules of Criminal and fields, single. record in the oil and was He specifically exempts Procedure indictments problem from an alcoholic and suffered hearings in preliminary here the state Although was a controlled-substance user. Wyoming. generally involved with the other con- not short, substances, finding he both used and sold

“In it court trolled constituted, legally marijuana. some that the was legally and it was a constitut- that because facts, record, undisputed in the re- The grand jury, ed that the motions to dismiss 30, January veal sales of ¼ ounce 1985 for should be denied. $30; 1, February 1985 for one ounce 4, $25; that, earlier, $105; say February “I I it is ¼ ounce 1985 for will as said February of one ounce obviously not the common method used in and a further sale 21, Original beginning I think I’m to learn 1985 for contact had $100. this state. this, get I in and I between him and the undercover why the more involved occurred Lauck, agent, through by a say in somewhat of a facetious man- introduction work, party ner. been inundated with third with whom Lauck had em- have Judge county purchase O’Brien has. The court barked on a course of substance judges very pleased. They seem have been and who was later indicted. The trial was early preliminary hearings by nondescript and occurred saved a number of (see State, supra), suppose everyone this. So I not would feel course of events Lee v. previ- jury as I so that no member of the had do. grand Wyoming Constitution and Statutes jury in trial of C. ously served Considering complaint. criminal instituted day 1890, For in Wyoming its Consti- than the the concurrent rather consecutive tution reflected modern attitude: sentence, and in view alternative right by “The trial shall remain given Hennigan go had been which cases, inviolate a jury criminal but Hospital for treatment civil cases all courts or in State with criminal record, may cases in courts not of consist period probation, undergo penitentia- men, than may less twelve pre- confinement, ry nothing noteworthy in by scribed law. Hereafter a defense, the trial absent discernible men, consist of twelve nine of that if except preceded the case had been concurring may whom find an indict- information, by preliminary hearing prob- ment, legislature may change, but ably any not-guilty would have concluded regulate abolish the sys- defense, plea disposition by plea and would tem.” Article 9.§ expeditiously occurred. Since counsel Although jury provisions have ex- opening statement announced that Hen- XIV, days, isted from territorial Ch. Title nigan testify, chose not to no actual de- VI, Compiled Wyoming Laws of presented. fense substance was legislature progressive first state was sentence of not less than 18 months providing in Ch. Wyoming S.L. of 1890- 91, for the pre- alternative information and nor more than 36 months on each of the hearing liminary pro- as a most efficient counts also four included a fine of on $750 statute, cess. 1890-91 remained charge, surcharge each on each count $25 proceedings, effect for these has now Fund, for Victims’ Compensation been completely by rewritten Ch. S.L. of Wyoming “reimburse State May 22, effective County Campbell for the services (now 7-5-101, W.S.1977, et seq., § appointed counsel which the Court Replacement). provisions Substantive his- determines The credit $1000.00.”4 7-5-101, torically provided seq., et § for days given confinement of 216 in W.S.1977, specifications in addition to 4, 1986, February sentence dated calling judge, arrangement the district remaining December 1986 the un- compensation qualification, served sentence was commuted the Gov- taken, provision oath to be included for a Appellant to time present- ernor served. report requirements significant and other ly released from confinement. of a 1890 nature.5 circa provision clearly you supportable your your keep 4. This fellows shall own secret, precedent, justice state law or but was not raised an unless court called on in a to appeal issue. present per- make disclosures. You shall malice, will, through son or ill hatred nor (or you any unpresented the person 5. "At close of the term so leave before if shall ordered), fear, affection, through any the clerk the district court shall favor or or for thereof; copy report grand jury hope your a furnish of the of the or but reward all newspaper truth, published county, presentments you present to in said shall the truth, the (1), publication, payment nothing there be one for and whole truth and the but accord- county by ing your for the same shall be made the best of skill to and under- 7-5-203, county by standing.”’ commissioners of said on warrant Section W.S.1977. 7-5-107, sworn, grand jury being treasurer.” Section after W.S.1977. “The shall be grand jury impaneled, by charged duty judge, "When shall be toas their who number, (1) appoint particularly court shall one of the shall their call attention to the 7-5-202, obligation secrecy foreman.” Section W.S.1977. their which oaths im- appointed, pose, "When the shall foreman be to such as he is and offenses law required specially charge. charge or be oath affirmation shall administered to to After the *You, court, following grand jury him the words: as foreman of the shall retire with (or them, inquest, solemnly appointed of this affirm) do swear officer attend of, you diligently inquire proceed inquire present will all shall presentment all true make of such whatever within the matters offenses committed lim- things given you charge, county they shall be or which its of the in and for were your knowledge touching impaneled 7-5-205, otherwise come to and sworn or affirmed.” Section state, present service. The counsel of the W.S.1977. 386

Wyoming construing preliminary either the information cases hearing Hopkinson provisions Boyd was correct. statutory constitutional or five: In re questions here, 1985, raised no material and con- days to total territorial Cook Wright, 478, (1891); sequently due-process, we undertake Wyo. 3 27 P. 565 Territory, Wyo. flawed-process in- 110, (1884); equal-protection, v. P. 887 Boulter, quiries and In re free from authori- 329, earlier Wyo. 40 P. 520 ty subjects presented. on the statehood; (1895), predating and from that reappear appellate date consider not to Wyoming Supreme fairly Court re- ation until the unusual circumstances cently adopted general some rules which 1983, Hopkinson v. Hopkinson cases in grand jury process, include identical or sim- State, (1981), cert. de Wyo., 632 P.2d 79 proce- ilar to the federal rules of criminal 922, 71 L.Ed. nied 455 U.S. S.Ct. dure: Boyd, State (1982), except 2d 463 court, “In all cases triable in district ex- (1974), Wyo., P.2d 287 cert. denied 423 indictment, cept upon the defendant shall 46 L.Ed.2d U.S. S.Ct. preliminary entitled to a examina- gave which minimal consideration W.R.Cr.P.; tion.” Rule although involving grand jury issues indict 10, W.R.Cr.P., relating Rule to issue of state-process The minimal involve ment. indictment; 18(a)(3), on Rule warrant W.R. grand jury in the interim 90 ment Cr.P., provided Act the Jencks feder- efficient, years occasioned the more was 16(b), F.R.Cr.P.; provisions al rule of Rule expen additionally protective, and far less 1101(b)(2), W.R.E., providing and Rule information-charging process. sive apply pro- of evidence would not rules ceedings grand jury. before the case, challenge In to the Cook inappropriately indictment was raised redrafting Commencing Wyo- with the quash motion to which reached errors Wyoming grand ming Statutes Title apparent on the face of the record rather jury code was rewritten Ch. S.L. appropriate plea in than the abatement. will be made in the Wyoming 1987. Note Wright, supra, re cases, opinion The next in this where reference two discussion Boulter, and In re Campbell County may scenario supra, determined that prosecuting attorney, interrogated witness had been and refused to "The or assistant 7-5-210, attorney, prosecuting open shall be allowed at all answer in court.” Section W.S. appear grand jury for the times to purpose before giving any information relative to grand juror or shall "No officer them, cognizable by giving matter them disclose that an indictment has been found upon any legal they may when advice require matter custody against any person not in or under it; permitted and he to inter- bail, except by issuing process, until the rogate they or he witnesses before them when indictment is filed and the case docketed.” necessary; attorney, shall deem it but no such 7-5-212, W.S.1977. Section any person permitted nor other shall be to be grand juror “No shall be allowed state views, present during expression of their testify any court in what manner he or giving any or the of their votes on matter any other members of the voted 7-5-206, before them." Section W.S.1977. them, opinion question before or what appearing witness "If expressed by any juror in relation to such interrogatories shall refuse to dur- answer 7-5-213, question.” W.S.1977. Section examination, ing the course of his the fact By provision statute enacted in additional writing shall be communicated to the court in grand jury. has been made for a statewide question in which the refused to be answered called, grand jury Such a has once been stated, together shall be with the excuse for distinction, hopefully served without and this refusal, given by person the interrogated; be the disingenuous repeated will not be in a similar thereupon court shall and the Report, result. See In the Matter of the Investi- whether the witness is bound to determine Jury gation Wyoming of the State Grand Em- not, be answer or and the shall singular paneled November 1977. The re- immediately informed of the decision.” Sec- once-only charge sult of that session was to 7-5-209, tion W.S.1977. against attorney gener- common-law offense "If that the witness is the court determines al, answer, which was then dismissed motion persists and he in his refus- bound to al, court, judge presentation to brought the district at indictment who he shall be proceed the trial court as a nonexistent offense. shall in the same manner as if the application by future Although be relevant to virtue under call-to-reform crite- change in of a the statute.6 ria the continuation of indictment function present of the its form is D. Distribution Powers probably unjustified, such legis- decision is From Wyoming per- Constitution Art. 2 lative; however, operational function spective, legislature authority has the and constitutional characteristics cannot Wyoming within Art. 9 of the Consti- § properly ignored and unattended by this continue, discontinue, modify tution to or perspective court. It is in the prior generic obligation jury. of the statutes, control, new statutes that now separation-of-powers With a determined status, recognized principles I have no difference from the com- constitutional law, parable majority opinion. I respectfully discussion dissent to the deci- sion of affirming this court in the convic- however, Concomitantly, Supreme tion of Joseph Hennigan, M. Jr.7 separate Court cannot abdicate its constitu power tional responsibility to assure presented The thesis to be in this dissent guarantees rights expressly citizen enu assessing supervisory responsibilities Wyoming merated in Art. 1 of the Constitu provide Court to a properly tion, implicit, empirical, explicit re operative system long as as legislatively sponsibilities appropriate proce rules of retained, is legislative, that more than justice dure for that criminal institution in problems judicial, spring- and answers are operation pow in accord with both inherent ing directly from Constitu- Constitution, ers of 5 of Wyoming Art. tion. statutory designation as found 5- §§ Lasky, prominent Moses California at- 5-2-115, 2-114 and White See W.S.1977. torney, analysis legality of folk- Fisher, (1984); Wyo., P.2d Mat applied subject lore as of California ter of Amendment of Court Rules Fees law, antitrust considered inconsistent as- Costs, (1987),Urbig 737 P.2d LXXXIX mythology” sertions which “are also kit, J., dissenting; comprehensive and the suggest mythical history is “created to evaluation of exercised responsibility of the legal support propositions reached without Court, Wyoming Supreme Gallivan, Su Indeed, regard history.” suggests preme Court Jurisdiction and he Wyo ming premise legal opinions that the Constitution: Justice v. Judicial is often Restraint, XX Land & Water selected after the conclusion L.Rev. 159 has been reached: 7-5-207, "(c) secrecy, 6. obligation secrecy may imposed We would note on § W.S. No 7-5-208(b) Replacement, upon any person except § in accordance with (c), W.S.1977, Replacement, which now this section and W.S. 7-5-207.” Section 7-5- provide: judge may "The district direct that an indict- approached suggested by 7. This task is not kept ment shall be secret until the defendant the trial court in its consideration of defendant’s bail, custody given is in or has and in that challenging grand jury, motions in this case event the clerk shall seal the indictment and wherein, anticipation argument of counsel person finding shall disclose the addressing directly Wyoming Supreme and Court, except necessary indictment when for the is- judge the trial stated: suance and execution of a warrant or sum- know, you recently “As I have returned mons.” Section 7-5-207. "(b) Reno, College (a) the National Judicial Except provided where in subsection section, among things, juror, attorney, interpreter, other I learned the definition ste- appellate judge, nographer, operator recording of an and it’s one who comes of a device or any typist testimony down from the hills after the who transcribes recorded battle is over occurring hope you’ll keep disclose and shoots the matters before the wounded. grand jury only you transcript when so that in directed the court mind when review the preliminarily judi- to or in connection with a in this case.” proceeding permitted by Conversely, actually cial or when what we must consider request upon court at the of the defendant are fundamental issues and re- constitutional showing particularized sponsibilities judicial right that a need exists for a officers whose Constitution, by motion to dismiss the indictment because of office is created and whose occurring grand jury. responsibilities by matters before the are controlled oath. 388

“ * * * may A primary Court create law based abandon the barrier between the history, accuser, falsehood and its law accused and the jury. illegitimacy age conflict, law whatever the In this infinitely its it is But cannot important birth. courts alter truth.” more that the traditional shield Lasky, reenforced; Folklore and Myth in Judicial that it not continue to Opinions Inspired degenerate shibboleth, into a mere laud- —Some Reflections by Texaco-Getty, protection 20 U.C.Davis ed as a in reality L.Rev. when it is (1987) 592 not.” reactivity present adju- His to the course of recognization aside, A that folklore dicatory responsibilities ampli- is further grand jury guardian liberty is no is seen fied conclusion: Antell, Jury, The Modern Grand Be- “ * * * exclaimed, nighted Supergovernment, Archimedes ‘Give me 51 A.B.A.J. lever, (Feb.1965), amplified a fulcrum on which to rest a and I and substantially by former cynic might will move the world.’ A United States Senator Abourezk Inquisition Revisited, in The paraphrase, premise ‘Give me from Barrister Judge Watts, begin, which I and of Lucile A. and will reach the re- Michigan Jury Grand sult I an Anachronism desire.’ Tool?, 1983 Det.C.L.Rev. 1477. judicial it “So be with decisions: Useful they premise do not start with a and then legislature directly recog- Colorado reasoning proceed a course of to their comprehensive nized reform by curative ac- opinion In conclusions. the formal instruction; including adequate tion forward, film indeed runs but before the complete record without off-the-record opinion was the film written was run interstices; subpoena rights; advisement of backward. The court starts the de- immunity; target-victim transactional pro- then, sired by running conclusion and tection; right testify; right to in-session backward, premises film discovers the counsel; support and actual record factual begin reasoning which to Bayless, in indictment. Jury Grand Re- And, compel will the conclusion. Mir- Experience, The Colorado 67 A.B. form: Visu, acle so it does!” Id. at 607. 1981). (May Similarly, A.J. 568 note the system recommendation of a tiered review worry just that here we purga- do that in indictment; in decision to seek an earlier Campbell tion of the County grand jury grand jury testimony; access to reduction process. panel; representation; size counsel directly As applied subject, to this a com- only particularized justified use of prehensive consideration of the actual func- Nachman, hearsay. Sullivan and It If tion analyzed in histori- Broke, Why Ain’t Don’t Fix It: the Grand Schwartz, cal detail in Demythologizing Jury’s Accusatory Function Should Not The Historic Role Jury, Grand Changed, 75 J.Crim.L. and Criminality (1972). American Crim.L.Rev. (1984), supported in reform earlier noting the abolition of the publication of the American Bar Associa- England, the author reflected: Janofsky, Proposes tion Association “Abolition of the jury is not the Jury Reforms, Grand 66 A.B.A.J. 810 answer. Even the most conservative 1980). (July among recognize us myth that ‘the Most generally literature would reflect government law, “ours is a not men” cherished, is infinitely infinitely and it “ ** * provisions hollow.’ Constitutional today, are is a total subject who, therefore captive prosecution evolution inter- if he is pretations candid, change swiftly will concede he can indict membership time, does anybody, the bench of the at any- for almost Facing thing, Court. grand jury.” Campbell, the likelihood of before a protections secondary narrowed at the Eliminate Jury, (trial) level, it would Criminality be foolish indeed to J.Crim.Law and

389 Comment, tive Improbability See also The criticism of incompeten unfairness and Inequity cy. Miller, Probable Cause—The Shall Grand Jury in Ordi Jury Grand Indictment Versus the Pre- nary Dispensed Criminal Cases be liminary Hearing in Illinois Crimi- Minnesota?, 6 (1924). in Minn.L.Rev. 615 281; Process, Note, nal 1981 S.I11.L.J. The “Cessante ratione legis et ipsa cessat Supervisory Exercise Powers to Dis- Lawyer, lex.”8 Should the Jury Grand Jury miss a Grand Indictment —A Basis System Abolished?, 15 Yale L.J. Misconduct, Curbing 45 Prosecutorial (1906). (1984). Ohio in St.L.J. As concluded A comprehensive import view similar Lewis, Jury, Trichter and The Grand Pu- in was found the reformist apologist of the Jury tative Grand Witnesses and investigatory grand jury by populist Right to Limited Counsel—A Historical ideology, as Younger, discussed Proposal, Overview and Modest 20 S.Tex. Jury III, Grand Under Attack (1979): L.J. J.Crim.Law and Criminology government based “Our is on the notion (1955). singular- is rights an primary individual’s are of present in ly application, denied surely importance, by safeguarding and that prosecutorial application so its here. right rights person, of one all Any independent idea an function is not persons protected. It are then has been supportable in the record made or the activ- conceded that what ities observed. be, is, supposed to and what actually it exceptionally An comprehensive consid- things. are different two Because of the Gershman, eration is found Bennett L. investigative role, its dominance of Prosecutorial Misconduct Ch. because of the absence of counsel and Prosecutorial Misconduct the Grand pretrial safeguards other pro- from such Jury, p. 2-1. ceedings, grand jury, at least in re- “ * * * discretionary power accord- spect rights witness, [T]he suspect of a prosecutor ed the justified cannot be aas anomaly is an of American jurispru- weapon táctical used merely dence.” preliminary hearing circumvent the definitively, Even more stated Shan- proceeding benefits that bestows on non, The Jury: Grand True Tribunal of prosecutorial the defendant. Unlimited People Agency Administrative manipulation power of that should no Prosecutor?, 2 N.M.L.Rev. longer Note, be tolerated.” The Prose- (1972), in referring to the monumental Duty Exculpatory cutor’s Present study Wayne of Dean and later Senator Indicting Evidence to an Jury, Morse: “ * * * 75 Mich.L.Rev. Those who [grand would reform might adopt well recently, More indictment] editorial consideration of sage their model the counsel of one experience directly expressed the Utah judge from Wisconsin who answered the Ogden editorial of Standard-Examin- questionnaire Morse er, 10, 1987, 1930 with these Friday, July at 14A: words: “The grand jury has been dismissed. It “ T possible can think of no use urgency becomes matter of grand jury where there is a consci- force, task many which includes scholar- prosecutor. entious prose- Where the minds, ly be reassembled with a mandate good is no cutor cannot imagine system to determine the future going where a to make Utah and recommend for major avenues better_ him reform. Judge Daniels, Elimination of the presid- re “Trial has Court Scott ceived broad ing judge District, consideration in discussion the 3rd made co- analysis generally gent inclusive of a repeti judicial references anachron- ceasing, 8. The reason of the law the law itself also ceases. future; consequently this court should expensive, too system is too

ism of a cumbersome, rights of protect the unmindful of its constitutional re- don’t not be whether although the author concludes ing newspapers, in N.C.L.Rev. significant manifest failures grand jury we can earlier, not be responsibility of the ently ers on the felony plaints. be done perative.” by virtue waiver in all or in all but as a nary crimes and statute, flicts mend cial recommends renew ed. itative suspension of the indictment task force Similar, seems “ * * Of the “ “Daniels * * * Watchdog getting to the bottom discussed ^[*] accused as antiquated prosecutor means of “lightly * is reference to aggressively their work spokesmen for the cases,” in the essence in dissent is the It is clear that system not to mention a although dated in the accusation Legislative reform reform, 290, 297 [T]he suggests ^[*] ambiguities of the subject. overcome member, in the direction of that the Watts, improved cast grand jury system is designed. Speaking and defeasances consist- of Expensive ^[*] extraordi- investigating nearly all current writ- corruption. inexorable movement ignore judiciary to answer the replace the institution should justice such as a (1959): away.” of indictment not system eliminat- capital or serious ^[*] something must nearly North Carolina of criminal com- function the task force confusion, con- justice as the author- courts, Daniels process costly Antique?, 37 Jury: requirement to eliminate supervisory be Id. ^[*] by-passing that with to recom- at 314. inquiry system system Sleep- either byor years ^[*] as a spe- im- ment eral Grand afforded involves a state laws which 351 U.S. (1956); and cases. (1974); U.S. have an due 2d 50. Constitution. cess do supra, 475 grand jury as U.Chi.L.Rev. contravention equality with not now be created cess administrative Federal of cannot not be grand jury procedural review sponsibility of Art. the Trial Constitution. Grand United B. I do not criminal-process justification as the L.Ed. 1118 recent United States judicial Recording 338, justify the “whatever Jury S.Ct. Costello v. United States, This and administrative impediments to an unwittingly excluded. United Justice, emplaced, indictment federal Judge 94 S.Ct. U.S. ignore construe and exist Proceedings: 406,100 responsibility. case, 761, 76 S.Ct. (1951); Note, The United States Juries, 39 Cal.L.Rev. 573 agencies such as the an “arm of the court.” 341 U.S. and Grand States v. and Undue information-charging pro- equal protection. court, and invokes state our in this state and should Wyoming constitutional it is to the abrasive 5, mandatory grand jury. 106 S.Ct. realistically affording out of whole cloth 613, 38 L.Ed.2d 561 L.Ed. States v. the federal §§ exercise of juries supervision should 2 and 479, States, apply our state Supreme Court Powers Calandra, 414 100 L.Ed. equivalent pro- Jury Records goes” responsibility, Influence, discusses Hoffman 71 S.Ct. remembered, by the trend Prosecutor, 3, Wyoming reh. denied Mechanik, protection Comment, Congress, judiciary, appellate 350 U.S. attitude Depart- L.Ed. Fed- limit 814, my con- issue and constitutional functional extensiveness, the discussion Despite its novel, new, or unnoticed. are not cern ap- majority opinion subject totally Divined from pears to be academic. FOR III. ISSUES PRESENTED prior experience prosecuting attorney’s APPELLATE REVIEW system grand juries, as federal court A. General reporter was appearances that a well as exten- together partial with a but present, case as a first- recognized that this It record, amplified by the cute- sive actual our standard impression decision writes reference, it would appear ness brief need exists for a motion to dismiss the “reported.” This total session was indictment occurring because matters scenario, lacking anything contribute before the jury.” Hennigan contrary notion and with out Perjury charges pursued cannot be un- anyway by confinement commuted sen- less, a record is reporting made. Selective tence, as to adds little whether not the might afford a usable trial if perju- defense prosecutor in this case called in the ry be charged prosecuted should and where indictments, reporter the first 67 after the reported. entire sessions have been there since transcribed record Finally, I question prosecu- would appeals. these that a tor discovery rights 18, can obviate of Rule danger The of terrible the court’s discus- (a)(1) W.R.Cr.P. found in subsection or suggest sion to that a future nonutiliza- rights whatever Jencks provided Act are in sessions, reporters at tion (b), failing subsection by provide to a re- contrary practice to universal federal and porter for the sessions. brings This court by implication contrary least to at rules and unnecessary problems procedure to and state, recently the enacted statute this process due in present its failure to exer- might 7-5-206, acceptable. be See W.S. § adjudicatory cise responsibility both Replacement. A record is re- supervision providing, constitutional in as quired testify refusal after to action generally exists properly upon ap- processes to taken trial for other in be court procedure, pearance. statutory provision, The criminal “If that a record will be grand appearing jury witness before a re- made transcription and retained for or au- fuses, shown,” just without cause will obvi- dio consideration. I would find that the ously impose a burden if is no there record prosecuting attorney, with or con- without invoking of earlier events refusal. court, currence of the district if he did reporter’s the participation exclude occa- Furthermore, 7-5-208, W.S.1977, 1987 § sionally deliberately or regularly, has un- Replacement, obviously contemplates a equal dertaken to avoid due record: protection consequently ques- into calls “(a) occurring Disclosure matters be- validity tion the session. In addition the fore grand jury, the other than its delib- counsel, defending appellate jurists any juror, may erations and the vote of might pro- the vicarious interest in attorney made to the district for use any in and in performance cess used construction of his duties. The attorney given prose- district law disclose so much grand proceeding jury’s cuting attorney. to law en- agencies forcement as he deems essential Discovery C. public to the interest and effective law Jury Secrecy Disclosure —Grand enforcement. Wyoming in at The sole statute force this “(b) Except provided (a) in subsection relating confidentiality grand time of the section, juror, this attorney, inter- Chap- session was derived from § preter, stenographer, operator of a re- XIV, Wyoming ter S.L.1876: cording any or typist device who tran- grand juror “No shall be to state allowed testimony may scribes recorded disclose testify in what he manner occurring grand matters before the grand or other vot- members pre- when so directed the court them, question ed on before or what or in liminarily judi- with a connection opinion expressed juror in proceeding by any cial permitted by or when request question.” court at relation to such 7-5- defendant Section showing particularized that a W.S.1977.9 XIV, Wyoming ap- first Ch. law found in Com- "Sec. 64. When foreman shall be piled Wyoming pointed, Laws of later found an oath or affirmation shall ad- enactment, pre-1987 provided following similar form in ministered to him in the words: regard secrecy: ‘You, inquest, as foreman this do discovery Wyoming rule in criminal afforded then effective on stat- cases, W.R.Cr.P., Discovery and Rule utes. comparable some of inspection, is Actually, appears investigat- it of Rule F.R.Cr.P. and some provisions available, ing apparently officer was identi- 26.2, provisions Act of Rule the Jencks fied, testify not called to but F.R.Cr.P., with differences. substantial Whatever, jury. anything, if resulting provisions notable Most investigation process did to re- isolate 16(c)(3), of Rule F.R.Cr.P.: the elimination open- ports discovery of Lauck from 612(i) 26(2) provided in “Except as arrangement professed by file later rule, (a)(1)(a) subdivision of this prosecuting attorney cannot be established discovery do not relate to the these rules particular this record. document jury.” beneficial defense available either Countervailing provisions regard open-file Act disclosure Jencks would of witness of a statement

production agent’s investigation undercover be the re- F.R.Cr.P., 26.2(f), the from Rule derived comparison port testimony. with trial in Rule of the term “statement” definition 18(c)(1), Rule The See W.R.Cr.P. relevant 18(c)(4), include W.R.Cr.P. not does hearsay issue the was whether recorded or however taken or “statement report transcription by the witness indictment thereof made was consistent with trial analysis of the grand jury.” to a See testimony. meaning is not Shaded un- Orfield, grand jury in The federal Federal testimony known statement or where the confu- Jury, 22 F.R.D. 343. This Grand searchlight knowledgeable of cross-exami- countervailing Wyoming rule as the sion of extinguished. ques- Capacity to nation Act constitutional concern is unex- Jencks validity. tion affords factor of unexplainable. plained and Cf. Jones v. activities, discovery following arrest, State, (1977); Wyo., 568 P.2d 837 DeLuna 5, 1985, arraignment plea on July en- State, Wyo., 501 Con- P.2d general-case management order try, a was sequently, application prece- the of federal July filed 1985 for each issued and of law, except to the status of dent represented by the persons the Public De- pur- due-process in the constitutional and (two attorneys), provid- fender’s office local views, minimally persuasive in view of requirement confidentiality ing: limited of the (or affirm) they solemnly you necessary; swear will dili- them when or he shall deem it person, gently inquire presentment attorney, any make but no such nor other true of during things given permitted present be be all such matters and as shall shall to be the views, charge, your giving you expression or come to their or otherwise knowledge touching present any service. votes on matter before them.” The their any Territory, your appearing your “Sec. 70. If counsel own and witness before a secret, you any keep shall to answer fellows shall unless called on refuse inter- justice rogatories during tion, his in a court of to make disclosures. You the course of examina- malice, person present through ha- shall the fact shall be communicated will, writing, question you any person or ill nor court in which the tred shall leave re- fear, affection, stated, through together unpresented to be shall be favor or fused answered thereof; refusal, given any hope excuse or for reward or but all with the for the truth, you person interrogated; your presentments present shall truth, thereupon nothing the whole truth but the shall determine whether wit- not, according your skill and under- ness is bound to answer or and the best of ” standing.’ jury immediately shall be informed of the obligation secrecy charged decision."

A similar jury grand juror members: 74. No or officer of other "Sec. prosecuting attorney, court shall an indictment "Sec. 67. disclose that has prosecuting attorney, against any person custody be al- found not in assistant shall been bail, issuing process, appear except times lowed at all before or under purpose giving for the information until the is filed and the case indictment dock- them, cognizable by relative matter eted.” statutory provi- giving upon any legal them advise matter These sections included the total it, they may secrecy applied require when and he sions for permitted interrogate witnesses before this case. 9, 12, 13, All Program University “1. under Rules er Aid at motions of Wyo- 16B(1), 18, 22, 16(b)(2), 17, [except ming, by Gallivan, Professor Gerald M. 23(d)], and 40 and demands under Rules indictments, then moved to dismiss the 16.2, 16.1 and shall be filed W.R.Cr.P. support, with extensive brief stating in so to be on and scheduled heard or part: Aug. 1985. “The defendants have no direct knowl- “2. This case will be tried to a edge of investigation the course of commencing day September, on 9th prosecution self-serving because of the 1985, at the hour of 9:00 o’clock a.m. secrecy. cloak of The minimal informa- (stacked #7) case in a District Court- tion available from court has files been room, Courthouse, County Campbell Gil- supplemented press releases and com- lette, Wyoming. Any mon talk. inaccuracies in the fol- “3. Pursuant to Rule W.R.Cr.P. a lowing are and result unintentional

pretrial conference will be held on the prosecution’s secrecy. choice of day August, 19th 1985 at the hour of * # * * * >ft P.M., (scheduled hour) 1:30 o’clock Jury proceedings Grand were undersigned.” the office “5. recorded, preventing thereby a re- Thereafter, August State sufficiency view of propriety. their for reciprocal discovery, filed a motion re- Jury Principle See ABA questing examination, inspection, photo- Compare recording requirements at copy, etc.: preliminary hearing.” List all “1. witnesses that the de- prosecuting attorney The responded in fendant intends to call at the trial in this part: matter. Copies any 6(e)(3)(c)

“2. of all and written state- “Rule Rules Federal of Criminal by by ments made to witnesses be called following: provides Procedure the jury records were ticed viduals Weerts motion related thereto chutzpah, Defender, through two attorneys, Steven ble the defendant the defendant to introduce at trial.” books, the duce at trial. all “4. Production for “3. the tangible objects defendant). anomaly in unjustified Any and Michael papers, since produce the scientific or medical jury proceedings the defendant evidence in the on that the defendant documents, (excluding behalf this the same denied, transcript Rosenthal, request, viewing expectancy, of 22 cannot indictees day, expects or other statements of possession and evidence and minutes indicted indi- while of had filed a the Public be reports, expects on grand tangi- unno- pro- and not of the court this occurring grand jury may “(c) closure shall be made such “If the “ * jury. tion nary request cial ing “(ii) “(i) ^[*] * * rule Disclosure matters time, when so directed proceedings; when court orders disclosure matters to or The State must of matters dismiss the indictment because before the of # and under grounds permitted by the occurring direct. connection with the otherwise ^[*] defendant, upon also made may occurring grand jury, be such # point before the by such exist a court at the prohibited conditions as out that the ^[*] manner, before the for a prelimi- the dis- show- # judi- mo- by at they 45 cases for which had then been above named defendants all have sub- 16, 1985, appointed. August Discovery On mitted State Notices State filed police a demand for notice of all alibi and State has submitted 16.1, required by form reports, testing reports, Rule W.R.Cr.P. and chemical evi- Defender, log-in reports, Rule F.R.Cr.P. The Public dence transcribed tele- through aided phone investiga- the assistance of the Defend- conversations and other information contained in the files of records had been certified and sent to

tive upon appeal. Court Documents the above named defendants.!10^ what record was available. At sidered mandates that the defendant’s Motion to Dismiss Indictments tioned matter and the indictments defendants for compliance with the “ * ‡ * * the lack of factual hearing, appellant’s Motions ‡ present be denied.” discovery ^[*] against Motion to Dismiss the above named discovery n the defendants knowledge counsel n above motion, State’s n con- cap- been filed to be included district court Record dated including exhibits, tory challenges, pleadings, designates ney, court records as the M. “COMES NOW course, Hennigan, by Michael be honored instructions and without because the entire February B. by prosecuting Rosenthal, limitation, these Defendant, Joseph through record transcript the clerk of the Designation records had judgment briefs, orders, attorney: his Attor- could peremp- and all appeal, hereby not, sentence. hearing-time After an extended discus- sion, denying order motion to dismiss Wyoming “Pursuant to Rule 2.01 of the Procedure, September Appellate filed 1985 also considered Rules of as amend- ed, rights discovery provided: request would like to that the tran- scription in the case of The State “8. There are sufficient methods under Wyoming Joseph M. Hennigan, Crim- Rules of Criminal Proce- prepared. inal Action No. regard discovery dure for to Grand pre-trial proceedings, Please include all Jury Indictments to avoid a denial of due dire, proceedings, including all trial voir process. statement, opening closing post-trial hearing preliminary “9. The lack of a sentencing hearing. motions and the should not have substantial effect on “Judge signed Judson has al- Order Further, discovery by the defendant. lowing appeal proceed in forma there is no constitutional or common law Therefore, pauperis. transcript will right preliminary hearing.” to a paid by County, pursuant to Sec- problem foregoing The with the is that tion 7-11-518 of the 1977 Stat- none of it is centered the fact actual utes. may that a record have been made and that questions you any “If have about the reporter actually recording a court was the composition record, please of this do not session, entire which fact was never made you very hesitate to contact me. Thank known to defendant in court session your much for assistance in this matter. or, otherwise. The first time this court as “Very truly yours, known, far as is the Public Defender be- “/s/ came aware of the any fact that there was “Michael B. Rosenthal transcription record of the ses- “Assistant Public Defender” by prosecuting sion as retained the attor- ney until after his election defeat and his Following by denial the district court of departure Wyoming, was a tele- quash the motion to indictments and dis- phone call. The clerk of the district court grand jury, miss the as the result of the 10, 1987, telephoned Friday, April on 29, 1985, re- hearing August on the Public vealing prosecut- Defender, for the first time that the behalf of named individu- ing attorney als, court, had retained this record with- proceeding next filed a in this filing appropriate appellate tribunal, out it with her until after other the for an 10. The furnished, accuracy singular might of this is the statement have rendered most of this discovery particularly issue of defense demand. Confirma- decision at best academic and more prosecutor original appeal. tion the whether the in- moot on If the issues here were to be vestigative report open simple language, they was in the file or not restated in fairness, would be un- inaccuracy perjury prosecu- could have a saved tremendous interest in ma- and dissent, and, jority opinion actually and this tion. staying proceedings. cept grand The issue was the order deliberations the jury of law ac- reiterated the memorandum This represent logical itself. would a application repeated companying step grand reform, forward and is complaint about the absence not inconsistent with necessity grand jury proceed- known record of maintaining grand jury secrecy. The ings: judge’s charge to the would proceedings not discoverability ment defendant the basic ability “Compounding light ^[*] charges. of the indictment before trial. The knowledge necessary ^[*] are well ^[*] non-reviewability undermines the perfunctory indict- problems go ^[*] process, to trial without secrecy, ^[*] that come to defend but ^[*] non- reli- grand jury proceedings introductory remarks states questioning of all witnesses. Some 31 states mittee ings Congress study (printed in 1976 Hear- recorded, deliberations, Record, permit already require Immigration, it, House according would the and an additional Judiciary and other recording of all Citizenship and to a testimony prosecutor’s than Library Subcom- votes and Law, Jury 714). proceedings

“The were not International at Grand recorded, thereby preventing a review proposal adopted “Since this sufficiency propriety. their See ABA in Rules of Federal Crimi- Jury Principle Compare ABA Grand nal Procedure have been amended to re- requirements recording prelim- at the recordings quire grand jury pro- all inary hearing. ceedings. step This is a major forward. bill’ have “In ^[*] present ^[*] been typed case, ^[*] at ^[*] the bottom words ^[*] ‘A true ^[*] quirement. “Major groups its Model Code of The American supported Pre-Arraignment Law Institute, this re- pre-prepared each indictment in absolute Procedure, urges that a record be made significance defiance of Statute. proceedings jury. of all before the judgment’ of this ‘rush increases The ABA Standards Jus- Criminal returning Jury the context of Grand tice on Prosecution Function 3- [§ indictments 232 counts in than 3 less 3.5(c) already policy provide ABA ]— — days. Taking into re- consideration the that, prosecutor’s ‘The communications quirement Section under 7-5-206 that no presentations attorney per- other nor unauthorized accompa- on the should be record.’ present during expression son be points nying commentary out that ‘since views or giving Juror’s proceedings generally are se- matter, their votes on one is left with parte, cret and ex particularly it is desir- picture comings goings of hurried prose- able that record be made in order to return indictments and 80 representa- cutor’s communications and per day, scarcely counts time to endorse jury.’ tions to The Prosecution Stan- ‘A true each.” bill’ on Attorneys dards the National District proceeding Attached 14.2(F) urge to the filed in this that ‘all Association also [§ ] court, copy was a the American Bar testimony jury grand should Jury Policy Association Grand Model Recording will aid recorded.’ (1982), Act included as rele- items of prosecution by insuring perjured — vance: testimony go does not unpunished. Re- # Principle cording “15. would also act restraint on would mandate as a stenographic recording prosecutor undue or or electronic not to exercise grand improper jury.”11 all jury grand matters before influence on the —ex- Jury again Principle provides 11. Bar American Association ad Grand No. 32 which dressed concerns in grand its national of all the release materials to the meeting delegates approved unless, house of when the after defendant indictment show the Criminal Justice Section recommendation compelling that the as- This court was advised as at point- trial. The court sumption in error and that at suppression of fact was ed hearings out are often part of the session least some important phase the most prosecu- of the partly reported and transcribed. had been tion and resemble full many trials in re- judge the trial Consequently, not spects. misled, also A but this court was misled. Discussion of discovery within the presented. serious ethical concern jury indictment scenario becomes some- brief, appellant In his related to the ab- thing pursued to be between obiter dictum assumptive sence of the record on basis hypothetical and academic or review on this grand jury session that no record of the retrospective evaluation, record. In existed: prosecutor intentionally, deliberately, and proceed- “5. the failure to record the effectively misled defense counsel and the ings and the vote as to each count.” might court as what record exist. As a court, consequence, the trial in its order of response, attorney general In failed to September 9, 1985, denied the motion to afford information to this (without affording dismiss exist, discovery), es- contrary and to the stated record did sentially which, aproving summary: as far as was known, did not though exist—even it did charges “Appellant’s battery of leveled exist, part. at least in some still unknown system against Wyo- right The result was no discovery actual ming simplest can be reduced to its although pro authorized forma terms, discovery he was not accorded court.12 preferred, i.e., through the format he preliminary hearing. making this as- 2, 1986, September On primary after Appellant ignores sault that he has election defeat early departure from right discovery, constitutional that a Wyoming, Murray, county prosecut- as the preliminary hearing is not intended to ing attorney, filed a motion to seal notes device, discovery as a serve and that he and records: discovery provid- was afforded the usual “COMES Wyoming by NOW State of ed procedure.” our rules of through undersigned Campbell ignore explicit We should not rules cur- County Prosecuting Attorney and which, case, rent authority in this were moves this honorable court for an order by suggestion hidden prosecutor sealing the notes and records of the that a record did not exist or could not be Campbell County Jury Grand which met deny obtained. I explicit Wy- avoidance of June, January, 1985 to oming statutory provision by rule and grounds “As for this motion the State of secrecy use of to hide the fact that a record Wyoming alleges and asserts that: importance could be obtained. The is re- proceedings Campbell “1. The cently reemphasized State, in Jones v. County Jury Grand and thus the notes (1983), Md. 464 A.2d 977 and Martinez v. during proceedings taken those are se-

State, 309 Md. 522 A.2d 950 cret and cannot be disclosed absent Maryland wherein the court said that once order from this court. In addition the prosecution witness has testified on di- Jury pursuant maintained records examination, rect a defendant is entitled to charging order of this court which inspect grand jury testimony that witness’ reflect business conducted purposes cross-examination without Jury. Grand showing need; here, further this suppression would include hearing, “2. The records and notes have been appropriateness where the for disclosure is into consolidated two boxes which have cause, ing good protec a court decides that a 12. These events are addressed in this dissent detail, appropriate. expectation tive some order is the reasoned 56 U.S.L.W. 2095. Wyoming juris- there will be no recurrence in prudence. pending disposition by been sealed period was not transcribed. In casual re- court. view, we find what was not included: no kind, leading “WHEREFORE State of exhibit of one to wonder moves this court to direct the Clerk of whether 94 indictments were obtained with- the District Court to take custody of the single out a (including samples exhibit records and pending seal them further substances), controlled and specifically no order of the court.” agents’ undercover investigative reports; no order, grand notes or records of the resulting September dated refer- seal; enced in the stated: motion to no transcript charging session; of the initial no record “The Wyoming’s State ‘Motionto Seal advice furnished to the session generally Notes and Records Campbell of the process; to the County Jury’ and no having Grand come before record of witness court, appearances hav[ing] the court reviewed before the district court motion, being otherwise advised record testimony grant immunity, except premises; Volume IIIA as to one witness. It takes “IT suspicion IS less than experienced practi- THEREFORE ORDERED AND this ADJUDGED that the Clerk of the tioner Dis- can afford to deny suggestion that custody trict Court shall take of the the absence of candor and exercise of fair- notes and Campbell records of the Coun- prosecutorial minded responsibility is less ty Jury presently which are in two than discernible in evaluation of this bob- boxes, sealed keep seal and same until tail record transcripts said to be all further order of the court.” records proceedings of the grand record, In review of jury. this after current dis- covery exist, that some records did this Simplistically, the majority apprehend to request

court addressed a counsel arrogant this display presumption reg- reference to the district court for consider- ularity. The lack of prosecu- candor of the ation, to which an order was issued: tor justification leaves circumstantial “The having above-entitled cases come question unsupported assumption. before the Court for purpose of con- We also make note of an apparent misun- sidering appellants’ motion supple- derstanding of the record where the court appeal ment the record on with the tran- says: scripts and other proceed- records of the inconsistency “There is also an in Henni- ings jury, and the Court gan’s position. He claims that the fail- finding good why reason the record ure to make a record of the should supplemented, not be so it is proceedings deprived has him of the transcripts “ORDERED that all right discovery in almost the same records of proceedings breath in which he claims that the indict- jury be transmitted to the wholly hearsay. ment was based Wyoming.” Court of Both could not be Certainly true. point in academic consideration of acceptance of assumption this discovery constitutional issue is in- indictment was hearsay based testi- formative about what was furnished: tran- mony makes proposition clear the that no script hearing of motion to dismiss Au- prejudice could respect attach with gust 1985; containing two files order report proceedings failure to as there convening, list, jury summons and re- would have been no statement available turns, returns, precipes, subpoenas, motion of a witness who testified at the trial.” records; and order to unseal Majority opinion at 370. grand jury testimony, volumes of involving persons interviews of two dozen We taken in know what we do from admissions period December, July between brief clearly stating of the State how the 1986; plus testimony notification factually initial 67 indictments were found- of 16 witnesses also taken in the same ed: grand jury grand jury

“The heard evidence received voting, discussion and in- through testimony supervising of of- cluding method of use of pre-typed agent, ficers of the undercover contain- indictments. ing information about contacts then, Logically, regurgitate to further buys of controlled substances from the the Gillette scenario in Hennigan, behalf of above named defendants. This is deter- who after all has secured a commutation of mined sufficient for the to sentence, his are called analyze we stan- probable find cause.” dards for the future event of recurrence Discovery invoking in a material sense pre-May the context of the perjury inquiry, comparison related to a law, the federal law from which provided of what was with announced, precedence is and then the trial, what was said at is the first obvious present Wyoming statutes and rules. Per- Assuming, rationally, Depu- concern. haps more so in any subject than ty Hamilton summarized and in- discussed law, availability of information for de- vestigative reports of Lauck to the provides fense counsel meaningful jury, finitely trial counsel would be inter- protection against abuse, misuse, and total- reports comparison ested those for system operation. itarianism testimony trial procedural as well as as- adoption pro- the rules of criminal pects involving given by instructions cedure, provided discovery court “legal court and provided by instruction” 18, W.R.Cr.P., Rule prosecutor. From similar to Rule F.R. what more than a inquiry, evidence, somewhat academic it Cr.P. and the is fruitful exclusion of rule of Murray actually during 1101(b)(2), wonder what did Rule F.R.Cr.P.13 "(a) statement; report investigation prosecution exami- nection with the or Defendant’s tests; case, nations and testi- by of the or of statements made state defendant’s defendant, mony. Upon motion of a (other prospective or witnesses state — witnesses may attorney order the for the state to defendant) governmental agents than the permit inspect copy the defendant to or except provided (c) in subdivision of this photograph any relevant: rule. "(c) “(1) Written or recorded statements or con- production Demands statements by copies fessions made the defendant or reports witnesses. thereof, possession, custody within the or con- "(1) After a witness called the state has state, trol of the the existence of which is examination, testified on direct shall, the court known, diligence or the exercise of due defendant, on motion of the order the known, may prosecuting become to the attor- (as produce any state to defined) statement hereinafter ney; possession of the witness in the “(2) reports physical Results of or men- subject the state which relates to matter as to tal examinations and of scientific tests or ex- which the witness has testified. If the entire periments partic- made in connection with the contents of such statement relate to the case, thereof, copies posses- ular or within the witness, subject testimony matter of the of the sion, state, custody or control of the the exist- directly the court shall order it to be delivered known, ence of which is or the exercise of to the defendant for his examination and use. known, diligence may due become to the "(2) If the state claims that statement prosecuting attorney; and produced ordered to be under this subdivision "(3) testimony Recorded of a defendant be- contains matter which does not relate to the grand jury. fore a "(b) witness, subject testimony matter of the of the books, documents, papers, tangible Other the court shall order the state to deliver such objects places. Upon or motion of a defend- — inspection statement for the of the court in prosecuting ant the court order the attor- Upon delivery camera. such the court shall ney permit inspect the defendant portions excise the of such statement which books, copy uments, photograph papers, or doc- subject do not relate to the matter of the tangible objects, buildings places, or testimony of the witness. With such material thereof, copies portions or which are with- excised, delivery the court shall then direct possession, custody in the state, or control of the such statement to the upon showing defendant for his use. materiality If, pursuant defense, procedure, any portion preparation to such of his and that the re- quest such Except statement is withheld from defend- provided reasonable. (a)(2) objects ant and the subdivision this rule defendant to such with- does not authorize discovery holding, inspection reports, adju- and the memo- trial continued defendant, governmental guilt randa or other internal doc- dication by governmental agents uments made pre- in con- entire text of such shall statement statute, increasing range in the in By included 1876 territori- been favor LXI, Compiled Wyo- as Ch. Laws permissible discovery.” al code Federal Crimi- 1-27-125, found in ming and now Rules, Notes, supra, p. § nal Code and W.S.1977, corpus de- the use of habeas is newly provides, enacted statute now fined: secrecy discovery: with reference to and corpus permissible to “Habeas “(a) impaneled After of the action question the correctness sworn, judge the district charge shall finding a of indict- bill jurors as to their duties particularly ment, petit jury in the trial of a or a obligation of secrecy to the their judge or act- cause nor of a court when give impose, oaths them any infor- ing jurisdiction and in a within their law- proper mation the court deems concern- ful manner.” ing any offenses known to the court and provision rule for Since likely to come jury.” before the discovery rights similar to the fed accords 7-5-202, W.S.1977, Section Replace- process, apply the comment of eral would ment. in Federal extensive authorities found “(a) occurring Disclosure of matters be- Rules, (West p. 70 Criminal Code and grand jury, fore the other than its delib- ed.), journal referenced to a dozen law articles and extensive case law. State v. any erations and the juror, may vote of Moffa,, attorney be made to the district use 36 N.J. 176 A.2d 1 performance accurately: of his duties. The Summarized attorney may district much disclose so pretrial discovery “The extent to which grand jury’s proceeding to law en- permitted should be in criminal cases is a agencies forcement as he deems essential complex and controversial issue. problems public interest and explored have been detail effective law literature, legal recent most of which has enforcement.

justice require the trial tion, rule, for the examination of such statement as it proved by delivered to the defendant trial. statement or such may hereof to deliver to the defendant order of the court under subdivision defendant in his recess trial shall record the served which is a cretion shall determine that the interests of ness sions agent or other oral statement made ment. neously "(3) "(a) "(4) The "(b) determining may the court in its upon application direct, (1) of the state and recorded A written statement made If the state elects not to proceedings A by witness called with the recording judge. stenographic, determine to be signed proceed substantially term ‘statement’ as used in subdivi- him; testimony the court shall strike from the (2) appellate the correctness of that a mistrial be declared. preparation or otherwise Whenever portion making unless the court in its dis- or a discretion, upon applica- (3) of the witness and the mechanical, verbatim recital transcription reasonably required of this rule thereof as the court said witness to an trial for such time of such oral state- any pursuant for its use in the defendant, comply adopted state, statement contempora- (1) electrical ruling said wit- purpose relating with an thereof, by means: to this or such may said ap- (2) W.R.E., just under the circumstances.” Rule W.R. court of the existence the court that a with this rule or with an order issued additional material ordered which is prior an comply. If, subsequent proceedings it is notify al. "(h) continuance or ant to this ducing materials not party Cr.P. Finally, or it those with "(b) spection grand juries; "(2) order If at Rules Continuing duty the court ^{[******] [******]} the other following — in evidence the material not under the or permit discovery any issued enter such inapplicable. respect rule, during adoption * * time previously prohibit provided: Jury. Proceedings party situations: party pursuant brought the court subject during rule, previously requested trial, other order — privileges to —The or his has failed to of Rule disclose; to the attention of he shall disclosed, the course of the to this additional materi- party or compliance may discovery rules other than party attorney inspection do not as it from intro- order such 1101(b)(2), failure rule, disclosed, discovers promptly grant comply deems pursu- or the or in- apply or to “(b) Except provided (a) cy abolished, subsection has been and the common section, juror, of this attorney, inter- expression of the rule now is that disclo- preter, stenographer, operator of re- may required sure be ‘whenever it be- cording device or typist who tran- necessary comes justice.’ the course of testimony may scribes recorded disclose 6(e) Rule of the Federal Rules of Crimi- occurring matters before the nal Procedure is statutory basis for so pre- when directed the court disclosure in the federal courts and it liminarily to or in judi- connection with a provides inspection for of proceeding cial permitted by or when minutes both prosecution and de- request court at the of the defendant fense within the discretion of the court. showing particularized that a provisions Similar are in through- effect need exists for a motion to dismiss the Comment, out most of the states.” occurring indictment because of matters Impact Jencks v. United States and of grand jury. before the Subsequent Legislation on Secrecy “(c) obligation secrecy may No of be im- Minutes, Jury Grand 27 Fordham of posed upon any person except in accord- 244, (1958). L.Rev. 245 ance with this section and W.S. 7-5-207.” Comment, Disclosure Federal Grand 7-5-208, W.S.1977, of Section Replace- Material, Jury 68 J.Crim.Law & Criminolo- ment. (1977); gy Comment, Discovery By a Consequently, legislature adopted Criminal His Own Grand- Defendant of particularized need support criteria for Jury Testimony, 68 Colum.L.Rev. 311 of a motion to dismiss indictment be- (1968); Note, Lifting the Bridled Veil: cause of occurring “matters before the Disclosure Jury Grand Proceedings of grand jury.” 6(e) Under Rule the Federal Rules of of problematic As with all other aspects of Procedure, Criminal 3 Am.J. of Trial Ad- grand jury operation, the issue of availabili- (1980); vocacy Seltzer, Pre-trial Dis- ty of usually information has been con- covery Jury Grand Testimony in Crim- of sidered in the secrecy, context of disclosure Cases, (1962). inal 66 Dick.L.Rev. 379 discovery. and In addition to the direct issue of dis- remain, therefore, “There principle, disclosure, covery and general subject which,

no cases in after jury’s secrecy of has frequent, occasioned end, functions are critical privilege at an comprehensive review. See 2 witnesses to have their Beale & testimony blan- Bryson, Jury Practice; in secrecy keted Grand Law & should deemed Com- is, ment, effect, continue. Secrecy This Jury the law as it Grand Proceed- is generally accepted today, ings: Proposal but it A is not For a New Federal Rule usually stated so sweepingly. By 6(e), stat- Criminal Procedure 38 Fordham ute or decision the rule of absolute (1969); Note, secre- L.Rev. 307 A Reexamination 14. To the "* * * extent that United especially States important [I]t that the provide persuasion judge, Court applica- decisions defense the for and the should have Constitution, may the assurance that the doors that tion to the lead to we need not adversary truth have been unlocked. In our consider the somewhat dissimilar authorities re- innocence, system determining guilt it lating grand jury to release of records for civil rarely justifiable prosecution for the to have others, processes, including, among Douglas Oil exclusive access to a storehouse of relevant Northwest, Stops Co. v. Petrol of California States, fact.” Dennis v. United 384 U.S. (1979). U.S. 99 S.Ct. 60 L.Ed.2d 156 (1966). 86 S.Ct. 16 L.Ed.2d 973 completely identify discovery cannot civil cases The Court then reminded us: due-process equal-pro- with constitutional adversary system, “In enough our it is tection concerns extant in records in judges judge. The determination of what Otherwise, prosecution. criminal again we sub- properly be useful to the defense can principle primary scribe to an immutable effectively only by be made an advocate.” Id. significance justifies that the end the means. In at 875 S.Ct. [86 at 1851]. exceptional analysis on trial reversal for de- Illinois, 264, 269, Napue See likewise 360 U.S. nial of testimony, the United States involving 79 S.Ct. 3 L.Ed.2d 1217 Supreme Court testimony, said: "false to obtain a tainted conviction.”

4Q1 Jury widely Secrecy opera- Rule Grand criticized for its secret Courts, parte 34 N.Y.U. tion and its ex nature. in the Federal Minutes [Citations.]’ (1959); Briggs, Kennedy L.Rev. grand jury system precluded “The Aspects Legal the Cali- Historical person partic- accused from effective Jury System, Grand Cal.L.Rev. ipation processes precluded its fornia (1955); Note, Jury judicial evidentiary Minutes review the basis Secrecy Litiga- in Federal and the Rule grand jury might indictment that the tion, 55 Nw.U.L.Rev. 482 one of return.” significant early the more reviews on the support Further for a modernized or en- Sherry made subject, Professor these com- lightened view is approval by found in remarks: prehensive Delegates, American Bar House of Grand * * “ * light experience, In the of this Jury Principle (1987), “pro- No. 32 it and since is self-evident that disclosure grand for the release of all jury vides mate- compatible just, is far more with a fair rials to the defendant after indictment un- equitable justice administration of less, upon showing good cause, of a court policy secrecy, plain of it seems than the protective appropri- decides that a order is there is no rational for the basis ate.” 56 at U.S.L.W. opinion complete grand jury secrecy Hearsay D. indispensable. is as some courts Liberal my It is not the burden of dissent to permitting inspection in may be hearsay exclude all from indictment and purpose impeachment minutes preliminary-hearing processes, although le need,’ ‘particularized or in the case of galistic justification requirement for a prevailing, secrecy policy traditional is real, knowledgeable evidence can be found long an anachronism that has outlived logic precedent. In due-process Comment, necessity.” real terms, justify we should not second-hand Jury Minutes: The Unreasonable Rule thing, namely when the evidence real (1962). Secrecy, 48 Va.L.Rev. witness, actual is available. I do not ac State, See Maldonado v. 93 N.M. Wyoming justice cord to cases such (1979); Comment, P.2d 363 Criminal Higgins, State v. 201 Conn. 518 A.2d Jury Procedure —Grand —Inadmissible (before (1986) that state constitutional Evidence, Process, Due 11 N.M.L.Rev. 451 ly grand process), jury abandoned the Mechanik, adopting United States v. su

A demonstration the trend and delin- readily pra, by rote. Better evidence when eation of the reasons is found in Connecti- justify available but not should indict used cut, where recent constitutional amend- ment dismissal. indicting ment the function of the practice “The in the instant case—of —as replaced by information in seri- relying hearsay rather than cases, ous-crime as described the Con- pernicious testimony eye-witnesses necticut Court Rollin- State v. First, it for two reasons. habituates son, 203 Conn. 526 A.2d grand jury rely upon ‘evidence’which (1987): smooth, appears integrated well and con- * * * changes represent respects. “The Particularly collec- sistent all be- judgment legislature

tive and of neither nor de- cause cross-examinations indicting grand them, juries the voters that did fense are available to witnesses provide adequate safeguards grand jurors not do not hear cases with the having rough edges accused of seri- those committed that result from the often halting, incomplete ous crimes. As we noted in v. inconsistent and testi- State Mitchell, 323, 326-27, mony 200 Conn. 512 A.2d of honest of events. observers Thus, ‘[although originally distinguish they con- are unable to be- shielding protect prosecutions strong ceived as a device to tween which are prosecutions relatively All individuals from unfounded those which are weak. grand jury system presented equally came to cases are in an homo- [citation] unacceptable, A so tion genized form. condi- but the use some adequately hearsay serve its is not a basis tioned unable for successful attack screening agency. It can- on function as a indictment if the live refusing to judgment reasonably not exercise its witness is available testi- where, technically, Directly, Lauck, fy. in weak cases indict means that completely been made prima supervisor, facie case not the uninformed is, moreover, unlikely provided It demand should have out. actual rather than even additional evidence. second- or third-hand hearsay testimo- ny apparently presented orig- as was practice second reason the is unde “The inal indictments these cases. This rule prevents defendant sirable is that it general practice accords with of mod- utilizing grand testimony states, inapposite em-view and is not cross-examining witnesses who will testi practice by federal court manual direction fy the trial. Since no witness the at Department Justice utilized. now government intends is called be to use jury, fore it avails a defendant addressing indictments on hear- based testimony little have the say, New York courts have said: “ * * * at the trial.” to him furnished public a matter of policy, the [A]s Arcuri, States F.Supp. courts, in an effort to deter baseless (2d (E.D.N.Y.), aff’d 405 F.2d Cir. 691 prosecutions, have established crimi- 913, 1968), 89 cert. denied 395 U.S. S.Ct. prosecutions underpinned by nal (1969). 23 L.Ed.2d 227 sanctity subject of an oath which would Probably complaint the most controversial and criti- penalty perjury if * * People penumbras grand jury willfully cized of the denom- v. it is false *.” Bishop, inquiries hearsay is inated the use of evi- 64 Misc.2d 314 N.Y.S.2d juris- dence. Standards utilized in various 420 complete acceptance move from dictions hearsay necessarily Unabashed does not existent here to the further removed re- rationale, meet this New York In test. like form status where normal rules of trial Parks, concurring opinion in a in State v. admissibility applied. Addressing are the Alaska, 642, 645-646, 437 P.2d 37 A.L.R.3d reason, subject consonance of a rule of if (1968), Rabinowitz, 605 Justice one of the grand jury system justifies the total reten- time, premier justices of current discerned: tion, clearly the moderate view is indicated v. Shelton State [Alaska, “In 368 P.2d by justice, process, due and rational use.15 (1962) 818-819 this court said ] The rule followed a generally principle purposes grand is juries, one of necessity hearsay prosecu- I, that a total provided for article 8 of the section court, ignore event, not every knowledge, 15. I do either of this the rule not real 7(b), W.R.Cr.P., relating recitation, Rule hearsay or our case law always be second-hand should de- pre-trial hearing, evidence in Wilson v. sired, provided, required, reasonably if State, Wyo., (1982), 655 P.2d 1246 as- Several many judges Too available. and academicians pects justifying clear differentiation should be spent trying too few hours lawsuits to (1) 7(b) persuasive discerned. Rule is within adequately general invalidity understand the impartial examining magis- the discretion hearsay just hearsay, testimony most but —not application preliminary hearing trate in to the untempered cross-examination. solely by prosecuting and not choice of the "* * * oft-quoted We are mindful of the official; (2) responsibility the moral as an im- Judge ‘[slave words of Learned Hand that partial magistrate examiner vested in the af- torture, it would a be hard to find more aptitude fords a dissimilar prosecutorial from that existent in tyranny power tool of effective than the zeal; (3) experience if affords in- parte examina unlimited unchecked ex decision, appropriate basis tellectual magistrate employs Remington, States v. F.2d tion.’ United 567, 208 discretionary ability dissenting), (2d J., Cir.1953) Hand, (L. similarly grand layperson jurors available for denied, rt. 347 U.S. S.Ct. practical untrained in evidence ce 98 L.Ed. rules of (1954)." Kilpa v. Carter, States legal persuasion, Wyo., cf. State v. trick, supra, J., (4) F.2d at 1464-1465. Urbigkit, dissenting; P.2d 1217 right to cross-examine the tendered witness is afforded. constitution, carry Alaska is to out the there should be a reliable determination protection of inno- vital function of probability guilt. made as to the of his against oppression unjust prose- cent guaranteed This can best be when wit- prepared is cution. Unless this court against appear per- nesses the accused change its evaluation of the role that grand son so juries actually play, or should panel can their view demeanor and sub- society, rejection play, our of the Su- ject them to cross-examination. In our preme Court of the United States’ con- evidence, hearsay unchecked, view amendment, struction of the fifth an- protective would erode the value of the States, nounced Costello v. United is grand jury nothing so as make it more indicated. than an administrative arm of the district “If the institution attorney’s office. If the jury in- anachronism, viewed as an then Costello dictment is to fulfill its intended Supreme appeal, has for there the Court functions, this must not be allowed to proper held that an indictment on its face happen.” by legally returned constituted and un- struggle courts, of the federal com- require biased sufficient to mencing recognition phi- with some on the trial merits. The losophy Judge Learned Hand in United emphasized also Court Costello Garsson, (S.D.N.Y. States P. 646 delays likelihood interminable 1923), Costello, came to United States v. practice abuses of criminal which would (2d Cir.1955), 221 F.2d reargument de- subject result if indictments were held (2d Cir.1956), nied 232 F.2d 958 in which grounds inadequacy, attack on Judge recognized even Hand that cases incompetency, of the evidence which was should exist where presented grand jury. Admitted- “ ‘ * * * finding of a ly, these are factors which must be con- upon utterly based such insufficient evi- in shaping any system sidered dence, palpably incompetent or such evi- justice. administration of criminal dence as to indicate that the indictment system Yet it seems to me that our prejudice, resulted or was found procedures criminal laws must include disregard rights wilful of the ac- whereby cases in there which is an ab- ” 679, quoting cused.’ Id. at from Unit- sence of reliable evidence can be detected 343, Farrington, ed States v. 5 F. 348 stage. prior filtered out to the trial (D.C.N.Y.1881). Before an individual suffers of the apt serious inconveniences which are Assessing symptom as a cure for the upon felony disease, ensue the return of a indict- the United States Court (arrest, humiliation, ment job, loss of States, supra, v. birthed Costello United etc.), there should be a reliable determi- the rule that even if all the evidence nation made probability as to the of his presented grand jury hearsay, to the was guilt.” quash no basis to the indictment existed. assumptions Neither the historical mani- accord, Alaska, Gieffels, See State v. 554 opinion fested by perspicacity nor the (1976), P.2d subsequently 465 retried recognize problems future as reflected State, Alaska, and affirmed in Gieffels ap- later cases was evidenced. It was (1979): 590 P.2d 55 parent that Justice Burton concurrence “In restricting type testimony clearly had more understood: be introduced to the “ * * * agree Judge Learned jury, it not our intention to turn this ‘if appeared Hand that it that no evi- stage proceedings of the into mini-trial. However, rationally dence limiting had been offered that the rationale for hear- facts, evident; say testimony established the the indictment appears grave ought quashed; accused suffers because then the apt inconveniences which are to ensue would have in substance abdi- indictment, felony Costello,'] the return of a cated.’ States v. [United Accordingly, guarantee person I concur in Amendment’s F.2d that ‘No judgment, capital, but do so for the reasons shall be held to answer for a crime, otherwise infamous opinion of the Court of unless on a stated presentment or indictment of a Appeals subject to the limitations Notes, Jury.’ compromises What this indict- expressed. there See also ment is not that Ill; jury heard Yale L.J. 390.” Harv.L.Rev. only hearsay testimony Costello, States, 350 U.S. at Costello v. United that, [supra,] in sharp but Burton, J., contrast 409], concur- S.Ct. at [76 case, way knowing it had no ring. testimony which was all it was hear- have reflected: Editorial writers ing hearsay. “ * * Despite apol- * the lame negligible may be the However ogy Ward, by Agent offered at trial his impact practice, of the Costello rule in it grand jury, statements to the recorded undoubtedly provide opportunity will transcript opinion, annexed to this validity for renewed discussion were the words of a man who had seen Note, grand jury today.” Indict- spoke or heard whereof he and were Upheld Though ment Even Founded such; plainly meant to be taken as Evidence, Solely Hearsay 104 U.Pa. Government anything does not contend L.Rev. was said to the before Ward pathway persuasion Second was sworn that would apprised it of * * * progression Circuit is found in seven suc knowledge. his limited ceeding Judge Friendly, cases. in United “If, peddling cases, in these narcotics Borelli, (2d States v. 336 F.2d pressing Government insists on Costello Cir.1964), cert. denied 379 U.S. S.Ct. point offering grand jury only 13 L.Ed.2d 555 said: hearsay testimony surveilling agent “If had testified before the [the witness] apparent when there is no reason save a grand jury, the defendants would have transparently unworthy pro- one for not judge inspect been entitled to have the ducing agent with firsthand knowl- any parts the minutes and turn over use- edge, jurors it must make clear to the ful for cross-examination. [Citations.] shoddy they getting merchandise are so allowed, ought The Government not be they something they can seek better by having principal speak its witness wish; pressing prosecutor thus through the voice of an- particularly more reliable im- evidence— other, deprive a defendant of this portant prosecutions in these narcotics right impeach by contradiction. It is problem there is where often a of the true that inconsistencies found in the reliability agent’s of an identification—is grand jury testimony surrogate of such a grand jury’s the historic function.” susceptible are less of effective use than Next addressed United States v. testified; if the witness himself had Umans, 725, (2d Cir.1966), 368 F.2d when the witness is confronted with 80, 253,19 cert. dismissed 389 U.S. 88 S.Ct. appears inconsistency, what to be an he (1967), L.Ed.2d 255 the standard was estab may deny having contradictory the made lished: agent statement and counsel’s condemning proce- “While we are the only agent recourse would be to call the grand jury, dure used here before the we prove and endeavor to have him the con- think it not amiss for us to state that trary.” hearsay presenta- excessive use of In Payton, United States v. 363 F.2d government grand juries tion of cases to (2d Cir.), 999-1000 cert. denied 385 U.S. destroy tends to the function of historical (1966), 87 S.Ct. 17 L.Ed.2d 453 grand juries assessing the likelihood Judge Feinberg majority, wrote the prosecutorial and tends to de- success dissent, Judge Friendly, again stated: stroy protection from unwarranted sup- “The course followed prosecutions grand juries the Government are mockery posed Hearsay this case makes a to the innocent. Fifth to afford Cir.1972), (2d only direct a conviction dismissed be used when should evidence hearsay or when it testimony usage is unavailable in indictment. virtue demonstrably to summon spoke inconvenient Judge Friendly for the court: * * “ * testify to facts able witnesses When framers of the Bill of knowledge.” personal Rights directed the Fifth Amendment Beltram, 388 F.2d 449 v. States United person ‘No shall held to answer v. Colon (2d Cir.), nom. cert. denied sub capital, for a otherwise infamous States, 390 U.S. 88 S.Ct. United crime, presentment on a unless or indict- (1968), majority denied 20 L.Ed.2d Jury,’ they ment of a Grand were not grand jury, and mislead the attempt engaging in a mere verbal exercise. Judge Medina dissented: avoiding importance undue reliance dispute the fact But do not “I dissent. hearsay upon before a is no obstacle that there constitutional heightened by this view that an circuit’s presentment of a case to the finding proba- indictment constitutes a hearsay evidence. by means of pre- and avoids ble cause the need for a v. Costello is foreclosed Such view 5(c). hearing liminary under F.R.Cr.P. States, [supra]. My point has a United

and often does refuse to double aspect. As grand jury indict, it seems may ¤ ^{[*] [*] [*] [*] [*]} just it is and fair to only to me that opinions many “The in which we have prosecutor at least to warn require despite affirmed convictions the Govern- grand jury that most or all of hearsay needless be- ment’s reliance on presented are second hand. Of proofs at how loathe we fore show greater significance, my opinion, even open up have been to a new road for practice, especially in narcotics is the evil attacking grounds un- convictions on cases, using related to the merits. We have been witness, only peripheral who recites willing ample, many to allow doubtless more or less fashion what oth- narrative ample, too in the needless think latitude seen, agents narcotics heard er hearsay, subject provi- use of two done.” 388 F.2d at 451. prosecutor does not deceive sos—that States arising Next as an issue in grand jurors shoddy as to ‘the merchan- Catino, (2d Cir.1968), v. F.2d cert. they getting they are can seek dise so * * 1598, 22 denied 394 U.S. 89 S.Ct. *. something better if the wish’ * * * adhered to L.Ed.2d cannot, proper respect for We standard, but because Umans defined that duties, discharge our our- content week being the indictment less than a admonition; yet selves with another case, unduly it would harsh after that to dismiss the reversal with instructions impose power to supervisory exercise of help as- translate the indictment failing government sanctions Attorneys surances United States compliance. Judge Friendly, in to achieve performance by as- their into consistent United States writing opinion in sistants.” Arcuri, Cir.1968), (2d 691 cert. 405 F.2d procedural found that rules It was 89 23 L.Ed. denied 395 U.S. S.Ct. failed, only Department and Justice (1969), accepted the court 2d 227 trial of uncon- could remove the evil reversal occurring short after analysis of the time usage. hearsay trolled cases, found the Umans and Beltram and requirement on the absolute for dismissal use of dissimilar substance to the Not hearsay use basis of for indictment. uninforming hearsay is the sub- factually derived from ject prosecutorial of abuse survived, Morality finally and fairness testimony. false perjured knowingly misguided despite posture earlier Basurto, v. 497 F.2d 781 in United States pontificated in decision Court Phillips v. Cir.1974); United States (9th finding enough enough Co., (N.D.Okla. 435 610 Estepa, 471 1136-1137 Petroleum F.Supp. States v. F.2d 406

1977); Reese, 91 gentleman’ N.M. 570 P.2d Portuguese State that ‘a had told (1977); Note, Quashing Federal In- Raleigh him that intended to murder the Upon Incompetent dictments Returned King. possibili- One think would that the Evidence, (1948); Ill Com- Harv.L.Rev. ty that the testimony fisherman’s would ment, Unnecessary The Prosecutor’s Use today admissible had safely put been Hearsay Evidence the Grand Yet, to rest. if a federal judge believed of Before U.Wash.L.Q. (1983); Com- Jury, Portuguese gentleman’s that the state- ment, Incompetent Exclusion Evidence ment was made under sug- conditions of Jury Proceedings, From Federal Grand gesting trustworthiness, its Sir Walter (1963); Westling, L.J. 590 Yale Use might fare today no better than he did of Oregon Hearsay Testimony under Elizabeth.” Id. at 883. Before Juries, Ór.L.Rev. Uncontrolled unnecessary hearsay processes As sometimes tend factually for charging may a basis actually rationalization, bury reason in ritual and it be as discerned by Justice Burton: to be “ ”16 fairly practical observed that the basis ‘no evidence.’ Costello v. United hearsay ignored. for exclusion It sim- States, supra, 350 U.S. at 76 S.Ct. at ply error in re- unreliable. The factor Paraphrased 409. to the wrong, “Not peated exponentially conversation is ex- rule, fix don’t it” reasonably we should say, literature, Bergman, tended. current “If it any good, isn’t don’t use it.” Ambiguity: Hearsay Danger The Hidden E. Due Process About, Nobody Almost Talks 75 Ken.L.J. conduct of the initial (1987), essays thought-provoking only session accords most interest in con- ambiguity. function of We need eval- jecture since undocumented available topics recog- uate his thesis and included Critically, due-process record.17 we have a nize that as in the saga Campbell Coun- question where equivalently valid re- ty, hearsay any pur- unbridled use of for sult would have been achieved if either the pose defeats the jus- basic interest of the investigating undercover officer or the system validity. tice of search for truth and prosecuting attorney simplistically pro- In analyzing ambiguity ambiguity, cedurally, ceremony, without additional had language author reminds us signed the indictments endorsement of abstraction, polarity, features unconven- bill,” in counterpoint “a true execu- meanings, function, tional form versus tion pass- foreman. It is chronology, filling, conclusion, all of ing strange that all efforts undertaken to directly challenge validity the factual produced date have hearsay, testimony neither a disregard faulty memo- transcript sheriff, ry, deputy copies perception, diminished insincerity. In rejecting reports usage conjunc- whatever were used in hearsay uncontrolled for hearing or for preliminary testimony indictment tion the oral the super- matter, abjure sheriff, vising deputy Hamilton, reexecution Sir Steve Raleigh: Walter delivery informational membership. A “A minimum ago, Raleigh few centuries Sir effort afford Walter compliance require was executed in with due the Tower of London would being agent, after undercover convicted treason. as well as his summarization, conviction rested in part hearsay reports on the should have testimony fisherman, of a presented who testified been in order to afford evidence Court, 16. first ality.’" Costello, In the Costello case in Circuit United States v. 221 F.2d at Judge recognized, Learned quoting Hand Evidence, Morgan Professor in Model Code of A.L.I., p. paraphrasing 223: substantially, 17. Also the termi- is, nology closing of a line of "‘The fact hearsay numbers contem- governing then that the law jokes to-day conglomeration porary applies: "67 is a individual indictments of incon- sistencies, counts, developed conflicting days, a of about 237 as result of achieved in three record, qualifications good theories. Refinements and not be a but d... it is a exceptions only within the average." add to its irration- mis- misguided, individual from the actually inform the to the as would first-hand promiscuous prosecutorial process taken or grand jury. attorney. empowered prosecuting is in this fair from decided It is what depriva- say that contention of the case to clearly The distinction must be under- factually process due was answered tion of the which consti- stood between in the process afforded no due was that charge, a conduit to initiate a criminal tutes denied, methodology; none was indictment function, constituting only an indictment provided. With none was offered since investigatory grand jury, the and established, I then consider that status informed, advised, and serve does constitutionally re- this accords whether intrinsically We not travel decisional. need the rights. I will concur quired regression in to debate moralistic backward that the in its essential conclusion advantage due-process which incubated the grand jury is process charging where prosecutorial nurtured the disuse and that illusory so it becomes used can grand jury in favor of the information- prose- of the will of the contrived excursion hearing. Wyoming in essence preliminary accomplish- attorney, a clerical cuting normally since statehood has utilized ment. recognizing in reason for information from protection of the individual pre-trial effect, seems to conclude this court conflagration by prosecutorial process. only be protection need that constitutional Guild, Representa- itself, Lawyers National See provided in the and the distinc- trial Before Grand tion of Witnesses Federal individual’s liber- of the erosion of the tion Juries, Jury Ch. due-process rights does Abuse enjoy interest to ty Process, Miscon- and Ch. Prosecutorial accusatory or inves- not arise at earlier stages. distinction cannot be duct tigatory ter- from Constitution discerned required that ten Note also is less than

minology that in indictment complaints are ever percent of all criminal validating crimi- delivery would eschew a Consequently, trial. considered afford characteristic instead nal-charge be ac- due which would ever rubber-stamp by minis- prosecutorial fiat at issue percent of the time is corded terial result: Within its territo- plea is entered. life, person deprived lib- “No shall be prosecutorial function imperative, the rial process of erty property without due over more discretional aura exhibits 1, 6, Wyoming Article Constitu- law.” § than life, liberty, of individuals and conduct tion. other character officialdom exists Rational society. the democratic activity, in historical dif- within It established ex- critically de minimis to rep- factually unsupported persuasion ferentiated territory by determination writing, pand etition in some opinion petit process only arrives when grand jury essentially never utilized due I cannot accommodate protect Reason abounds convenes. individual. analysis of statute why vast crimi- an absence majority of nonfederal hearing since preliminary required, proceedings nal states now no all but few repeal exists and proceed by preliminary the statute now information engender proce- hearing processes being expensive, undoubtedly serious less would in- dispositively faster, due-process most constitutional particularly dural affording quiry.18 preferable protection desired Decline, entitled ing that fewer tried, related: judication "On the criminal and administrative sides Judith docket, parallel Failing Resnik, U.Chi.L.Rev. posture Faith: are a most fewer illustrations of the anti-ad- Adjudicatory easily criminal thoughtful identified. Most Procedure cases are recogniz- analysis cism tion, defense, the alternative — settlement criminal likes ^[******] plea bargaining system decisionmaking process plea bargaining. but no one wants to adjudication. — judiciary; comes from occurs no one through prosecu- pay for much Criti- Adjudication, tion Without expressed baby

A is view that the should 78 Mich.L. if saved even the bath dis- water (1980). Rev. charged: Nearly every authority similarly analyzes “All of these values will be fostered requests to societal either eliminate or ren- require prosecutor present we the the evil, the reject ovate. I “see no hear no grand jury federal prima a facie posture the majority, evil” of and would legal guilt, strengthen case grand of operative accrue protec- institution’s jury’s capacity to make a reliable ex justly present tions to retribution a for parte adjudication guilt, provide and society, done, civilized or if not then fore- greater judicial safeguards against pros- legislature Eng- see that the should follow indicting ecutorial misconduct land and eliminate. Arenella, Reforming the jury.” Federal Jury Grand and the State Pre- the absence elimination of the liminary Hearing to Prevent Convic- grand jury presently constituted, as "Further, juries, in the few systemic criminal cases that are but rather are indicative tried, impressive the decisions reached have dysfunctionalities and institutional that are durability; grown harmless error has doctrine grand jury system inherent as it and enforcement of criminal defendants' presently Thus, organized. constituted and rights has diminished. The recent eviscer- appear the critical comments that herein Brady Maryland requirement ation of the ought not to be taken as an attack prosecutors provide exculpatory that evidence competence integrity particular prose- or aof to defendants underscores the distance be- cutor, judge jury, but rather di- adjudicatory premises past tween the of the rected at reformation of the current institu- acceptance decades and the current dis- a arrangement.” tional position-oriented system.” Id. at 532-533. Historically noting: countervailing plea bargaining See the on attack “Although historically it is clear that judiciary a sensationalized attack and Jury designed agency Grand as an of the judicial system Adamfine, Escape in R. executive, generally and in fact acted like (1986). Guilty ventriloquist's dummy, myth of the insti- I would reflect current review: protect tution as bulwark to the individual every matters, theory “Not constitutional despotic arbitrary prosecution led every competing difference in constitu- placing Rights require- the Bill of many tional theories matters. But constitu- presentment ment of a indictment of matter, profound tional theories differ- prerequisite prosecution.” as a theory pro- ences constitutional matter Id. at 39-40. foundly." Laycock, Theory Constitutional He concluded: Matters, 65 Tex.L.Rev. survey "A of the literature term Consider, also, Jenkins, Shift, The Lobster A.B.A. grand jury foreman have convinced me that 56, (November 1, 1986). J. at powers truly be do that not want a inde- "Our citizens see the courts as the ultimate pendent grand jury which on its own would protection, stability, and the rock of challenge the circumlocution office and the protection rights of their in the face of a lack Instead, contemporary political equilibrium. part of commitment on the of the executive Hoffenstein's, adhering to ‘come weal come legislative protecting branches in those woe, my quo,’ status is a docile and malleable rights. Our polit- citizens understand that the praised panel’ ‘people’s institution is as the against ical winds blow the frail reeds of serving protection as a bulwark of for the statutory protections rights, their but that against pos- individual the state. Given protection our courts are the solid rocks of any lobby change, ture and the absence of Greene, rights." Jury fundamental The —Pro- Further, unlikely. reform most as indi- tecting Citizens, Rights our XVII CTLA above, (March arrange- cated other 1987). constitutional Forum 38 Lewis, ments would better serve proposed ends having the same as the Ovio C. served as a foreman, grand jury. revolting reformed It is his initiated comments in The Grand Evaluation, Jury: to discover that there is no better reason A Critical 13 Akron L.Rev. (1979): practice the continuation of a detrimental rights retrospect "It the individual than it seems existed our Henry grand juries Jury in the time of generally was a microcosm of II. The serves, many longer problems given contemporary nor noted in the litera- condi- tions, throughout ture were it manifest our can serve its term. constitutional function supports proposition protecting This arbitrary weak- the citizen from grand juries oppressive prosecution nesses and defects of are not the state. Accord- duty ingly, reflective of lack of zeal or devotion to rational course of action re- part quires on the of individual members of the Id. abolition institution." at 66.

409 law, province it is previous now the of this that due-process requirement find a would fairness entity court to determine the and viabili actual evaluative function as an its jury proce- grand system acceptable as proper ty the requires real evidence political dure, system. hear- the electorate and the contrarily preliminary that a right by premise by in dissent My as a matter of is accommodated ing required can be terms, due-process legislature In the party. indicted the that has deter the view system relia- process afford reasonable should mined that as an compared a reflection bility adjunct be in criminal-law enforcement serves beliefs, well in- prosecutor’s however purpose, and that this court then has its a desires, tended, prosecutorial how- obligation his primary proper to assure func terms, In it motivated. constitutional tioning perspective, ever in constitutional fair requirement determi- of reasonable is justice. my opinion, In rea ness and responsi- that becomes the reliability nate Supreme soned of the States start supervi- in of its bility of this court exercise recognizing protective require in Court accept- responsibility. collective sory prosecutorial processes ments as found for oppressive in the name of conduct ance 516, 4 California, v. Hurtado in 110 U.S. of due justice effectuates a denial criminal Ill, (1884), with Ger 28 L.Ed. 232 S.Ct. process. 103, 854, Pugh, stein v. 420 43 U.S. 95 S.Ct. (1975), fails to ac L.Ed.2d 54 now achieve Equal Protection P. under Constitution of the commodation immunity, this prosecutorial Because of yielding Wyoming, abject State of general is denied effectuation of guarantees by justice diminished afforded Scalia Anderson by ideal stated Justice Calandra, supra, 414 v. United States U.S. — 3034, U.S.-, Creighton, 107 S.Ct. v. 613, 561; 338, Costello 38 L.Ed.2d 94 S.Ct (1987), 3038, he 97 523 when said L.Ed.2d States, 359, 76 v. United supra, 350 U.S. that 397; * 406, “ * * most 100 L.Ed. and now S.Ct. government abuse officials their Mechanik, supra, v. United States recently offices, damages may offer ‘action[s] 66, 938, 106 89 L.Ed.2d 50. 475 U.S. S.Ct. vindication remedial avenue for Henderson, See Tollett v. U.S. v. Harlow guarantees,’ of constitutional S.Ct. 36 L.Ed.2d 235 Fitzgerald, 457 U.S. [800,] S.Ct. (1982)],” [2727,] L.Ed.2d 396 according of this decision [72 effect Hennigan to a 1987 world just not but opinion, though, as he continues even statute, in con- do deal new we States Court the United reapplication of intent of struction or has avail- legislature except process be suggested precise con- “never funda- are concerned with the able. We immunity and should tours of official can sys- justice-delivery mental factors derived from the often ar- slavishly process created tem in execution of the common law.” cane rules supervision and con- by judicial diminished at S.Ct. application. stitutional granted prosecutorial immunity With Rupe, Wyo., Wyoming by Blake heri- no basis our constitutional find (1982), cert. denied 459 U.S. P.2d 1096 as a tage use of the for the L.Ed.2d 442 mis S.Ct. tool, differentiation prosecutorial little only be addressed chal conduct can except for filing of an information lenges process judi aberrations secretly support by investigatory additional rejection. Prosecutori supervision cial Consequently, subpoenaed witnesses. by damage repaired is not al abuse that appearances pretrial basic intent certainly responsibility must be circum probable cause not be different- test should supervision. judicial scribed prosecutorial ly available either employed in the methods which recently enacted With simple recognized in complete courts this state is and the ab- Wyoming, statute our Constitution authority application of the terms of realistic from the sence ways power My presume comparably itself. This court cannot have it both limited disingenuous hide activities of the absence an actual record to determine secrecy, prosecutor say Hopefully, behind and then real events. these events will repeated foresight not be “while the individual afforded due right magistrate man doth run not to impartial contrary;” when a cross- assumption in argumentative opinions ignored simply say or denied. I would does a today right little establish standard for future required by that such a criminally charging conduct pro- of these of Constitution our state.19 cesses. ignored English It cannot be that Pragmatically, presume I cannot more nation, birthplace system jus of our experience than extensive trial analysis and tice, operational grand jury found that the permit application would me conclude in justification in lacked societal its total elim ignoring of Frankfurter’s criteria as years ago. ination now more than 55 Fur judge First, what we know as man. thermore, in Wyoming, be denied it cannot knowledgeable real evidence a witness due-process in preservation that lib and presented session; was in three-day interests, erty equal indictment is not second, following anticipation, in his all in- information, charging by cannot, in and pre-prepared by prose- dictments were terms, procedural academically charac cutor; third, jury had no Attacking terized fair. as it does that conception proof process in the actual liberty interest which invokes the strict- production. indictment standard, I scrutiny cannot relate unfair inequality ness and acceptance My to reach Campbell real concern about guarantees. within constitutional County grand jury episode Neither is the funda- protection equality nor fair overwhelming is accorded to mental of the Public Defend- post-indictment individual uncontrolled er’s process office jury encroaching upon rights trial, subsequent rights reserved where individual by explicit guarantee. him justice constitutional became enfolded or ensnared assessing right In grab-bag, denial of a mass-produced must factory for con- remedy, be vindicated Inadequate effective Mar unprovid- viction. records and Madison, (1 bury Cranch) discovery v. U.S. ed occurred. statutory com- (1803); 2 L.Ed. 60 Hobby pliance provided constitutionally rights States, supra, 468 U.S. the preliminary hearing process S.Ct. were 260, equal protection 82 L.Ed.2d demonstratively must not proscription denied in the be denied. a adequate justice-delivery fair and sys- tem. toNot be either Chicken Little or G.Burden Cases Cassandra, uncontrolled totalitarianism of adjusts This court indictments the criminal happen can here if approximately 237-count, and the three-day guarantees ignored constitutional are when remarking session in that: first denied to someone else. *“ * * grand jury might have re- [T]he H.Prosecutorial Misadventure And lied the same evidence address- Legally Impermissible Conduct ing involving cases several defendants. 1.Interspousal privilege and denied wit- Given say these we circumstances cannot privilege ness properly that the not per- did assigned form their tasks in the time subpoenaed his examination of a male available; presume they we will granted witness who was not immunity, Majority opinion did.” at Murray engaged colloquy ain under the political probability, three-day 19. In all reasonable Mur- had indictment sessions been ray might Hladky county attorney still be completed, so that rational a examination in processes Campbell still County if the sheriff utilized in relationship probable fair cause would have pre- had included an information perception operation- been afforded for a of an liminary hearing, required ifor this court had ally system justice community fair view. availability preliminary hearing after

All placing you you notice that I think prosecutorial are probability reconstructible probably committing perjury particular at the witness approach that target, municative privilege, and you wife. have to “Q. right questions which is called the * * * as was If were testify about to exercise nature Let his that is to me to ask wife: between tell anything of a com- privilege you you say, you do you some you marital I ask ques- your you point sale “Has “Q. - ^{[******] [*]} Have your the last three methamphetamine time. ^[*] you husband ever ^[*] ever seen—strike that. years? ^[*] or crank discussed the ^{[*] [*]} that, “Q. you When was the last time saw tions, you tell this or your did wife ques- your methamphet- consume those husband you have to answer do not do That’s amine? you choose to so. tions unless privilege.

called marital say I the time I him “A. would last saw “However, understanding priv- when I my was did.” ilege exist as to those it does not familiarity Murray Apparently lacked with her do. things you have observed that 1-12-104, W.S.1977, 1-12-101 and §§ Okay. “A. v. Blau as the unknown cases of well not States, “Q. I intend you that not because U.S. United I tell 340 71 S.Ct. large v. get questions amount of Trammel Unit- to into a 306 L.Ed. States, you your concerning 53,100 what have observed ed 445 U.S. S.Ct. Rather, doing. going to dis- (1980), where, conclusion, wife we’re in L.Ed.2d you I people. cuss But believe other Burger even Justice said: * “ * * right to about the marital have a know Accordingly, we conclude that to privilege, you will be able that modified so existing rule should be privilege. same exercise the privi- has a witness-spouse alone that in you any questions “Okay. Do adversely; lege testify to refuse to concerning privilege? regard that compelled neither to tes- may be witness No, testifying. “A. sir. This tify nor from foreclosed vesting privilege in “Q. if I’m try you I’ll to alert fact modification— important witness-spouse going you questions you have to ask —furthers harmony answer, in marital without right you public policy to if choose not not burdening legitimate enforce- unduly law do to so.” ment needs.” Stahnke, In the of Julie Jean examination target, obviously whose husband was Immunity indicted, plea, entered a was later sentenced, interspousal priv- and where the conduct of Pervasive mentioned, ilege Murray’s prose- even was not sessions was the attitude introductory power comment was: vested to cutor that he was consequently forced immunity and you your responses grant

“I must advise rights Fifth Amendment testimony when give should you truthful, you knowing- asserted. fact be because were ly intentionally or made a statement relationship of court to the district truth, you here knew not to be the which by generally recorded process is not then a crime you will have committed transcript, since it is revealed that available perjury, felony punisha- is a called occasion, a witness refused on one after by years five in Women’s Correc- ble to the district testify and was then taken tion down at Lusk. Center “instruction,” session you “Do that?” understand by prose- the court was not transcribed He later further commented: The relation- cuting attorney’s direction. immunity to

“Q. ship of the so-called informal honestly you I have to tell truth, some subsequent charges affords perjury don’t think that’s the I am invoked, interesting does except separate academic review which statutory provi- relating sion appar- occasion to controlled our instant comment since substance: ently subject none of the duly individuals peace “All authorized officers in- presently cluding special agents perjury before this court on or per- other appointed by Lacking sonnel the commissioner appeal. authority common law [attorney general], investigating while vi- prosecutorial right or statute for olations of this act 35-7-1001 to 35- apparently [§§ immunity, Murray afford relied performance of their official 7-1055] on what is characterized as “informal im- duties, prosecution shall be immune from munity.” Anderson, See v. United States person this Any working under act. un- (D.Wyo.1983), F.Supp. mi rev’d direction, der the supervision immediate (10th Cir.1985), F.2d 602 wherein duly of a peace instruction authorized against the right latter case self-incrimina- officer, special agent person ap- other tion was not on a lack considered of stand- commissioner, pointed by the may be ing assert, by of a defendant to citation of granted immunity prosecution un- Skolek, (10th F.2d United States der act commissioner. Cir.1973). recently See more foregoing persons, addition to the such Kilpatrick, supra, 821 States v. F.2d 1456. immunity may granted also be Immunity system under the federal re- person testimony whose necessary quires granted upon a court order formal secure conviction under this act with application. Bryson, Jury Beale & judge the consent of district in the dis- Practice, supra, 9.06, p. Law & 20. Actu- prosecution § wherein place. trict is take to ally, the Attorney United States cannot person granted act Any immunity under this order, seeking requires alone in the but testify- section shall not be excused from approval ing producing or ranking ground of certain officers in evidence on the Department testimony that the required or evidence Wyoming Justice. is classi- may of him tend to incriminate him or generally fied general- as a state no penalty to subject him or forfeiture. immunity Id., 9.09, p. statute. 28. This § Any person except who provi- for the general text recites statutory that act, privi- sions would have been immunity granted scheme is that leged testimony given to withhold the or court and not prosecutor asserted produced by the evidence him shall not alone, as to constitution- prosecuted, subjected any penalty, be statutory structure, al and only Art. § forfeiture, any for or on account of provides: transaction, thing concerning matter or person “No compelled testify shall be which, by immunity, reason of said he against case, any himself in criminal nor gave evidence; testimony produced person put shall be jeopardy twice testimony given no such or evidence for disagree, the same If offense. produced be against shall received him in judgment or if the be arrested after a proceeding. Provided, criminal verdict, or if judgment be reversed person given immunity under this section law, for error the accused shall not be exempt prosecution shall per- deemed been jeopardy,” contempt or giving committed while provision and no immunity other testimony producing evidence under requirement provided testimony can compulsion provided in this section.” involuntarily right 35-7-1043, elicited when Section W.S.1977.20 relationship you 20. The of this authority grant statute to the use and "A. Do have the im- munity? immunity attempted derivative use to be afford- correct, “Q. That's I do. prosecutor interesting inquiry ed is an authority? "A. Under what specifically, process itself. More is defined got questions, guess just ‘I’ve some and I I witness, obviously when one more informed —I don't mean to grand jury, discuss in front of subpoenaed participant, than the normal occa- appropriate Ibut think that it’s exchange: sioned this do it. Shaver, right. v. All Miskimmins “THE COURT: however, See, (1899); 49 L.R.A. Honor, 58 P. Wyo. “MR. MURRAY: Your Miss Fris- State, v. 554 P.2d 1217 Wyo., Richmond subpoenaed Camp- before the tam was Cf. P.2d (1976), reh. denied 558 County grand jury and went into bell State, Wyo., 740 P.2d Haselhuhn testify ap- in front of the at — concurring. J., Thomas, specially ago. proximately 10 minutes witnesses, as de- properly began and then Although three of the “She was sworn record, taken through give testimony, specifically were in re- terminable court, recorded gards person by the district to a the name of James Jayme Sue involved available appearance Charles McFarlane. subject-

Fristam, incidentally was later who I placed “I Miss Fristam on notice that she un- charge for which perjury ed to a was in of either believed she guilty entered doubtedly inopportunely committing perjury, or about to commit November, indict- following a plea perjury concerning explained to her in the ab- exchange, initial ment. That testimony rendering, she was counsel, legal repre- although her sence of question and then asked a as to whether noted, curious: is most status was sentation present ever at or not she’d been is in session Court “THE COURT: had ever sold a con- time Mr. McFarlane County Grand Campbell matter of the trolled substance. Jury. time, purposes and for of this “At that official court is the “Present chambers hearing, she then her Fifth invoked Campbell Murray, reporter, Mr. silent, right not as Amendment to remain Prosecuting Attorney, County and Fifth Amend- artfully, perhaps, as the know. I do not someone else state, essentially she ment but identify yourself. you please “Would silent and exercise her wanted to remain Fris- Jayme I’m Sue rights. “MISS FRISTAM: constitutional tam. recognized that and at that time told “I Jayme what? conferring upon “THE COURT: her use I was her that immunity and ex- derivative use Fristam. and FRISTAM: “MISS necessary testimony secure a conviction to Okay. Judge "Q. Judson for other witnesses of the district act with the consent past that under this three weeks from the time over the prosecution is to judge district wherein formally held that I had the we have met has place.’ grant authority use deriv- take law to and common abrogating “My is that the statutes immunity. concern ative use provide need for some law Okay. common "A. immunity. my approval judicial stamp for understanding you my "Q. here from And is not an Judge "Q. has ruled that compelled testify Judson today you is unless are to immunity. way granting testify? you exclusive do not intend to For that record, Okay. compelling "A. purpose I am that thing you important for to “Q. light I think the testimony, and in violation —or pur- you’ve for is that announced your assertion. remember fifth amendment you to do not wish poses the record that Okay. only question that I have "A. you compelled to do so. testify testify unless are I want to in front of the is—and obviously testimony, compelled it "Once it’s jury. me, against you. immunity you giving be used your cannot seek that are "I is, according Yeah. question to "A. "Q. I have according Wyoming but you make if wish to And I think the common law and to concerning statutes, on the record provides further statements certain § 35-7-1043 for testify, you and I do not wish to giving immunity peo- the fact that other methods for to compel- clearly telling you I am very am that including ple law enforcement officials and testify— ling you to others. Okay. immunity “A. "What I'm concerned is that the me, amply protect- you probably good, "Q. are you giving hope I think which I that are portion good, pertine.it ed. "Furthermore, fact be but the will in target you are not a provides says, that —it ‘in addi- of that statute prose- grand jury. to seek persons,’ referring We do not intend foregoing to tion to the — immunity cution. officials—‘such law enforcement right.” granted any person "A. All to whose also be her, plained testimony to her that her By giving you “THE COURT: that im- munity testimony you longer placed and the her not no fruits could are in jeop- ardy. proceed- her in against used court ing today or the future. what the “And Fifth Amendment of the provides United States Constitution “At that she indicated was still time she you are required give that not to state- going question not to answer the and against that ments can be used you in attorney. wanted her to see prosecutions. By criminal being offered “I enquired attorney as to who her was. immunity they longer can no be used the attorney’s She said that was name against you. you longer So have a Steve Johnson. reason not to answer. record, might “I for note and think you “Do understand that? aware, has court’s that Mr. Johnson “MISS FRISTAM: Yes. appearance entered an Mr. behalf “THE you COURT: If fail to answer the So I don't he can McFarlane. believe questions, dealing the statutes represent Miss Fristam. grand jury provide if the that court—and “I if asked her she had in contact been that’s me—determines that witness is no, explained with Mr. Johnson. She answer, persists bound he in his telephone working, that his was not refusal, brought he should be before the that she was unable make contact with proceed shall in the same— him. proceed who shall in the same manner as “I then asked her whether or not she if interrogated the witness had been going my questions. answer She court, open refused answer in going informed me that she was 41(e) apply means we Rule our Rules my questions. answer Procedure, Criminal that’s the “And then I informed her that would we dealing contempt. rule with criminal then come judge down provides “And criminal con- purposes moving of the state her tempt may punished summarily if the why show cause she should not be held judge certifies that he saw or heard the contempt of court. constituting contempt, conduct “That is the reason that we’re in front of it was pres- committed in the actual you now. ence of the court. “THE you. COURT: Thank “And, see, you says that statute correct, “Is that Miss Fristam? you jury, if refuse to answer it “MISS FRISTAM: Fristam. treated is to be it was done in front “Yes. of the court. “THE sorry. COURT: I’m contempt “The order of shall recite the Murray explain “Did Mr. you to what he facts, signed judge, shall by be by is, immunity, means use that what record, entered on the and I may then you say against you? cannot be used place you jail county period for a That, course, does not mean it cannot up to six months. against be used people, other but it can- alternative, Murray “In the if Mr. should against you. not be used proceed by filing way wish a crimi- addition, “In what he calls the fruits of contempt against nal you criminal that against statement cannot be used contempt, he may do A that. trial you. you If say what to the had. you And if are convicted discovery leads to the of other evidence you possible would face a penalty much against you, that called the fruits of in excess of six months. statement, your and that be used cannot “I probably believe that it is Mr. Mur- against you also. ray’s desire point, not to do that at this you “Do understand that? you you but I must tell refuse to “MISS questions FRISTAM: Yes. you go answer the will jail. States, Kastigar v. United you supra; Do sion. “I need to now. wish know States, 422, Ullmann v. United questions or not?” answer the 350 U.S. 497, 511, 100 L.Ed. 76 S.Ct. A.L.R.2d recog- did court not Apparently district 1008, 928, 777, reh. denied 351 U.S. 76 S.Ct. prosecutor only not the nize that he and (1956); v. United 100 L.Ed. 1457 immunity pursuant only to the grant could Hoffman States, 479, supra, 341 U.S. 35-7-1043, S.Ct. statute, W.S.1977. applicable § Walker, Brown v. 1118; L.Ed. 161 U.S. immunity any common-law Derivation 40 L.Ed. S.Ct. to be otherwise was considered with- prosecutor can- of the in the authorization Any prosecutor basis for the to accord to explained in justified or additionally not be power grant immunity himself the In the record then made. context by certainly justified Wyoming case not power cor- corrupts, absolute "power law, statute, or constitution. As a matter absolutely,” this rupts I see uncontrolled fact, circumstances, present under the irresponsible grand jury session as an right no statute where exists to “waive his- unusually clear demonstration prosecution” by grant immunity adage. torical require testimony, lacks determinate validi- immunity noteworthy also that the It is ty. legislature by Attention immunity affords a transactional both, statute rule, inap- would not be adopted contrary posture propriate. de- prosecutor. The differentiation is Bryson, Jury 2in & scribed Beale Requirement dis- that witnesses not 9.03, Practice, p. supra, & 9:

Law § grand jury testimony cuss their immunity principal types “The two are stated, gen- Simplistically this absurd but immunity’ referred to ‘transactional erally prosecutor used command immunity.’ ‘use and use derivative legal validity, but rule and lacks under immunity Transactional is broader. A express directly contrary statute is now given witness who is transactional immu- statutory provisions. Perhaps nity protected against prosecution like to have been ac- witnesses would any matter he testifies un- about which but, jurors, corded the same function as grant immunity. der the Use and lacking responsibilities, they statutory immunity gives derivative use the wit- secrecy obligated by could not same against protection only ness the use of stated, expressively accountability. More testimony and the his immunized use of although generally occurring in all cases by exploiting evidence his obtained ending Thus, except some testimony. where for reason while witness with immunity contact with the witness prose- transactional cannot be session record,” cuted at all for the offenses “went we find a female about which off testifies, exchange witness-prosecutor he use deriv- illustrative: witness with immunity ative use does not “However, dis- you liberty are not at guarantee.” cuss it other members States, Kastigar staff, See 406 U.S. hospital or with other members 92 S.Ct. 32 L.Ed.2d reh. you per- community unless receive 408 denied U.S. 92 S.Ct. 33 L.Ed. judge. mission from a district court (1972); Foreword, Symposium: 2d 345 judge? District court “[THE WITNESS]: Granting Immunity’, ‘The Witness 67 “This have been in court is all—I J.Crim.Law & (1976); Criminology years I ago when divorced. Immunity Wolfson, it particularly —How that, sir? “May explain I Life, in Real Works & Cri- J.Crim.Law “MR. We’re not interested MURRAY: minology Nothing found the divorce. opinions States the United No, I are you know considering grants immunity Court WITNESS]: “[THE suppose derivation conclu- not. common-law

“ * * * just you Jury I would like all know to term that, I, something slips slip if I if statute in force when something. say provi- these events occurred21 contained no length for sion of term. One of the nine “Tell me what do? State, appeals, Kortz 746 P.2d su- slip. “MR. MURRAY: Don’t pra, question, together invokes specific this slip. Okay. Don’t “[THE WITNESS]: with other issues. The term of the District simple. real “MR. MURRAY: It’s Campbell County began for Court on the Monday February That’s I need what first and ended before “[THE WITNESS]: Monday September. the second to know. Without regard argument for pursued otherwise talk what “MR. MURRAY: Don’t about completed investigations of about individu- today anybody except here went on with als, State, supra, county Kortz v. attor- prob- your attorney you won’t have a regard ney gen- continued without for the lem. rule stated, eral that where not otherwise Okay. “[THE WITNESS]: grand jury terms end with the term of you if “MR. MURRAY: And want to talk for petit juries. court else, somebody about it with you contact law, grand “At common jury’s term your attorney; apply he’ll court expired at the end of the term of the permission, routinely which will during for court denied. convened. Many states continue ad- rule; here this common law others Okay. you. Thank “[THE WITNESS]: have altered the common law rule pro- “MR. MURRAY: But that’s—the enacting governing statutes rules ceedings are secret. length grand jury’s term. Okay.” (Emphasis “[THE WITNESS]: system, “In the regular grand federal added.) months, jury up sits for to 18 although requirement This prosecu- asserted discharge grand the court can jury compares tor with secrecy criteria for period. before the end of the 18 month only jurors and prior officers of court in special grand jury A also sits present statutory provisions law and mak- months, discharged unless earlier ing 7-5-208(c), W.S.1977, clear in court, § but the court extend the term Replacement, obligation secrecy that the special periods up extension, is restricted. to six months for each grand the court determines that obligation secrecy may “No im- jury’s completed. is not business posed upon any person except in accord- special term of grand jury, total how- ance [basically section ever, grand cannot A exceed months. personnel] and [secrecy W.S. 7-5-207 jury whose expired longer term has is no indictments until a warrant issues].” grand jury; considered a loses it added.) (Emphasis indict, power subpoena witnesses, Synthesized in the silence demand and engage and to of the other actions explicitly pros- communicated threat of the is otherwise entitled to ecutor is principle the behavioral “it perform. you get it,” OK if can by with in that “Because the difference in maxi- their secrecy no one knows how the are rules terms, potential important mum it is written. Reference philosophical re- particular know whether a federal view Georgia, found Wood v. 370 U.S. regular grand was convened as a (1962) 82 S.Ct. 8 L.Ed.2d 569 or as special jury. In most helpful. cases, application order and the con- 1987, 7-5-102, W.S.1977, present May pro- judge. 21. The law in effect trict Section year vides the term shall for one after Replacement. discharged by selection unless sooner the dis- authority grant is to an inter- One line of jury will make this vening the challenge grand jury to right appeal im clear clear, occasionally it will not be but process defalcation. United States v. Ben- to grand jury was intended the whether (9th Cir.1987), citing jamin, 812 F.2d grand jury. In special regular or a be a Industrial Loan Cor- Cohen cases, reviewing court must those Beneficial poration, U.S. 69 S.Ct. identity such as factors consider L.Ed. authority, language requesting us, then, charge before is whether question court’s to “The application, and the effect of Mechanik deprive will be to in order to determine grand jurors effective review of governed by appellants grand jury is whether judgment. final claim after Anoth- regular grand ju- their applicable to rules put question is to ask way er special applicable those ries or preme Court tously denied prohibition on The issue is relevant as attorney and further reason as the indicated hearing, first ling principle process vehicle. tice are events demonstrations of the widely, from during the 37-38. maximum ordinarily available thorized court. term.” “The terms detail of presentations that were completed of misuse and erroneous advice are joint passengers juries. all of which Typically, the extensions 1 Beale & only to of 18 grand jury’s regular present should not have so the writ for mandamus and September of state a minimum 10 attitude of the months, with extensions secrecy complete denied consideration justifies Bryson, absolutely compel- to this grand juries vary authorized 5, 1985, in this criminal- and denied appeal. already investigations why this prosecuting appeal § the extent days statutory 5.09, without precipi- are au- on this begun These to a jus- Su- pp. whether, Mechanik viewable after the defendant this case and harmless Mechanik majority effect to conclude that the answer is ‘no.’ afford that a similar irregularity in this case tentions trial. discovered, able. error rule to case would render ion ate for a of a motion “There is another “First, grand jury as to what ^[*] trial Indeed, appellants it seems clear proved to be Mechanik, we would be Mechanik, error doctrine violation of Rule after had ^[*] stated: and the made and ruled Mechanik. application there appellants’ claims in this begun. irregularities remedy may final giving ^[*] any relief if them government ‘We effectively distinction between judgment. motion rendered the claim ^[*] meritorious. enough that full express effectively irregularity was was the adopted by 6(d) that has precedential made, asserted majority in ^[*] their con- unreview- harmless appropri- concedes subject able unre- after opin- ^[*] We charging deci- grand jury’s affected the By Jury Verdict Waiver I. brought the attention of and is sion the commencement the trial court before States v. Mechanik results from by-trial jury-verdict ratio decidendi. chanik, harmless-error rule 89 L.Ed.2d supra, Court is inculcated United States One of the most irrational process violation implication United States U.S. applied appending recent case confusing S.Ct. a cured- v. Me Pre our chanik does not omitted). of trial.’ court’s “ pretrial * * case, involving ^[*] * order in this Our This disclaimer motion to dismiss. ^[*] Id. 106 S.Ct. conclusion that ^[*] automatically as it does the denial of case is ^[*] at 943 means that appealable as the district ^[*] (footnote apply ^[*] Me- only from its stems not order operative judiciary, federal a collateral dictably, the meeting requirements the technical current court through trial-court action and also from interlocutory appeal, but decision, ways. has reacted two 418 v. Taylor, appeal no United States

the fact that if is allowed at In 798 F.2d stage, (10th appellants wholly Cir.1986), will fail 1339-1340 to the court protections 6(e) from the Rule indicated that the line of benefit one effectuation constitutionally-mandated distinctly presented. was imposes on the “ * * * grand jury process. Errors that affected Thus, only question we must grand jury proceedings to the detri- decide is exception whether an additional accused, ment and that would judgment to the final rule has arisen justified Mechanik, have the district court dis- like Athena from the missing trial, the indictment before head of Zeus. States v. ger, denial directly contrary reasonable doubt. The First Circuit Court Porter S.Ct. 2d 682 tomarily be harmless law Cir.1986), For a becomes (7th Cir.), Cir.), cert. denied The other line Supreme Court decision to what would cus United States v. struction.’ min, locutory appeal supra, 812 F.2d at 551-554. and the toward ineffectiveness for the Rule. An inter- would trict sal. ‘practical Appeals (1st Cir.1987). — verdict standard, evaluation, We U.S.-, procedural-error meaningless go wholly result, LaRouche reh. denied 810 Wainwright, cert. the interim Supreme has cannot believe that rather ” rendering L.Ed.2d itself erred in egregious-conduct denied, United States recently sub Thomas, 107 S.Ct. authority will than unremedied § error, Campaign, Court intended such in any nom. 1291 harmless — 805 F.2d 930 appeal prevent Ninth Circuit in taken a a technical con- application, see so denying F.2d Porter v. or is to U.S.-, newly confines the application. F.2d v. Benja- test, beyond 829 F.2d Then see Congress that un- 96 L.Ed. position the dis- created given dismis- Dug (11th (11th petit case termination of error worst, the defense. transgressed fundamental was charge without cause or to undermine grand jury or to otherwise affect fairness of the question ment to fundamental allegations tion to final not to the final ing criminal ing trary distinction between a defendant’s has makes “We of crafted Mechanik alleged irregularity which occurred dur- “Defendants ^[*] not resulted in another perceive affected was probable attempted was stand accused along charging true. process, alleged whether the judgment ^[*] not technical, and, most, were made that the prosecution Mechanik, judgment. argue that the Court has drawn a the defendants’ fairness. The error of probable discovered until very accusatory process. cause and a broader was Mechanik fairness ^[*] pervasive attempt from initial process; short, rule. narrow unfairly sway except upon unreviewable ^[*] cause. Since the government In logical was throughout there was no at but lines, exception # guilty, jury’s investiga- rights after extension carefully govern- a find- and it There could right right ^[*] con- any had de- no at began, trial the trial was more three than hardly This court can take comfort in duration, months and the ef- outcome

anticipation approach, of either since a di- fectively any question eliminated proceeding rect-contest was instituted be- probable cause, there trial, whether fore rules waiver or cure Court found the error was harmless. properly ap- verdict cannot now plied. ignore This respon- court cannot its Court Mechanik “The did abrogation sibility adjudicato- its own a Rule hold that 6 violation of sort time, ry obligation at this it since denied other act which affects the funda- proceedings challenge justi- filed fairness proceed- mental of the criminal ciability propriety ings prior justi- discovered to trial is not any jury sessions before trial was con- ciable after conviction. That is a critical vened. distinction.” Ciambrone, v. Circuit, United United States Tenth See also also the 601 See from (2d Cir.1979), J., 723, Friendly, (10th F.2d 616 Page, v. F.2d 726-727 dissent- States 808 — U.S.-, ing. Cir.), denied, 107 S.Ct. cert. (1987): 3195, 96 683 L.Ed.2d Appeals spe- The Court of New York may only “We an indictment in Peo- cifically dismiss follow Mechanik declined to Wilkins, 269, misconduct is so fla- ple prosecutorial v. the 68 N.Y.2d 508 N.Y.S.2d significant 893, (1986), ‘some grant by there was 501 542 statutory N.E.2d grand jury’s infringement ability interpretation separating in defects pro- in judgment.’ ceedings insufficiency independent to exercise evidence. pra, testimony: See, sufficiency of the evidence after trial sion; similar to 806 F.2d 840 errors connected with 1518 1204 jection recognized in these cases is not to tiary basis of the ny on which indictment cannot intended to certain. ment ment’s ciency, dence. been issued abuse, ecutorial misconduct. ency cases of cases, “This mony, “The however, United States verdict deceit, different is that (7th Cir.1985), prosecutor’s knowledge of (7th Cir.1985), considering ^[*] adequacy insufficiency jury conduct United States 89 L.Ed.2d 304 basis know the first that the clearly bad knowing confines The second preserved United States prejudicial * * * which converts # (use requirement, to fraudulent (8th Cir.1986), differentiating preserve faith, or vindictiveness.” except insufficiency of the United makes the case one of indictment would not have is not a evidence was What makes the basis use of ^[*] judicial following v. of the evidence but to hearsay cert. denied 106 S.Ct. v. it involves Roth, States v. subverts misconduct, indictment’s eviden- requirement (1986), considering Murphy, challenged for ^[*] Whether perjured v. principle manipulation intervention acted. case charging 111 Mechanik, issue); perjured inquiry adverse as route is not its perjured, Hintzman, ^[*] an element issue from F.2d its insuffi- a involving 768 F.2d perjured evidence indepen- testimo- The ob- govern- consist- govern- that an on the review and as about petit- pros- testi- ^[*] deci su is, phy, 440 lenge Jersey in waiver reasonable-doubt test tinguishing See 512 A.2d 525 found in current statement where habeas noted that rendered harmless after Rhode Island New dict, following supra, 350 that a corpus authenticated comparable to Rule granted jury.” request Although vice or stenographer, operator of a that a ed in connection with a or when ring motion to directed “ * text of present also A.2d F.Supp. as an N.Y.S.2d testimony Jersey applied matters 213 discussion, * * Replacement, before the motion lack of People any typist particularized need exists for a State v. of the defendant adequacy-of-evidence application. State [A] U.S. NJ.Super. permitted by Wyoming does not dismiss the granted Mechanik petition (1987)). the court statutorily: occurring juror, (1986), 613, to dismiss an indictment applies may disclose matters occur- 359, Costello v. prejudice v. and then (S.D.N.Y.1987). Lee, Dunbar, Murphy, § who transcribes record- 423 N.E.2d 36 76 6(e)(3)(C)(ii),F.R.Cr.P., Mechanik as to clearly attorney, 7-5-208(b), in an upon petit jury S.Ct. the error-beyond-a- 211 is most judicial proceeding indictment because Saldana preliminarily to or v. United certification principle upon showing NJ.Super. 590, Court of New 53 517 A.2d 501 untimely 406, verdict. State v. Mur- demonstrates a real sense recording N.Y.2d interpreter, W.S.1977, 100 L.Ed. expressly NJ. v. when so States, at the of dis- State, a rule delay (It chal- 868, was ver- de- is adoption I see an invitation to cases where the misconduct made Mechanik, supra, for this court to States difference to the defendant.” responsive approach cogently appealable orders, cultivate a denials are not Justice Weinberg, opinion advised Marshall’s Mechanik pro- Mechanik: After authority appeals. vide for such In ad- Jury Safeguards?, What’s Left of dressing point (Winter not considered in A.B.A. Criminal 39-40 Justice concurring majority opinions, 1987): Marshall logical consequence that the noted “(1) press vigor- Defense counsel should holding majority’s grand jury errors un- cases, ously, in appropriate pre- for the conviction, reviewable after was pre- grand trial jury release of minutes under denying orders may conviction dismissal 6(e)(3)(C)(ii). Rule provision That autho- be deemed ‘collateral immediately orders’ rizes disclosure where the minutes are * * appealable necessary ‘grounds shown be because characterization of Mechanik may exist for a motion to dismiss the author, partner a Washington, D.C. occurring indictment because of matters law firm of Connolly, Williams and is ex- grand jury.’ before the Since Mechanik pressive: may make midtrial under disclosure Rehnquist’s “Justice opinion recent for a Jencks Act late a too for defendant to majority, reversing five-member dis- any obtain relief for abuses the minutes grand missal of jury’s conspiracy a reveal, district courts should be sensitive lation was harmless in its effect on the ing, the same rationale must apply to the error trial grand jury’s deliberations. assessing appellate review of court have the entire trial record avail- able to assess the context and effect of in the context of the gate only way that the record under Rule closure of the rule—defendant should chanik rence, cause Rule dicial—within the motion to dismiss should be denied be- application “(2) # past. ‘harmless.’ When the errors, 6 or constitutional violation is defendant both of which reject the resulting majority question ^[*] government of Rule where the defense and the government argues petit # Although has pertinent grand need defense can meaning of whether an error 6(e)(3). jury’s decision-mak- 6(e)(3)(C)(ii) not shown that a O’Connor ^[*] press claim this is obvious more This of the Me- ^[*] for full dis- fairly than in concur- per liberal that a preju- ^[*] jury vio- liti- se benefits poetry. The ‘societal costs of reversal fendant’s Khayyam’s Rubaiyat supplied Rehnquist harmless error legal rule was treated room—a hitherto jury’s unauthorized ‘Chicago School’ economics and Persian connected with the harmless remedied on Id. at 942. novel ‘any held that ceedings. the accused’s from both charge in United States v. Mechanik “Invoking the harmless error rule in a [supra], dismissing retrial’ were held to policy justification error in the verdict fashion, entails a remarkable beyond grand jury rights. grand rested precedent vindicating Thus, person appeal rights of guilt an indictment when raised jury well-recognized ground a reasonable doubt.' grand charging Mechanik Mechanik in errors because the a for this unusual established that a convicted de- jury grand presence combination outweigh protection decision was majority grand on appeal. And Omar proceeding pretrial— departure jury pro- majority of an petit “(4) pretrial When a philosophical motion to with the dismiss rationale he re- quired: indictment for ‘In proceedings violations courtroom denied, elsewhere, moving writes, “the finger defense counsel should consid- noting having er appeal, writ on”.’ securing stay moves Id. at 942- resolution, 43.” Id. pending of trial its at 2. re- “ * ** sulting delay would not hurt the defend- The ABA Delegates House of ant’s interest. Unless and until a Su- unanimously legislation called for such preme majority Court pretrial holds such August at the 1986 ABA Annual Meet- supposition lost in as to what proposed by I am also adopting a resolution ing, suggestion Col- proposes Justice Section’s White of a test Criminal the court Mechanik, supra, result orientation. terms as a reassertion that the mined L.Ed.2d v. and reconsideration of ance conduct is found (2d United States lar Crime proved flects the Rarely does the ABA react tice Protection Act of 1987’to ensure make historic nism for gress adopt a ‘Grand chanik’s Indeed, Court meaningful way gressional Mechanik case dead letter.’ I find no differentiation “ Hillery, * * * means. A more rational Cir.1987) Supreme Court ABAJ ^[*] may justice adjudication in its clearest column justice delivery by the Section Council It is the ABA Journal’s enforcing 474 U.S. potentially ^[*] profession’s concern Committee in March (1986), action ” Id. longer v. urgent had prosecutorial misrepresen- grand jury safeguards ‘a except by artificialities Valentine, ^[*] (May decision; warned, conviction Rule This is result-deter- at 40-41. that the create the sweeping effects. prosecutorial ^[*] between concerned 1986). 106 S.Ct. in Jury Procedural long continue to system criminal ‘Without recognization so jury abuses.’ its end ^[*] reversal 100th Con- quickly States speed with Me- F.2d 565 Vasquez justifies that the mecha- compli- April. prac- ^[*] con- mis- ap- re- 88 v. place, than raise and prohibition, to be corpus. istically denied Not cannot be geant and criteria what acclimated tice concerned bury. A man v. mary responsibility rights served States 1999, Constitutional field of individual significant state court “The defect prosecution Douglas only is this process error on a far broader attack is the individual identifiable with the Marine drill similarly 26 the defendant is not era since Warren records, Supreme Court in the face of discernible United that in Russia for 1980s could invites Alabama, Assuming L.Ed.2d 387 logical tested? his any jurisdictional inquiry dispositively or all in habeas obeyed platoon interim special witness, directed comments ephemeral but evidence, trial-testimony sufficiency the issue of protection extension is to eliminate 399 that Headrest Gary prove I suggest three, corpus.22 rights protection. directive. See (1970), as the concurrence appeal, trends U.S. state courts. do we resolve here Trudeau, document leadership in the to be a decade Burger replaced courtroom always 1, 15, application by where is now a it more real- certiorari, process procedurally punishment. In the first of habeas individual might be Doones- 90 S.Ct. in of Jus- he ob- some- Cole- then trial jail. ser- pri- In is the U.S. as Chief Justice of grand jury testimony. Earl Warren tation of Court, re- courts of last Supreme state Additionally, it would seem that published rendered some 300 sort further misreads Mechanik since declaring that the constitutional opinions in the rule denominated no-consideration by set U.S. minimums certain Burger found of Chief concurrence Justice Bill of interpretations of the U.S. Court support opinion. other as the court’s amendment Rights and the fourteenth The with which this aberration seriousness more de- satisfy are insufficient due-process case law from fairness law. This manding precepts of state considered, subsequent by is illustrated Collins continued 1985.” law trend in the number of concerned evaluation Galie, Ju- Post-Incorporation Models symposium articles and comments. journal [Ci- a reversal the conviction. majority opinion not warrant 22. The states: light prior brought defect If the tations.] remedy "Fashioning appropriate problem present. ex- For is not to trial prelimi- arising out of in the harm an error may challenge a defect ample, the defendant stage nary did effect not have jurisdiction of habeas jury, petit the fairness trial before 1-27-125, returned, prior W.S. corpus to trial. Section guilty has been after a verdict 1977; opinion Majority at 373. impossible. [citation].” It could be difficult if not would 160, 163, 15 Survey Review: 1985 dicial State U.S. S.Ct. 39 L.Ed. 657 Rights (1895), statutory provision Constitutional Individual Deci- where no existed sions, (1986). 55 Cin.L.Rev. 317 requiring “such indorsement and authenti cation.” Thoughtful application of opportunity Gallivan, suggested by Supreme Court I “authority” deny do not need ration- Wyoming Jurisdiction Constitu- ally the court’s conclusion. Wyoming The Restraint, tion: v. XX Justice Judicial legislature specifically decided the execu- 159, supra, Land & Water L.Rev. is not tion Through indictment. ei- inapposite progressive persuasion. For ignorance noncompliance ther or willful considering current review other states prosecutor, ignored. the statute was investigato- prosecutorial either both missing, Case law since where else would attributes, Note, ry Reportorial see prepared 67 indictments be explicit in an III Jury, Power the Alaska Grand Alas- contrary dissent, fashion to statute? Gingerich, ka L.Rev. 295 question doubt the deserves further consid- Jury: Century 19th An- Arkansas Grand eration, prosecutors since can surely future Problems, Century swers to 20th Ark. 7-5-104, W.S.1977, follow Replace- § L.Rev. This court should follow ment, then subjected to court examina- long-exis- Constitution and upon presentation 7-5-209, tion W.S. § precedent clearly recognized by tent New Replacement: Wilkins, People

York supra, 68 N.Y. “Indictments found 2d 508 N.Y.S.2d 501 N.E.2d 542. presented by shall be responsibility

The need exercise that foreman to the immediately presence never so now court in the obvious as clear- of the ly portrayed in the current Tenth Circuit filed with the clerk.” case of v. Kilpatrick, supra, United States I find the form-and-substance rule to be 821 F.2d 1456. street, two-way particularly applied as or ignored require- in statutory mandatory Empaneling Jury

J. ments for indictment authen- Engrossment execution and Indictments tication. I would find there is no indict- Argument considering propriety ment statutorily unless executed re- action artificial academic because fashion, quired requirement prop- or the absence a record of what was erly of any waived failure attack on the presented to the may may court that or not Surely lawyer, indictment before trial. one justified except call court, judge, one one clerk one jury obviously prelimi- intended avoidance foreman proper can combine assure exe- hearings. nary majority presume The va- singularly oppressive person- cution of this from while a lifetime nurtured in lidity, al-liability compar- document. A cynicism, not unfair fortified by fact-denying secrecy, profess unsigned I ison would be the doubt. affidavit for issuance arrest search warrant. not as simplistically will excuse statu- State, decidendi ratio of Kirkland v. tory compliance indictment execu- (1923), Fla. So. 502 of failure to process. tion In this drumhead race to object prior to indictment trial one indictment, attenuated the pre-appearance scarcely applied authority case can prepared indictments included typed this improperly case to or 94 executed phraseology the statutory “a true bill” en- criminal-charge documents. See State v. requirement dorsement for fore- DeBoard, 194 S.E. W.Va. man. symptomatic This status is Burnette, and State v. 118 W.Va. operation entire where the State denies its Wyoming statutory obligation S.E. 905 as the is hid- secrecy. “may,” den in statute does Why say says should but compli- a rule 7-5-106, W.S.1977, ance non sequitur be a “shall” in prosecutor still § when impale says statute, waiver and present harmless error “shall” in States, W.S.1977, defendant? Cf. 7-5~104(c), Frisbie v. Replacement: § provided by found as “If an indictment is SWORD, foreman of Appellant

this section the Donald G. indictment (Defendant), endorse jury shall sign shall ‘A True Bill’ and words indictment.” Wyoming, The STATE of (Plaintiff). Appellee IV. CONCLUSION No. 86-28. conclusion, I conform with the cannot exculpated by majority, result Wyoming. Supreme Court of Campbell grand jury saga of seeing the Nov. figment of the phantom or a County as a that vortex imagination of those drawn into There were real disputation.

of societal events, invoking involving cri-

people, real Constitution, with real conse-

teria of a real Hennigan, now re- Although

quences. confinement, hardly be can

leased providing future

expected individually to be challenge sorry history in

guidance, I this recurrence, contemplation of when

uneasy us, citizens, might any other

any of en- entrapped within the

improvidently rel-

circling perceive web. I with historical the framers of the

evance to the efforts of Constitution, that their endeav- are at composing that document

ors aspect denied effec-

least now be securing poster-

tuation civil liberties

ity.

I conclude that this court was mistaken summary denial of writs certiorari afforded a prohibition which would have opportunity expeditious

much earlier operation analyzed and considered County grand jury in con- Campbell perspective. historical

stitutional

Now, appeals nine filed and thousands later, perspectives of the the societal

words

justice-delivery system demonstrated past Campbell County events cannot be

ignored for future standards. prayer appeal,

In accord with the The confine- reverse the conviction.

would served, Hennigan has been

ment time jeopardy resolves the commutation

from retrial.

Case Details

Case Name: Hennigan v. State

Court Name: Wyoming Supreme Court

Date Published: Nov 16, 1987

Citation: 746 P.2d 360

Docket Number: 86-82

Court Abbreviation: Wyo.