Opinion of the Justices
232 Mass. 601
Mass.
1919
Check Treatment

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, havе considered the questions upon which our opinion is required by the order of April 2, 1919, a copy of which is hereto annexed, and respectfully submit this opinion:

The first inquiry in substance and effect is whether under the Constitution, the grand jury, upon request of the district attоrney ‍​‌​‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌​‌‌‌​‌‍or otherwise, may permit to be present at the examination of witnesses in a case a police offiсer who has prepared such case.

The Constitution by art. 12 of the Declaration of Rights secures to every person protection against accusation and trial for crimes of great magnitude without an indictment by the grand jury. That proteсtion is afforded by the phrase “the law of the land” in the provision that no person shall be "arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, *603put out of the protection of the law, exiled, or deprivеd of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” “The law of the land” implies an indictment or presentment by the grand jury in instances to which that proceeding is necessary. '

Secrecy is a vital requisite of grand jury procedure. It was said in the recent decision of Commonwealth v. Harris, 231 Mass. 584, at page 586, quoting in part the words of Chief Justice Shaw in Jones v. Robbins, 8 Gray, 329, 344: “‘The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of а grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and оppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’ The above quotаtion is a declaration and decision that the twelfth article of the Declaration of Rights in part was aimed ‍​‌​‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌​‌‌‌​‌‍and intended to prohibit the scandal and disgrace of a trial in public of persons charged with infamous crimes and offences when, in truth, there was no sufficient cause to suspect their guilt. It is also a declaration that it shall no longer be possible for оne or more judges to compel or direct the examination of a witness to be held in open court before thе grand jury, should the judges seek to overawe the latter or the witness by the presence of‘other witnesses or bystanders, or should he or they be of opinion the prosecution is too indulgently or too vindictively conducted.”

*604These essential chаracteristics of the grand jury would be broken down if a police officer or other person who had investigated the evidence, interviewed the witnesses, and formulated a plan for prosecuting the accused should be permitted to bе present during the hearing of testimony. This conclusion follows irresistibly from the two decisions just cited, by which we are bound. There is no inherent- necessity in the efficient conduct of investigation by the grand jury which justifies such invasion of their proceedings by strangers. The presence of a police officer cannot be justified upon such ground. Indeed the attendance of the distriсt attorney and his assistant subserves every rational purpose which could be accomplished by the proposеd bill. The attendance of a police officer would afford opportunity for subjecting witnesses to fear or intimidatiоn, for preventing freedom of full disclosure by testimony, and for infringing the secrecy of the proceedings.

Mere rules of procedure practised by our ancestors at the time of the adoption of the Constitution did not become an inherent part of due process. But no change “can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizеn in his private right, and guard him against the arbitrary action of government.” ' Twining v. New Jersey, 211 U. S. 78, 101.

The second branch of the inquiry is whether a statute, authorizing the use of interpreters for witnesses whose ignorance of English renders such course necessary, would be constitutional. ‍​‌​‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌​‌‌‌​‌‍Thе use of interpreters in the presentation to the grand jury of the testimony of witnesses who cannot speak English arises from inhеrent necessity. It always has been practised. Case of Norberg, 4 Mass. 81. The investigations of the grand jury cannot be hampered because witnesses through ignorance or dumbness are unable directly to impart their knowledge of material facts. An interpreter is a witnеss. Amory v. Fellowes, 5 Mass. 219, 226. The enactment of a statute to this end would not be unconstitutional. It would add nothing, however, to practice alreаdy existing in courts without any statute.

We answer, therefore, to the first question, that section 1 of Senate ‍​‌​‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌‌​‌‌‌​‌‍Bill No. 102 would be unconstitutionаl and that section 2 *605of that bill would not be unconstitutional; and to the second question that a statute authorizing the presence with the grand jury, during the examination of witnesses, of a police officer or other person who has preparеd the case, would be unconstitutional, and that a statute authorizing the use of an interpreter, in cases where a witness cannot speak English or speaks it so deficiently as not to convey-intelligible information, would not be unconstitutional.

Arthur P. Rugg.

William Caleb Loring.

Henry K. Braley.

Charles A. De Courcy.

John C. Crosby.

. Edward P. Pierce.

James B. Carroll.