Lead Opinion
Prohibition to prevent the enforcement of orders of respondent authorizing Earl H. Schrader, Jr. (hereinafter referred to as defendant), to inspect and copy the minutes of the Grand Jury of Jackson County which found two indictments against him. Separate writs in each case have been consolidated.
Defendant, an Assistant Prosecuting Attorney of Jackson County, was indicted on a charge of soliciting a bribe of $2,500 for the purpose of secreting information concerning an alleged abortion and preventing any investigation or prosecution therefor; and was also indicted on a charge of perjury in testifying before the Grand Jury concerning the solicitation of the $2,500. In each case, defendant filed a motion for an order granting inspection of the minutes of the Grand Jury, stating the names of the witnesses endorsed on the indictments and saying that the inspection requested may obviate the necessity of taking depositions of these same witnesses. In each motion it was also alleged:
“2. Defendant has reason to believe and alleges that unauthorized persons were unlawfully permitted to be present by the Grand Jury while said witnesses were testifying and when the Grand Jurors expressed their opinions with respect to the inquiry by said Jury concerning this defendant and the alleged offense.
“3. Defendant has reason to believe and alleges that the evidence on which the Grand Jury returned the indictment against him herein was insufficient upon which to base such indictment and was illegal.
“4. Defendant desires, and is entitled, to inspect the minutes of the Grand Jury with respect to the testimony given by all of the above witnesses and the proceedings occurring during their examinations, in order to lay the basis for his contemplated motion to dismiss the indictment upon the ground that the evidence before the Grand jury on which it was based was insufficient or illegal.”
Relator contends these orders violate the secrecy imposed by law on grand jury proceedings and call for production and inspection of matters not admissible in evidence; and therefore claims they exceed the jurisdiction of respondent. It should be noted that there is a difference between the secrecy requirements for witnesses testifying before the grand jury and those for grand jurors. Mannon v. Frick,
This was settled in Ex parte Welborn,
“It is earnestly insisted that considerations of public policy forbid the taking of the deposition of a witness who has appeared before the grand jury, and whose name is indorsed upon the indictment. Counsel invoke the old common-law rule in support of their position.
“One of the announced purposes of the common law in cloaking with secrecy the proceedings of the grand jury was the prevention of the subornation of perjury to meet the Crown’s evidence, and this is strongly urged upon our consideration. That was a part of a system which denied the defendant counsel, kept him in close confinement until the hour of trial, refused him the right to call witnesses, sent juries to jail for returning verdicts of acquittal, and which, in short, was devised to convict the accused rather than to try the truth of the charge against him. In many respects, including the feature now pressed upon our attention, the rule in England has been changed by statutes (6 &7 Will. 4 c. 114, § 4; 11 & 12 Vic. c. 42; 30 & 31 Vic. c. 35) under which a criminal*282 trial bears greater resemblance to a legal proceeding. * * *
“It is urged that since petitioner testified before the grand jury he cannot give his deposition without violating the oath he took as a witness before that body. The oath administered to witnesses before grand juries (section 5070, R.S.1909) binds them, among other things, not to disclose any fact concerning which they 'shall here testify, unless lawfully required to testify in relation thereto.’ It is obvious that if there is no other legal obstacle save the clause of the oath quoted, it does not prohibit the taking of petitioner’s deposition, provided his being compelled to give his deposition is equivalent to his being ‘required to testify.’ * * * These authorities and the ordinary and accepted meaning of the word ‘testify’ convince us that the oath taken before the grand jury constitutes no obstacle to the taking of petitioner’s deposition.”
It was pointed out in the Welborn case that our statutes require disclosure of the State’s witnesses in a criminal case by requiring them to be endorsed on indictments and informations and afford accused the opportunity to find out their testimony at a preliminary hearing or by deposition, “upon the theory that truth has nothing to fear from light.” (As to preliminary hearings see Secs. 544.270, 544.280.) It should also be noted that the requirement of endorsement of witnesses on the indictment was enacted in 1879 (see Sec. 1802, R.S. 1879) and that the disqualification of a person on trial in a criminal case to testify in his own behalf was not removed until 1877. (Laws 1877, p. 356; see also R.S. 1855, p. 1191, Chap. 127, Sec. 16, also p. 1577, Chap. 168, Sec. 6.) Thus we retained some of the common law system of criminal procedure, described in Ex parte Welborn, during the first half century of statehood and this may explain the strictness of our early decisions. Orfield, Criminal Procedure from Arrest to Appeal, pp. 349-350, 459-460. A more recent development is the enactment of provisions authorizing a stenographer or the official reporter of the circuit court to take down and transcribe evidence given before the grand jury. Secs. 56.190, 56.560, 540.105. This removes the objection noted in State v. Thomas,
We have indicated in State v. Pierson,
However, we think the orders were too broad and in excess of jurisdiction in authorizing inspection as to “all proceedings which transpired during the course of their presence (defendant and the witnesses) in the grand jury room, or in connection with their testimony before the grand jury.” In State v. Grady,
Defendant refers to grounds 2, 3 and 4 of his motion hereinabove set out and says they were intended to lay a foundation for his motion to dismiss the indictments on the grounds that the evidence on which they were based was insufficient or illegal and that unauthorized persons were present in the grand jury room during its proceedings and deliberations. In State v. Grady,
Dissenting Opinion
(dissenting).
I find myself unable to concur in the breadth and scope of this relinquishment of the secrecy of grand jury proceedings, even though this case is one in prohibition, wheye our review is limited. We may concede that there has been some erosion of the rigid, common-law rule of grand jury secrecy, and that some discretion now rests in the appropriate court. 23 C.J.S. Criminal Law § 9S6, and cases cited. But the extent to which this invasion of secrecy is permitted varies widely from court to court and from state to state; it by no means follows that a defendant in the ordinary criminal case is entitled to an inspection of the minutes or to a transcript of the testimony of the prosecution witnesses. Even in New York where the right is permitted to a greater or less degree under a statute relating to the quashing of indictments, it is held that the power should be exercised sparingly. People v. McCann,
Our statutes have been reviewed in the principal opinion. The discretion which the trial court has may be said to arise from our statutory provisions. State v. Thomas,
The courts of Missouri have never before, in my opinion, approached even close to such a release of the secrecy as here ensues. Missouri has legislated on the subject of grand juries since 1835 (R.S.1835, pp. 478-481), but the legislature has never seen fit to authorize such a disclosure as this, though it has enacted much more limited ones. The only possible legislative sanction for the present opinion is the ambiguous exception “unless lawfully required to testify * * To me, this is not a carte blanche authorization to the trial courts to discard all secrecy not expressly preserved by statute. The public generally has proceeded upon the usual lay assumption that grand jury proceedings are secret, as indicated in the statutory oaths themselves. The courts are not primarily policy-making bodies. In my opinion so broad a turn-around on an issue affecting the public interest should await legislative sanction.
One reason for the rule of secrecy is “to promote a complete freedom of disclosure” by grand jury witnesses. Mannon v. Frick,
It has been authoritatively stated that the right to inspect the minutes may only be granted where it is sought in order to enable an accused to move to dismiss the indictment. 23 C.J.S. Criminal Law § 956, pp. 266-267; In re Martin,
It may also be noted that the principal opinion suggests no guides or standards for the trial court in the exercise of its discretion. Perhaps it may not do so in prohibition, and perhaps no precise standards can be fixed; we may ask, however, in order to pose the problem: is the matter to be ruled on the fact that the defendant is poor and cannot afford depositions? Shall it depend upon the number of witnesses heard, or upon the nature, seriousness, or complexity of the criminal charge, or upon the fact that defendant himself did or did not testify before the grand jury? Shall transcripts be furnished in every case where the accused merely alleges some illegal procedure in the grand jury process? We may rely, theoretically at least, upon the exercise of a sound discretion, but it seems to me that the ruling here may well be taken as a mandate that the trial courts should grant inspections in substantially all criminal cases prosecuted by indictments. If so, the grand jury function will be irreparably impaired, and perhaps should be abolished, in so far as it is an instrument for the making of criminal accusations. Some seem to regard it now as virtually useless. Blake v. State,
If a literal stenographic transcript of the testimony of a defendant and of the witnesses endorsed on the indictment is furnished to the defendant it is most likely, and indeed almost certain, that it will contain colloquies, interrogations and remarks by grand jury members and expressions of their opinions, any and all of which would violate, directly or indirectly, the prohibitions of § 540.310. Some measure of prevention might be attained if the trial judge should completely “censor” such a transcript. The remark of Mr. Justice Brennan, dissenting in Pittsburgh Plate Glass Co. v. United States, 79 S.Ct. loc. cit. 1245, supra, that “the names of the grand jurors asking the questions can be excised,” does not impress me as an effective cure. Grand jury proceedings are often conducted somewhat loosely, according to judicial standards, and not under the strict evidentiary procedure of trials; thus, it may well prove impossible in many instances to furnish a complete transcript of the required testimony without including matters which are thus forbidden. At best, the censorship would impose an enormous burden on the trial courts. The principal opinion seems to recognize that nothing should be furnished which would constitute “testimony not admissible in evidence.” The elimination of that alone would often necessitate a sort of ex parte “pre-trial,” but not a “hearing,” for no one would he heard.
Then, too, it appears that the censoring of the transcript, or excising of certain portions, would involve an exercise of discretion by the trial court which the defendant might be entitled to have reviewed on appeal after conviction. This leads to the question: could the defendant properly present such a point to the appellate court if he did not have access to the entire transcript ? He would have the burden of demonstrating error. On the other hand the Supreme Court could not arbitrarily deny a review of the trial court’s discretion by rule or otherwise, and thus make the action of the trial court conclusive, since this would be a limitation on the right of appeal, a thing prohibited by the constitutional grant of rule-making power. See Art. V, Sec. 5, V.A.M.S.Const. I do not think we should take this step unless we are prepared to go all the way.
We need not, and probably may not, say here just where the line should be drawn in releasing or not releasing grand jury minutes and transcripts. The ultimate question
In my view there has been no such showing of “particularized need” or of any compelling necessity for the protection of fundamental rights, as to reach the place where the court might exercise a discretion in the premises. I would make our rule in prohibition absolute.
I respectfully dissent.
Rehearing
On Motion for Rehearing
In its motion for rehearing and suggestions in support relator assumes we
Relator’s main contention on rehearing is that we have failed to consider relator’s point IA, namely, that there is no provision either in the common law, statutes or Supreme Court rules authorizing the court’s order and that respondent was therefore without jurisdiction to make it. We did consider it and held there was no authority for such a broad order as respondent made and prohibited its enforcement but held that he had discretion to make certain parts of his order. Relator, however, contends that, even as to these parts, we have allowed an order for inspection for the purpose of discovery of evidence and that this is in conflict with our ruling in State ex rel. Phelps v. McQueen, Mo.Supp.,
However, as held in the McQueen case (296 S.W.2d loe. cit. 89), relator-had the burden to show that respondent exceeded his jurisdiction in this respect. In this
Our view is that a new order should be made to comply with our ruling to carefully limit inspection to such parts of the transcript of the testimony as would be relevant and material at the trial; and that the suggestion in the separate concurring opinion of Dalton, J., should be followed for respondent to review the exercise of discretion involved so as to require disclosure only of such parts of the transcript of the testimony as to which inspection may-be deemed essential to meet the ends of justice.
The motion for rehearing is overruled.
Concurrence Opinion
(concurring).
I concur in the opinion of HYDE, J., although I am in full agreement with some of the views expressed in the dissenting opinion of EAGER, J.
Even though the order of the trial court (to the extent permitted to stand by the majority opinion) may have been inadvertently entered without an adequate showing of record to fully sustain it, nevertheless I believe the trial court did not exceed its jurisdiction or act without jurisdiction in entering the portion of the order now permitted to stand.
Since the entire former order of the trial court will no doubt be set aside in order to enter a new order in conformity to the majority opinion of this court, the trial court in view of the views expressed by the members of this court may yet require a more adequate showing of necessity or other valid grounds for the entering of such a new order as may be within the trial court’s jurisdiction.
Further, in this connection it should be said that, while an abuse of discretion in entering an improper order against a defendant in a criminal case may be remedied on appeal, an abuse of discretion against the state is usually without a remedy.