State v. Edmonson

743 P.2d 459 | Idaho | 1987

743 P.2d 459 (1987) 113 Idaho 230

STATE of Idaho, Plaintiff-Respondent,
v.
Eric Roy EDMONSON, Defendant-Appellant, and
Bill J. Blackmon, Defendant.
STATE of Idaho, Plaintiff-Respondent,
v.
Eric Roy EDMONSON, Defendant-Appellant.

No. 16332.

Supreme Court of Idaho.

May 29, 1987. Rehearing Denied September 30, 1987.

Ned A. Cannon of Smith & Cannon, Lewiston, and John S. Ransom (argued), of Ransom, Blackman & Simson, Portland, Or., for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol.Gen. (argued), Boise, for plaintiff-respondent.

DONALDSON, Justice.

Eric Roy Edmonson was indicted by a grand jury in Latah County on the following charges: racketeering; grand theft; conspiracy to engage in racketeering; conspiracy to engage in grand theft; and the falsification of corporate books and records. Edmonson filed a barrage of motions raising a number of constitutional and procedural arguments alleging error in the grand jury indictment and requesting the indictment be set aside. After a hearing, the district court issued an opinion denying the motions. Permission to appeal by certification was granted.

On appeal Edmonson raises five specific arguments, as to why dismissal of the indictment is required. They are:

1. The prosecutor's use of the grand jury to indict was not based on any systematic set of criteria and therefore violates the Equal Protection Clause of the Idaho Constitution.

2. The prosecutor's use of hearsay evidence is contrary to I.C. § 19-1105 and I.C.R. 6(f).

3. The prosecutor's comments on the evidence infringed on the grand jury's ability to exercise its independent judgment and therefore violates the due process clause of the Idaho Constitution.

4. Contrary to statute, unauthorized personnel were present during the grand jury sessions.

5. I.C. § 18-1905 (the falsification of corporate book statute) is unconstitutional on its face.

We reject all of Edmonson's contentions and affirm the trial court's findings. We will discuss each argument separately and any additional facts as necessary.

I

Equal Protection

Edmonson contends that the use of a grand jury in this case deprived him of the equal protection of the laws in violation of art. 1, § 2 of the Idaho Constitution. Essentially, relying on several Oregon Supreme Court cases, he argues that the system used in Idaho allowing the prosecutor unfettered discretion to initiate criminal proceedings by indictment or information without regard to any systematic or coherent policy violates a defendant's right to equal protection. Here, two other co-defendants were charged by information rather than by indictment. Since the prosecutor did not have any systematic coherent policy to decide when to proceed by indictment or information, but rather arbitrarily made that decision, Edmonson contends that he was denied the same rights as his co-defendants, namely the right to a preliminary hearing.

Art. 1, § 8 of the Id. Const. provides:

"§ 8. Prosecutions only by indictment or information. — No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger; provided, that a grand jury may be summoned upon the order of the district court in the manner provided by law, and provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor."

Thus, the prosecutor can use either a grand jury proceeding or a preliminary hearing before an impartial magistrate to initiate criminal proceedings. However, the rights afforded the accused in these proceedings are different. A proceeding initiated by information entitles the accused the right to a preliminary hearing before an impartial magistrate to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it. Id. Const., art. 1, § 8; I.C. § 19-804; I.C.R. 5.1(b); State v. O'Mealey, 95 Idaho 202, 506 P.2d 99 (1973). The accused has the right to assistance of counsel, (I.C. § 19-809); the right to produce evidence, (I.C. § 19-809), State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971); and the right to cross-examine adverse witnesses, (I.C. § 19-808). These procedures allow an accused to contest the prosecutor's evidence and the right to a finding of probable cause by an impartial and detached judicial officer.

In contrast, an indictment by a grand jury does not afford the accused a right to a preliminary hearing. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939). Only the prosecutor and witnesses under examination may be present during the grand jury proceeding. I.C.R. 6(d). Further, the grand jury is not bound to hear evidence presented by the defendant; however, it is required to weigh all evidence submitted to it, and can require additional evidence when necessary. I.C.R. 6(g).

Edmonson relies on a series of Oregon cases starting with State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), cert. denied, 454 U.S. 1084, 102 S. Ct. 640, 70 L. Ed. 2d 619 (1981), continuing with State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981), and State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983), to support his argument that a prosecutor must afford all similarly situated defendants equal treatment of the laws. In Clark and Edmonson, the defendants were charged by indictment and not afforded a preliminary hearing. They did not request a preliminary hearing, but on appeal argued that a denial of a preliminary hearing violated their rights to equal protection of the laws because other potential defendants charged with the same crime could be charged by an information and allowed a preliminary hearing. The Oregon Supreme Court rejected this contention, noting that its constitution provides for alternative charging methods (information with a preliminary hearing or indictment without one) which are capable of valid administration. However, the court held that a choice between indictment and information must "rest on meaningful criteria that indeed make the privileges of a preliminary hearing equally available to all persons similarly situated... ." Edmonson, supra, 630 P.2d at 823. In other words, the equal protection clause of the Oregon constitution prevents the prosecutor from arbitrarily chosing to proceed by indictment or information, but instead, requires the choice be made on a coherent, systematic basis. The court upheld the indictments because both Clark and Edmonson failed to show that other defendants in the same situation would be afforded a preliminary hearing.

In Freeland, the defendant was indicted by a grand jury and then requested a preliminary hearing. After it was denied, he filed a motion asking for a hearing in which to show that the denial of the preliminary hearing did not meet the Clark and Edmonson standards. At the hearing, the district attorney stated that the decision to proceed by indictment or information was left up to the individual trial deputy. The trial court then held that such an ad hoc procedure did not meet the constitutional requirements as set forth in Clark and Edmonson. The Oregon Supreme Court affirmed. The court framed the test as "whether a prosecutor's use of the two charging procedures adheres to sufficiently consistent standards to represent a coherent, systematic policy, even when not promulgated in the form of rules or guidelines." Freeland, supra 667 P.2d at 515.

In summary, the Oregon Constitution, like the Idaho Constitution, provides for alternative charging procedures, either by indictment or by information. If an information is used, the defendant has a right to a preliminary hearing. Like the Idaho Constitution, the Oregon Constitution does not, on its face, place any limitation on the prosecutor's choice to proceed by either alternative. In Oregon, however, the state Supreme Court has ruled that the state's equal protection clause does require the prosecutor to treat similarly situated defendants equally. This is best accomplished by a pre-established, "coherent, systematic policy" under which the prosecutor will be limited in the choice to proceed by indictment or information.

Edmonson urges us to adopt the reasoning of the Oregon Supreme Court. We refuse to do so.

We note that Edmonson did not request a preliminary hearing. He simply argued that the prosecutor must have a systematic set of criteria to base a decision on in order to proceed by indictment or information. As noted above, however, one substantive difference in the indictment and information procedures is the right to a preliminary hearing when an information is used. Edmonson's failure to request a preliminary hearing is dispositive of this case. However, based on the important constitutional issues at stake, we will address the arguments raised by Edmonson.

It is a well settled rule that an equal protection analysis comes into play when a statute — a legislative enactment — creates two classes of individuals who are treated differently. See Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972). In this case, we have two constitutional provisions that need to be construed together, Art. 1, § 8 allows for alternative charging procedures which are of equal dignity. In re Winn, 28 Idaho 461, 154 P. 497 (1916). Art. 1, § 2 guarantees equal rights, privileges and immunities to all persons within the state. Fisher v. Masters, 59 Idaho 366, 83 P.2d 212 (1938). The appellant argues that art. 1, § 2 is a limitation of art. 1, § 8. We disagree. When construing separate constitutional provisions, the general principles of statutory construction apply. Lewis v. Woodall, 72 Idaho 16, 236 P.2d 91 (1951). Statutes must be construed, if at all possible, consistently and harmoniously. State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1327, 79 L. Ed. 2d 722 (1984). Either of the two alternative charging procedures can be used, but will be subject to an equal protection analysis.

Edmonson will have us require that a prosecutor establish charging criteria to insure that similarly situated defendants are treated equally. He argues, that in this case, because he was charged by indictment whereas several other co-defendants were charged by information, he was arbitrarily and systematically excluded from the right to a preliminary hearing.

First we note that the United States Supreme Court has held that a state's refusal to afford a criminal defendant a preliminary hearing does not violate the fourteenth amendment through the fifth amendment. Lem Woon v. Oregon, 229 U.S. 586, 33 S. Ct. 783, 57 L. Ed. 2d 1340 (1913). In a slightly different context (whether a person arrested and held for trial is entitled to a judicial determination of probable cause for detention), the Supreme Court also has held the fourth amendment did not apply. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). As the Court stated in Gerstein:

"The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that the confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause." Id. at 121-122, 95 S. Ct. at 867 (footnotes omitted).

Even an informal procedure in which an accused is not given the right to contest the state's evidence, or even put on his own evidence is not per se constitutionally infirm. See Lem Woon, supra; Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962). The primary purpose of a grand jury proceeding is to also determine probable cause. State v. Beck, 56 Wash.2d 474, 349 P.2d 387 (1960), aff'd. Beck v. Washington, supra.

We are fully cognizant that Edmonson urges us to require prosecutors to adopt policies guaranteeing equal protection for all similarly situated criminal defendants. In essence, cloaked under an equal protection challenge, we are asked to place a limit on prosecutorial discretion. This, the Oregon Supreme Court has done, but in this context we cannot do.

The grand jury is an accusing body and not a trial court. Its functions are investigative and charging. The purpose of both a grand jury proceeding and a preliminary hearing is to determine probable cause. Any advantage that a preliminary hearing affords a defendant is purely incidental to that purpose. The independent grand jury's function would be duplicated by requiring a subsequent preliminary hearing.

Professors LaFave and Israel have discussed prosecutorial discretion and noted many valid reasons why a prosecutor may choose to proceed by either alternative:

"As a general rule, prosecutors in information jurisdictions make infrequent use of their authority to avoid preliminary examinations by utilizing the indictment alternative. The tradition in most information jurisdictions is to prosecute by information in all but a very small group of cases that require the grand jury's investigative authority. Prosecutors in several information states do make more frequent use of the grand jury, but even in those jurisdictions most prosecutors use the information in over 90% of their felony cases. In most information states, when a prosecutor uses the indictment process his basic objective is not to avoid the preliminary hearing, but to utilize some other feature of the indictment process. The mooting of the preliminary hearing is simply an incidental byproduct of an unrelated objective that required pre-arrest indictment.

"But prosecutors in other information jurisdictions have been known to use the indictment alternative in certain cases mainly because they want to avoid the preliminary hearing. Grounds typically advanced for avoiding the hearing in those cases, notwithstanding the prosecutor's usual preference for prosecution by information, include: (1) the desire to save time where the preliminary hearing would be protracted due to the number of exhibits or witnesses or the number of separate hearings that would have to be held for separate defendants (the grand jury could save time in such situations due to the absence of cross-examination, less stringent application of evidentiary rules, and its capacity to consider a series of related cases in a single presentation); (2) the desire to preclude the defense discovery inherent in a preliminary hearing, particularly where a key witness is an informer whose identity should be shielded until trial; and (3) the desire to limit the number of times that a particular complainant (e.g., a victim of a sex offense) will be required to give testimony in public." 2 LaFave and Israel, Criminal Procedures § 14.2 (1984).

There are a number of other factors which may influence the prosecutor's choice of indictment or information. Uncertainty of the law, credibility of witnesses, the winds of public opinion, the nature of the offense, publicity surrounding the crime and the resources of investigation are just some of these factors. We accept the above reasoning as persuasive and hold that a prosecutor may proceed by either alternative — indictment or information.

However, this holding is not as broad as it seems. Edmonson contends that, as to him, the law was applied unequally. For Edmonson to prevail on this point, he must show a deliberate and intentional plan of discrimination against him, based on some unjustifiable or arbitrary classification. State v. Bowman, 104 Idaho 39, 655 P.2d 933 (1982). Selective discrimination is difficult to prove.

"Selective enforcement, without more, does not comprise a constitutional violation under either the Idaho or United States Constitutions. [Citations omitted.] The United States Supreme Court and Idaho Supreme Court are in perfect accord in their requirement that, in order to establish an instance of discriminatory application of the law such that equal protection standards have been violated, there must first be shown a deliberate plan of discrimination based on some unjustifiable classification such as race, sex, religion, etc." Henson v. Department of Law Enforcement, 107 Idaho 19, 23, 684 P.2d 996, 1000 (1984).

Edmonson has not shown, nor even contended discriminatory intent by the prosecutor in respect to the charging selection. The prosecutor did choose to allow similarly situated defendants a preliminary hearing, but without more evidence of a deliberate and intentional plan to discriminate, we cannot conclude that the equal protection clause was violated.

In a similar context, a prosecutor has some discretion in deciding when to charge an accused. As LaFave and Israel points out, "[t]he notion that the prosecuting attorney is vested with a broad range of discretion in deciding when to prosecute and when not to is firmly entrenched in American law." 2 LaFave and Israel, Criminal Procedures § 13.2 (1984). The prosecutor's exercise of discretion as to whom and when to prosecute does not constitute unlawful discrimination. State v. Bowman, supra; State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980). There is a distinction between the permissible "conscious exercise of some selectivity in enforcement" and an impermissible selection "deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962). We do not see any constitutional distinction between deciding whom to charge and how to charge. The immense number and variety of factual situations involved preclude a constitutional requirement forcing the prosecutor to adopt policies that predetermine the use of an indictment or an information.

II

Presentment of Hearsay Evidence to the Grand Jury

Edmonson, relying on I.C. § 19-1105 and I.C.R. 6(f), argues that the indictment should be dismissed because hearsay evidence was presented to the grand jury. I.C. § 19-1105 provides in part:

"The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence, ..."

Similarly, I.C.R.6(f) places like restrictions upon the nature and quality of evidence the grand jury can receive. The trial court found that hearsay evidence had been presented to the grand jury but that "exclusive of the hearsay there was adequate evidence to support the grand jury's determination that there was probable cause to believe an offense had been committed and the accused committed it." Edmonson does not challenge this finding. Thus, the issue that we face today is whether the grand jury's receipt of hearsay evidence demands a dismissal of an indictment even where the probable cause finding is based on otherwise legally sufficient evidence.^[1]

Several states have rules similar to Idaho, thereby excluding hearsay evidence before a grand jury. See for example, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981); State v. Miyazaki, 64 Haw. 611, 645 P.2d 1340 (1982); State v. Terrell, 283 N.W.2d 529 (Minn. 1979); People v. Backus, 23 Cal. 3d 360, 152 Cal. Rptr. 710, 590 P.2d 837 (1979); and Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973). However, the presentation of hearsay evidence is not necessarily a fatal error. The indictment will be sustained if, after excluding the inadmissible evidence, there remains sufficient admissible evidence to indict. Giacomazzi, supra; Miyazaki, supra; Terrell, supra, Franklin, supra. See also, People v. Meegan, 60 A.D.2d 961, 401 N.Y.S.2d 602 (1978), People v. Skelton, 109 Cal. App. 3d 691, 167 Cal. Rptr. 636 (1980), cert. denied, Curtin v. U.S., 450 U.S. 917, 101 S. Ct. 1361, 67 L. Ed. 2d 343 (1981); and State v. Waste Management of Wisconsin, Inc., 81 Wis. 2d 555, 261 N.W.2d 147 (1978), cert. denied, 439 U.S. 865, 99 S. Ct. 189, 58 L. Ed. 2d 175 (1978).

The rationale used by these courts is readily apparent. The purpose of a grand jury proceeding is to determine whether sufficient probable cause exists to bind the defendant over for trial. The determination of guilt or innocence is saved for a later day. As long as the grand jury has received legally sufficient evidence which in and of itself supports a finding of probable cause it is not for an appellate court to set aside the indictment. Therefore, we reject Edmonson's argument and hold that where legally sufficient evidence will sustain an indictment, improperly admitted hearsay evidence will not overturn the indictment.

III

Outrageous Conduct of the Prosecutor

Edmonson argues that the prosecutor's conduct before the grand jury was so "outrageous" that dismissal of the indictment is required. Apparently, Edmonson takes exception to the prosecutor's comments regarding the credibility of witnesses and the weight and sufficiency of the evidence. Further, he alleges that the prosecutor argued the case fervently before the grand jury.

The trial court acknowledged that the prosecutor commented on the sufficiency of the evidence and on the credibility of the witnesses, but "the prosecutor's conduct did not infringe on the grand jury's decision-making function." Thus, we must decide whether the prosecutor's misconduct crossed the line from acceptable to unacceptable. Generally, prosecutorial misconduct will require dismissal only when it reaches the level of a constitutional due process violation. Maldonado v. State, 93 N.M. 670, 604 P.2d 363 (1979); State v. Hall, 235 N.W.2d 702 (Iowa 1975), appeal after remand, 249 N.W.2d 843 (Iowa 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 66, 54 L. Ed. 2d 79 (1977). In order to be entitled to dismissal of an indictment on due process grounds, the defendant must affirmatively show prejudice caused by the misconduct. State v. Kruse, 100 Idaho 877, 606 P.2d 981 (1980); Hall, supra. We note that dismissal is a drastic remedy and should be exercised only in extreme and outrageous situations, and therefore, the defendant has a heavy burden.

In the sense of a grand jury proceeding, "prejudicial effect" means the defendant would not have been indicted but for the misconduct. Hall, supra; People v. Jackson, 64 Ill. App. 3d 307, 21 Ill. Dec. 238, 381 N.E.2d 316 (1978). To determine whether misconduct gives rise to a dismissal, a reviewing court will have to balance the gravity and the seriousness of this misconduct with the sufficiency of the evidence supporting the probable cause finding. At one extreme, the misconduct can be so outrageous that regardless of the extent of probable cause evidence, dismissal will be required. At the other extreme, the misconduct may be so slight, that it becomes unnecessary to question the independent judgment of the grand jury. In the middle of these extremes, the court must examine the totality of the circumstances to determine whether the indictment should be dismissed. As stated above, the burden rests with the criminal defendant to make an initial showing that the misconduct rises to the level of prejudice. Absent the showing of prejudice, a reviewing court will not second guess the grand jury. However, once the defendant does affirmatively prove prejudice, the court must dismiss.

A review of the alleged misconduct leads us to conclude that the prosecutor's actions and comments, though inappropriate is so insignificant that we do not need to inquire into the strength of the probable cause evidence. Edmonson argues that the prosecutor's statements regarding the evidence are misconduct. Some of these statements are:

"So, you're going to treat or you're going to view a person who is in a position of responsibility, a supervisor, a director, a department head, significantly different (than an hourly employee)."

"What he's doing, he is stealing the money himself .. . Once again, this is a situation where he stole from a corporation in the State of Idaho and caused an effect in the State of Idaho."

"Not a lot of events happened prior to mid-January of 1983, and a lot of these events, while in and of themselves are not illegal, they are, when taken as a whole, significant. Particularly in light of your instructions on conspiracy. Okay? No we have to start with the point of departure that there was a desire on the part of Mr. Blackmon and a desire on the part of Mr. Edmonson as early as July of 1982, to seat a progressive board of directors. You have to start with that article of faith in order for this to work, I think."

"So, Mr. Edmonson is at least down in Oklahoma City with some money in his pocket buying some money orders and then either sending or bringing those money orders back to Moscow for submission for memberships."

"You have Mr. Scott's transcript. Judge for yourself his credibility and his veracity as far as that event is concerned."

"If in fact Eric was putting the touch on all of the department heads to generate money to satisfy what I'm going to call his scheme, then why didn't he bring in Mister Milk toast."

"He conspired with Eric to commit racketeering and that's exactly what they did with that club. They went around the country committing crimes in a variety of states, spreading their activity throughout each voting region with the exception of territory two and they took control of that club. And they did it ... they did it by using the funds of the club itself."

We do not disagree with Edmonson that some of these statements are impermissible. The American Bar Association standards provide that the prosecutor, in his appearances before the grand jury, "should not make statements or efforts to influence grand jury action in a manner which would be impermissible at trial before a petit jury." 1 A.B.A. Standards for Criminal Justice, § 3-3.5 (Second Ed. 1980). However, simply because some of these comments are impermissible, does not automatically require dismissal. Keeping in mind the standard of prejudicial effect, we note that impermissible statements can only rise to this level when they are designed to appeal to juror prejudice or prod a reluctant jury into voting for indictment. See State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975); State v. Good, 10 Ariz. 556, 460 P.2d 662 (1969). Grand jurors realize that the case is being presented precisely because the prosecutor believes the grand jury should indict. They realize that the prosecutor will make statements on the evidence.

The comments alleged to be prejudicial were directed to the grand jury over a period of several days. In our perception, the prosecutor, by the use of these statements, was attempting to explain the law to the jurors. The prosecutor is expected to act as the grand jury's legal advisor, and as such, may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to [the grand jury's] status as an independent legal body." People v. Meyers, 617 P.2d 808, 812 (Colo. 1980), quoting ABA Standards Relating to the Prosecution Function § 3-3.5(a) (1979). While we deem the prosecutor's intent laudable, he overstepped the bounds of permissible conduct. However, we cannot conclude that these statements acted to prejudice the grand jury in any way or infringed upon their independent thought process.

Further, without even considering the evidence used to find probable cause, we note that the prosecutor directed the grand jury that it should not indict unless all the elements of an alleged crime are proven beyond a reasonable doubt. This is a much higher standard than is required by Idaho law. On balance, we conclude that no prejudicial conduct occurred.

IV

Unauthorized Persons

I.C. § 19-1111 and I.C.R.6(d) provide that no person other than the grand jurors may be present during deliberations and voting, while only the jurors, prosecutor, witnesses under examination, and an interpreter, if necessary, may be present during any other portion of the proceedings. These sections break down the grand jury proceedings into two parts, deliberative sessions — sessions where the grand jurors are expressing opinions or voting — and nondeliberative sessions — sessions where the evidence is being presented.

Edmonson seeks dismissal of the indictments because admittedly, during some nondeliberative sessions two individuals not authorized by the statute and rule were present — a deputy clerk of the district court and an attorney with the Idaho Department of Law Enforcement. Edmonson argues that I.C. § 19-1111 and I.C.R.6(d) were violated, and therefore, the indictment must be dismissed.

The purpose of I.C. § 19-1111 and I.C.R.6(d) is quite clear. It is designed to guard the secrecy of the grand jury proceedings and assure that the jurors are free from undue influence and intimidation thereby allowing them to make an independent determination of probable cause. Accordingly, the presence of any unauthorized person which impedes these important functions will require dismissal. However, if an unauthorized person is present, but the grand jury proceedings are free from undue influence, an indictment must be sustained.

Recently the United States Supreme Court case addressed a violation of F.R.C.P.6(d) (the federal counterpart to I.C.R.6(d)) and held that any violation of the rule which is harmless will not require dismissal of the indictment. In United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986), two government witnesses were simultaneously present and testified before the grand jury. This error was not discovered until the actual trial proceedings at which the defendants were convicted. After conviction, the defendants argued that the indictment should be set aside because of the error in the original grand jury proceeding. The United States Supreme Court disagreed, holding that any error from the violation of Rule 6(d) was corrected in the subsequent jury conviction. The Court held that the jury's verdict of guilt beyond a reasonable doubt demonstrated that there was probable cause to charge the defendants with the offenses for which they were convicted. The Court stated:

"We hold only that however diligent the defendants may have been in seeking to discover the basis for the claim violation of rule 6(d), the petit jury's verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation. In such a case, the societal costs at retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings." Id., 475 U.S. at ___, 106 S.Ct. at 943.

Thus, under the federal rule, the presence of an unauthorized person will not render an indictment invalid, if there is sufficient evidence to support a probable cause finding by the grand jury acting independently and free from undue influence. In Idaho, the rule is similar. The presence of unauthorized personnel does not constitute grounds for attacking the validity of an indictment, absent a showing of prejudice. State v. Barber, 13 Idaho 65, 88 P. 418 (1907); Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953). We must inquire whether these two individuals were unauthorized, and if so, whether their presence amounted to prejudice Edmonson.

Edmonson contends that the presence in and of itself of both the deputy clerk and the attorney constitutes grounds for dismissing the indictments. He argues that their presence removes from the grand jury the ability to operate in the neutral and detached atmosphere that is required; the subtle influence of the presence of court and state personnel would necessarily affect the ability of the grand jury to calmly and dispassionately consider the case. Here, the deputy clerk was needed to operate the electronic recording equipment, to mark and keep track of exhibits and to perform other administrative and clerical functions. Edmonson has not alleged with any specificity how the court clerk prejudiced the independence and secrecy of the grand jury proceedings. Nor, can we foresee any situation in which the presence of a person marking exhibits would be grounds for overturning a probable cause finding made by the grand jury. Thus, we conclude that the deputy clerk's mere presence will not necessitate dismissal.^[2]

The attorney with the Department of Law Enforcement was present to assist the Latah County prosecutor in the proceedings before the grand jury. The state, contends, relying on State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939) that his presence was justified. In Taylor, the indicted defendant challenged the presence of a deputy attorney general during the course of grand jury proceedings. The Court first examined several statutes which authorized the attorney general to exercise supervisory powers over prosecuting attorneys. Relying on these statutes, the Court held that the attorney general's presence before a grand jury would not invalidate an indictment. Id., supra at 731-32, 87 P.2d 454. The attorney general is an extension of the prosecutor, and in effect, an authorized person within the meaning of I.C. § 19-1111 and I.C.R.6(d). Therefore, the presence of the state attorney general will not require a dismissal of the indictment.

V

Constitutionality of I.C. § 18-1905

Edmonson was indicted on the crime of falsification of corporate books in violation of I.C. § 18-1905. The punishment provision of this statute provides:

"is punishable by imprisonment in the state prison not less than three (3) nor more than ten (10) years, or by imprisonment in a county jail not exceeding one (1) year or a fine not exceeding $500, or by both such fine and imprisonment."

I.C. § 18-111 distinguishes a felony from a misdemeanor.

"A felony is a crime which is punishable with death or by imprisonment in the state prison... . Every other crime [except infractions] is a misdemeanor. When a crime punishable by imprisonment in the state prison is also punishable by a fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison."

Edmonson contends that I.C. § 18-1905 violates the fourteenth amendment to the United States Constitution for two reasons. First, the statute does not delineate between the type of conduct punishable as a felony or a misdemeanor. Second, the statute gives the prosecutor unfettered discretion to charge either a misdemeanor or a felony. In support of his contentions, he relies on two Oregon Supreme Court cases. In State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955), the court struck down as violative of the fourteenth amendment an Oregon statute which gave the grand jury or the magistrate unlimited discretion to charge either a felony or a misdemeanor for certain bad check violations. In State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), the same court held unconstitutional an Oregon statute which granted to the district attorney unfettered discretion to determine whether or not to file an habitual offender charge against one who had theretofore been convicted of a felony not involving personal violence, whereas under another subsection of the same statute, he was required to file habitual offender information against a defendant previously convicted in cases of crimes involving violence. Edmonson's argument is misplaced.

I.C. § 18-1905, unlike the statutes declared unconstitutional in Pirkey and Cory does not grant the prosecuting attorney or a grand jury unbriddled discretion to charge Edmonson either with a felony or with a misdemeanor. In both Pirkey and Cory, the applicable statute clearly endowed the grand jury, magistrate or the district attorney with such charging discretion. I.C. § 18-1905 is silent on the issue of whether this provision is a charging decision or a sentencing decision. However, I.C. § 18-1905 must be read in conjunction with I.C. § 18-107 which empowers a court to determine punishment:

"Whenever, in this code, the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case, must be determined by the court authorized to pass sentence within such limits as may be prescribed by this code."

The legislature in enacting I.C. § 18-1905 gave the sentencing court a sentencing range. A sentencing court has discretion to impose any sentence within the statutory maximum and minimum so long as it is reasonable. State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986); State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982).

Edmonson's attack on I.C. § 18-1905 is without merit because it allows for sentencing discretion and not charging discretion. We do not imply that should the facts indicate a statute allows for a charging discretion, we would follow the reasoning of the Oregon Supreme Court.^[3] That question, should it arise, is better left for a later day.

VI

Conclusion

We have considered all of Edmonson's challenges, both constitutional and statutory, to the grand jury indictment. While errors occurred in the proceedings, none rise to a level which would require dismissal. Therefore, we affirm the district court and remand back for trial.

Costs to respondent.

No attorney fees on appeal.

SHEPARD, C.J., and BAKES, J., concur.

HUNTLEY, Justice, concurring specially and dissenting in part.

I concur in the result reached by the majority and dissent only from the equal protection analysis of Part I of the majority opinion.

With respect to the equal protection issue, I agree with the California Supreme Court in its incisive analysis in Hawkins v. Superior Court, 22 Cal. 3d 584, 150 Cal. Rptr. 435, 586 P.2d 916, which opinion is reproduced in full in the dissent herein of Justice Bistline.

I further believe the trial judge, Judge Bengtson, was correct when he wrote:

Had the defendant in the case at bar sought, following the return of the indictment and before or at the time of the entry of his plea, an order granting him a postindictment preliminary hearing (as the defendants did in both Hawkins and Freeland) and had the State been unable to demonstrate a coherent, systematic policy relating to the selection of the indictment process for the prosecution of the above entitled cases and refused to conduct a preliminary hearing upon defendant's motion or application, it is likely that the indictments in these cases would have been dismissed by this Court.

BISTLINE, Justice, dissenting.

The majority opinion correctly reprints art. 1, § 8 of our Idaho Constitution. It reads now as it did when ratified in 1889. A fortiori, it reads now as it did in 1947, 1948, about which time Justice Donaldson and myself were studying criminal procedure at the College of Law in Moscow. The majority is also to be commended for correctly assessing the prosecutor's conduct as impermissible. There is little else in the majority opinion which will be of much benefit in the future and, to the contrary, will be detrimental.

Chapter 8, Title 19 of the Idaho Code, captioned "Examination of Case and Discharge or Commitment of Accused," provides now, as has been so since 1864, for a probable cause hearing. Under I.C. § 19-814, the magistrate must dismiss where he finds no public offense committed, or not sufficient cause to believe the defendant guilty of a public offense.

On the other hand, I.C. § 19-815 provides:

19-815. Holding defendant to answer. — If, after hearing the evidence adduced at the preliminary examination, the magistrate finds that a public offense has been committed, and that there is probable or sufficient cause to believe the defendant guilty thereof, the magistrate shall enter an order holding the defendant to answer to said public offense, which order shall be substantially as follows: "It appearing to me that the offense set forth in the complaint (or any offense, according to the evidence presented at the preliminary examination, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A.B. guilty thereof, I order that he be held to answer the same."

The 1864 Territorial Criminal Practice Act, § 160, read almost identically:

Sec. 160. If, however, it appears from the examination that a public offence has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate shall, in like manner, endorse on the depositions and statement an order signed by him to the following effect: "It appearing to me, by the within depositions and statement (if any), that the offence therein mentioned, (or any other offence according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A.B. guilty thereof, I order that he be held to answer the same."

In law school, what we were not told was that in territorial days, all prosecutions after commitment were by grand jury indictment. There was no alternative provision for prosecution upon a prosecutor's information. Sections 173 through 216 provided the procedure for impaneling a grand jury, and for a committed defendant to mount any challenge, either to the grand jury as a whole, or to any individual juror. The defendants, in jail or out on bail, were aware that a grand jury would convene, and would consider the case of each. In fact, the function of the grand jury was primarily to consider indictments of accused defendants who were either in jail or out on bail. Only if the grand jury returned an indictment would those defendants be put on trial. Sections 201 and 209 required that the grand jury inquire into all public offenses committed or triable within the jurisdiction of the court, and that a grand juror, knowing or having reason to believe that an offense has been committed within the court's jurisdiction, must so inform his fellow jurors, and the grand juror will investigate.

What comes out of this documented history is that the grand jury is accusatory only as to charges which have been already heard by a magistrate, and a commitment made, and investigatory as to other public offenses brought to its attention, but which have not been heard by a magistrate: "An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense. Criminal Practice Act, § 202 (1864). Today, 127 years later, I.C. § 9-1102 is exactly the same as § 202 enacted in 1864. It is upon that accusation of a grand jury, i.e., that a defendant is put on trial.

Similarly, as to the grand jury's investigatory function under §§ 201 and 209 of the 1864 Act, a presentment may flow from the investigation. A presentment is as defined in the 1864 Act, § 203, and to this day in, I.C. § 19-1105:

19-1105. Presentment defined. — A presentment is a formal statement in writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it.

A presentment did not and does not result in putting the accused to a trial. Rather,

If the court deem that the facts stated in the presentment constitute a public offence, triable within the county, it shall direct the clerk to issue a bench warrant for the arrest of the defendant.

Crim.Prac.Act, § 220 (1864).

If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench warrant for the arrest of the defendant.

I.C. § 19-1203.

Whereupon, as in 1864, and to this very day 127 years later, the defendant is arrested and taken before a magistrate:

The magistrate, when the defendant is brought before him, shall proceed to examine the charge contained in the presentment, and hold the defendant to answer the same, or discharge him therefrom, in the same manner in all respects, as upon a warrant of arrest on complaint.

Crim.Prac.Act, § 224 (1864).

The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.

I.C. § 19-1207.

It is thus seen that the magistrate will, following a presentment and a district court arrest warrant based thereon, decide whether there is probable cause to hold a "presentmented" defendant for jury trial on felony charges. It is thus seen on close perusal that in territorial days, and after, that, unlike the federal system, there is no procedure for secret grand jury proceedings which can result in an indictment. A presentment, yes, but an indictment, no.

On beginning this historical review, it was expected that this would be so. How else is there any reasonable explanation for the statutory provisions — 127 years continuously — providing the defendant with the right to make challenge to the grand jury panel, and to individual jurors?

Nothing has been changed over the years as to the procedure under which a person may be charged and brought to trial by use of an indictment.

To prosecution under indictment the Constitutional Convention, after considerable debate, added that a committed defendant could also be charged and tried in district court by a prosecutor's information. The discussion at the Convention is enlightening. It was largely between members who were lawyers and, accordingly, knowledgeable in the working of grand jury proceedings in the days since the territory was created.

Although art. 1, § 8 of the Idaho Constitution is not identical to art. 1, § 8 of the 1879 California Constitution, it is virtually the same. Both provisions allow for prosecution of offenses by information of the public prosecutor, or by indictment. Mr. Standrod of Oneida County in speaking for the use of an information, as an alternative to an indictment, after first expounding on the paucity of crime and the cost to the counties of grand juries,^[1] specifically referred the Convention to what he called the California success: "and in California, that great state, where the survival of the fittest is a maxim that has been put into practical use, instead of theory, they have adopted this plan and the prosecutions of this state have been successful and they are conducted under a section of this kind." Constitutional Convention, p. 263 (1889). Mr. Claggett also spoke favorably of the California constitutional provision.

While I do note that the majority opinion correctly observes that the functions of a grand jury are investigatory and accusatory (charging), such seems to be about as deep as the majority has explored the problem. Nowhere in the majority is the state of California and its development in jurisprudence given any mention. This is exceedingly strange where it is beyond cavil that all of us who hold this office are and have been well aware that most of our criminal law and criminal procedure statutes were taken directly from California. Our territorial statutes did not materialize out of thin air.

We have in this Supreme Court building a copy of the laws of the State of California, passed at the second session of the legislature in January of 1851, which session was held at the Pueblo de San Jose. Pertinent to our inquiry here, California at that time, prior to the 1879 Constitutional Convention, provided only that public offenses be prosecuted by indictment. § 177, p. 232. Formation of the grand jury, and powers of the grand jury, appear to be exactly those which the Idaho Territorial Legislature enacted in 1864 in the Criminal Practice Act. The interested, and perhaps the doubting, reader will find attached hereto the 1851 California statutes, and the 1864 Idaho statutes. (Attachments 1 and 2.)

The rule of law in this jurisdiction which applies to such circumstances was recently stated by Justice Bakes in Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1981):

This court has consistently held that "[a] statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction." Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979). State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26, 454 P.2d 63 (1969).

It is submitted that with Idaho's adoption, and 127 years' retention, of California statutes, and the Idaho Constitutional Convention accepting an art. 1, § 8 provision patterned after California's earlier ratified art. 1, § 8, there should be some interest on the part of this Court's membership when the same issue arose in California. In truth, I fear that there may be some who worry that a result-oriented majority would be naturally curious to know what California's court may have done, and on finding the answer, has purposefully forgotten that a great deal of our Idaho law, inclusive of more than the criminal code, came to us from California.

Much as the majority opinion in our case notes that "the rights afforded the accused in these [grand jury or a preliminary hearing] proceedings are different," the California Supreme Court opened its discussion with a similar statement:

It is undeniable that there is a considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of an information and defendants charged by the grand jury in an indictment.

Hawkins v. Superior Court, Etc., 22 Cal. 3d 584, 150 Cal. Rptr. 435, 436, 586 P.2d 916, 917 (1978) (footnote omitted).

Having said that, the California court proceeds to rationally and soundly justify its conclusion that an accused is denied equal protection of the law when prosecuted by indictment and deprived of a preliminary hearing and the concomitant rights which attach when prosecution is by information:

"The defendant accused by information `immediately becomes entitled to an impressive array of procedural rights, including a preliminary hearing before a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and affirmatively present exculpatory evidence. (Pen.Code, § 858 et seq.; Jennings v. Superior Court (1967) 66 Cal. 2d 867, 59 Cal. Rptr. 440, 428 P.2d 304... .)' (Johnson v. Superior Court (1975) 15 Cal. 3d 248, 256, 124 Cal. Rptr. 32, 37, 539 P.2d 792, 799 (conc. opn. by Mosk, J.).)

In vivid contrast, the indictment procedure omits all the above safeguards: the defendant has no right to appear or be represented by counsel, and consequently may not confront and cross-examine the witnesses against him, object to evidence introduced by the prosecutor, make legal arguments, or present evidence to explain or contradict the charge. Penal Code section 939.7 captures the spirit of the proceeding by declaring as a matter of law, "The grand jury is not required to hear evidence for the defendant... .' If he is called to testify, the defendant has no right to the presence of counsel, even though, because of the absolute secrecy surrounding grand jury proceedings, he may be completely unaware of the subject of inquiry or his position as a target witness.2 This remarkable lack of even the most basic rights is compounded by the absence from the grand jury room of a neutral and detached magistrate, trained in the law, to rule on the admissibility of evidence and insure that the grand jury exercises its indicting function with proper regard for the independence and objectivity so necessary if it is to fulfill its purported role of protecting innocent citizens from unfounded accusations, even as it proceeds against those who it has probable cause to believe have committed offenses.

"The Attorney General recognizes, as he must, that vastly different procedures attend these alternative modes of prosecution, but maintains that such differences are "more apparent than real." This startling claim is premised on the availability to the accused of judicial review of the grand jury's probable cause determination. (Pen. Code, §§ 995, 999a.) The defendant in either case, it is urged, is entitled to a judicial determination that the evidence is sufficient to require trial.3

"The foregoing argument depends on two erroneous assumptions. It assumes first that the only benefit derived by a defendant from an adversarial preliminary hearing lies in obtaining a judicial determination of probable cause. Yet whatever may be the Legislature's intent in establishing such a hearing, it serves a number of pragmatic functions for the accused. The United States Supreme Court catalogued some of them in Coleman v. Alabama (1970) 399 U.S. 1, 9-10, 90 S. Ct. 1999, 2003, 26 L. Ed. 2d 387, holding the Alabama preliminary hearing at issue therein to be `a "critical stage" of the State's criminal process' at which the defendant had a right to `the guiding hand of counsel.'4 The court observed that a `skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial.' It went on to recognize the important discovery function served by an adversarial preliminary hearing; such a hearing will assuredly provide the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial. The court also noted a less obvious advantage to the defendant accorded a preliminary hearing: his counsel may immediately argue before a judge on such matters as the necessity for an early psychiatric examination or setting bail.

"These benefits to the defense which inhere in an adversarial preliminary hearing are either completely denied to a defendant charged in a secret, nonadversarial grand jury proceeding, or ultimately realized by such a defendant only to a limited extent. It cannot be seriously argued that an indicted defendant enjoys a comparable opportunity to discover the state's case and develop evidence because he later obtains a transcript of grand jury proceedings. (Pen.Code, §§ 938.1, 995a.) Such a transcript will invariably reflect only what the prosecuting attorney permits it to reflect; it is certainly no substitute for the possibility of developing further evidence through a probing cross-examination of prosecution witnesses — a possibility foreclosed with the denial of an adversarial proceeding. There is no other effective means for the defense to compel the cooperation of a hostile witness (see People v. Municipal Court (Runyan) (1978) 20 Cal. 3d 523, 143 Cal. Rptr. 609, 574 P.2d 425); in the unlikely event that all the prosecution witnesses agree to submit to defense interviews, the defense still must incur unnecessary expense and hardship which may be substantial.

"The Attorney General further assumes, in asserting that the differences between indictment and information procedures are "more apparent than real," that the likelihood of a probable cause finding is substantially the same whether the screening function is performed by the grand jury with subsequent judicial review or by a magistrate at a preliminary hearing. This assumption reflects the idealistic concept that the grand jury is an independent body of citizens, standing as a buffer between the state and the individual and protecting the innocent from unfounded accusations of crime. Unfortunately, grand jury proceedings today are structured in a manner that renders fulfillment of the ideal unattainable.

"The prosecuting attorney is typically in complete control of the total process in the grand jury room: he calls the witnesses, interprets the evidence, states and applies the law, and advises the grand jury on whether a crime has been committed. (See Judicial Council of Cal., Annual Rep. (1974) p. 58; Kranitz, The Grand Jury: Past — Present — No Future (1959) 24 Mo.L.Rev. 318, 328; Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 U.Ill. L.F. 423, 431.) The grand jury is independent only in the sense that it is not formally attached to the prosecutor's office; though legally free to vote as they please, grand jurors virtually always assent to the recommendations of the prosecuting attorney, a fact borne out by available statistical and survey data. (See Morse, A Survey of the Grand Jury System (1931) 10 Ore.L. Rev. 101, 153-154, 304, 325-326; Note, Some Aspects of the California Grand Jury System (1956) 8 Stan.L.Rev. 631, 653-654; Note, Evaluating the Grand Jury's Role in a Dual System of Prosecution: An Iowa Case Study (1972) 57 Iowa L.Rev. 1354, 1369.) Indeed, the fiction of grand jury independence is perhaps best demonstrated by the following fact to which the parties herein have stipulated: between January 1, 1974, and June 30, 1977, 235 cases were presented to the San Francisco grand jury and indictments were returned in all 235.

"The pervasive prosecutorial influence reflected in such statistics has led an impressive array of commentators to endorse the sentiment expressed by United States District Judge William J. Campbell, a former prosecutor: `Today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.' (Campbell, Eliminate the Grand Jury (1973) 64 J.Crim.L. & C. 174.) Another distinguished federal jurist, Judge Marvin E. Frankel, put it this way: `The contemporary grand jury investigates only those whom the prosecutor asks to be investigated, and by and large indicts those whom the prosecutor wants to be indicted.' (Frankel & Naftalis, The Grand Jury: An Institution on Trial (1977) p. 100.) (Also see Antell, The Modern Grand Jury: Benighted Supergovernment (1965) 51 A.B.A.J. 153, 154-155; Alexander & Portman, Grand Jury Indictment Versus Prosecution by Information — An Equal Protection — Due Process Issue (1974) 25 Hastings L.J. 997; Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations (1971) 18 UCLA L.Rev. 635, 680-681; Moley, The Initiation of Criminal Prosecutions by Indictment or Information (1931) 29 Mich.L.Rev. 403, 414-415, 430; Weinberg & Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrate Act of 1968 (1969) 67 Mich.L.Rev. 1361, 1380; Meshbesher, Right to Counsel Before Grand Jury (1966) 41 F.R.D. 189, 189-190; Coates, The Grand Jury, The Prosecutor's Puppet, Wasteful Nonsense of Criminal Jurisprudence (1962) 33 Pa.B.A.Q. 311, 314-315; Comment, The Illinois Constitution, Article I, Section 7 — Seeking a Rational Determination of Probable Cause (1975) 24 De Paul L.Rev. 559, 561-565; Note, A Constitutional Right to Preliminary Hearings for All Pretrial Detainee's [sic] (1974) 48 So.Cal.L.Rev. 158, 170-173; Boudin, The Federal Grand Jury (1972) 61 Geo.L.J. 1, 35; Shannon, The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor? (1972) 2 N.M.L.Rev. 141, 142; Foster, Grand Jury Practice in the 1970's (1971) 32 Ohio St. L.J. 701, 702; Schwartz, Demythologizing the Historic Role of the Grand Jury (1972) 10 Am.Crim.L.Rev. 701, 703; Tigar & Levy, The Grand Jury as the New Inquisition (1971) 50 Mich.St.B.J. 693, 694; Comment, Federal Grand Jury Investigation of Political Dissidents (1972) 7 Harv.C.R.-C.L.L.Rev. 432, 438-443; Wise, Criminal Law and Procedure (1974) 20 Wayne L.Rev. 365, 377-378; Gerstein & Robinson, Remedy for the Grand Jury: Retain but Reform (1978) 64 A.B.A.J. 337, 340.) Justice Douglas put the matter succinctly when he wrote: "It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive." (United States v. Dionisio (1973) 410 U.S. 1, 23, 93 S. Ct. 764, 777, 35 L. Ed. 2d 67 (dis. opn.).)

"The domination of grand jury proceedings by the prosecuting attorney no doubt derives at least in part from the grand jury's institutional schizophrenia: it is expected to serve two distinct and largely inconsistent functions — accuser and impartial factfinder. (See Comment, The Preliminary Hearing Versus the Grand Jury Indictment: `Wasteful Nonsense of Criminal Jurisprudence' Revisited (1974) 26 U.Fla.L.Rev. 825, 836-838, 842-843; Note, Criminal Law — Grand Juries, Exemplars and Prosecutors (1973) 22 De Paul L.Rev. 737, 749-750.) In one role, `Basically the grand jury is a law enforcement agency' (United States v. Cleary (2d Cir.1959) 265 F.2d 459, 461, and cases cited), participating in the prosecutorial task of discovering criminal conduct and the perpetrators thereof; putting on its other hat, the grand jury is expected to be a neutral body, protective of the individual against prosecutorial abuses. It seems self-evident that to the extent it succeeds at one function it must fail at the other. Almost all observers of the system conclude that this conflict of roles has prevented the grand jury from being objective, generally to the detriment of indicted defendants.

"The problem of excessive prosecutorial influence is not solved by the availability of judicial review, for the same lack of objectivity, however inadvertent, which affects the grand jurors when they vote to indict infects the record for purposes of review. Excluded from the grand jury room, the defense has no opportunity to conduct the searching cross-examination necessary to reveal flaws in the testimony of prosecution witnesses or to expose dubious eyewitness identifications.5 This lack of defense participation in the development of the reviewable record creates a heavy bias in favor of a finding that the grand jury indictment was based on probable cause. For example, in United States v. Boberg (8th Cir.1977) 565 F.2d 1059, the federal appellate court emphasized that the prosecutor's interrogation of the defendant as a witness before the grand jury consisted `almost entirely of leading questions,' and the ensuing indictment rested on the defendant's `cryptic responses' to such questions. The court admonished that "This kind of interrogation always creates a great risk that the witness will misunderstand the questions or that the prosecutor will put words in the witness' mouth,' and warned all prosecutors that it would `strictly scrutinize for fairness' any similar indictment obtained thereafter. (Id. at pp. 1062-1063.)

"It is clear from the foregoing that a defendant charged by indictment is seriously disadvantaged in contrast to a defendant charged by information. (See also Dash, The Indicting Grand Jury: A Critical Stage? (1972) 10 Am.Crim.L.Rev. 807, 814-815; Judicial Council of Cal., Annual Rep. (1974) pp. 47, 52-55.) Indeed, current indictment procedures create what can only be characterized as a prosecutor's Eden: he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance. In sharp contrast are information procedures in which the defendant is entitled to an adversarial, judicial hearing that yields numerous protections, including a far more meaningful probable cause determination. Yet the prosecuting attorney is free in his completely unfettered discretion to choose which defendants will be charged by indictment rather than information and consequently which catalogue of rights, widely disparate though they may be, a defendant will receive. He may act out of what he believes to be proper law enforcement motives, or he may act whimsically; no case law or statutory guidelines exist to circumscribe his discretion. We examine below the constitutionality of permitting the prosecuting attorney to make such discriminatory classifications.

II

"Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of proving not only that it has a compelling interest which justifies the classification but also that the discrimination is necessary to promote that interest. (See, e.g., Serrano v. Priest (1976) 18 Cal. 3d 728, 761, 135 Cal. Rptr. 345, 557 P.2d 929, and cases cited.)

"For the reasons stated in Part I, ante, the denial of a postindictment preliminary hearing deprives the defendant of `such fundamental rights as counsel, confrontation, the right to personally appear, the right to a hearing before a judicial officer, and the right to be free from unwarranted prosecution. These guarantees are expressly or impliedly grounded in both the state and federal Constitutions and must by any test be deemed "fundamental."' (Johnson v. Superior Court (1975) supra, 15 Cal. 3d 248, 266, 124 Cal. Rptr. 32, 44, 539 P.2d 792, 804 (conc. opn. by Mosk, J.).)

"The Attorney General fails to discharge his burden of proof under this test. His sole attempt to do so is to list in his brief a few tactical advantages gained by the prosecutor who chooses to use the indictment procedure.6 But none of these reasons amounts to a constitutionally compelling state interest that justifies depriving an indicted defendant of the above-discussed fundamental rights guaranteed to him in a preliminary hearing. Nor, indeed, does the Attorney General make any effort to show that this discrimination is constitutionally `necessary' to preserve any such advantages.

"We conclude that the denial of a postindictment preliminary hearing deprived defendants herein of equal protection of the laws guaranteed by article I, section 7, of the California Constitution.7

III

"The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury; indeed, that function is explicitly sanctioned in the California Constitution (art. I, §§ 14, 23) and specifically implemented by the Legislature (Pen.Code, § 888 et seq.). Until such time as the Legislature may prescribe other appropriate procedures, the remedy most consistent with the state Constitution as a whole and least intrusive on the Legislature's prerogative is simply to permit the indictment process to continue precisely as it has, but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea. If the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen.Code, § 859 et seq.).8

"The state constitutional provision recognizing the grand jury's indicting function — article I, section 14 — is no bar to our holding herein. It provides, `Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.' The term `law,' of course, encompasses judicial decisions as well as legislative enactments. (Cf.Evid.Code, § 160.) Thus, while the Constitution authorizes the use of grand juries to indict criminal defendants, it leaves to the Legislature and the courts the task of developing procedures, consistent with other state constitutional provisions, for implementing that mode of initiating prosecutions.9

"Because of previous reliance by the bench and bar on the validity of current postindictment procedures, the rule announced herein shall apply only to the present case and to those indicted defendants who have not entered a plea at the time this opinion becomes final. (See, e.g., People v. Cook (1978) 22 Cal. 3d 67, 99, fn. 18, 148 Cal. Rptr. 605, 583 P.2d 130, and cases cited.)

Let a peremptory writ of mandate issue directing the trial court to proceed in accordance with the views expressed herein.

"TOBRINER, MANUEL and NEWMAN, JJ., concur.

"[BIRD, J., specially concurred.]

"2 As one observer put it, a grand jury room with no judge present to protect unrepresented witnesses or prospective defendants is `a threatening physical environment'; it `possesses coercive characteristics that are analogous to a police interrogation room, which the court found to be inherently coercive in Miranda.' (Note, Federal Grand Juries: The Plight of the Target Witness (1977) 11 U.S.F.L.Rev. 672, 685.)

"3 Simultaneously, and inconsistently, the Attorney General argues that the grand jury indicting function is not a critical stage in the criminal process, that it is merely investigative. We emphasize that we are not here concerned with the true investigative role of the grand jury. In that capacity — citizens probing into and exposing governmental ineptitude and inefficient practices — the grand jury serves a valuable and productive purpose.

"4 Although only four members of the court joined the opinion of the court on this issue, a fifth, Justice Black, agreed in his concurring opinion with the conclusion that a constitutional right to assistance of counsel obtained in the Alabama preliminary hearing.

"5 One advocate has described as follows the value of cross-examination: it `permits disclosure of contradictions, inconsistencies, unsupported conclusions, bizarre descriptions of events, favoritism in testimony, motive, bias, slanting of facts, absence of proof, and in some cases even perjury.' (Werchick, Cal. Preparation and Trial (2d ed. 1974) p. 727.)

"6 `A prosecutor may proceed by indictment for valid reasons: the prospective defendant cannot be found; witnesses may fear testifying in court; the case may have potential for prejudicial pretrial publicity; publicity may jeopardize a continuing investigation; a preliminary examination may involve prolonged delay because of the number of defendants or the complexity of the case.'

"7 While we held to the contrary in People v. Sirhan (1972) 7 Cal. 3d 710, 746-747, 102 Cal. Rptr. 385, 497 P.2d 1121, the issue was treated cursorily and was neither argued nor decided in relation to the California Constitution. As we have previously stated, `[I]n criminal actions, where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never too late to mend.' (People v. Aranda (1965) 63 Cal. 2d 518, 530, 47 Cal. Rptr. 353, 360, 407 P.2d 265, 272, quoting from United States v. Delli Paoli (2d Cir.1956) 229 F.2d 319, 323 (dis. opn. of Frank, J.).) To the extent it is contrary to the views herein expressed, Sirhan is overruled.

"8 In People v. Duncan (1972), 388 Mich. 489, 201 N.W.2d 629, the Supreme Court of Michigan held that defendants are entitled to a post-indictment preliminary hearing. As a result of Duncan the general procedure we recommend here was codified in Michigan Court Rule 788 and is now accepted practice in that state.

"9 Current section 14 represents a streamlined version, not intended to introduce substantive changes, of former article I, section 8, which provided: `Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' (Italics added.) Plainly this predecessor section also left to the Legislature and the courts the task of formulating indictment procedures that do not diminish other constitutional guarantees.

"The Attorney General argues that this court is without power to rule invalid indictment procedures, no matter how drastically or unreasonably such procedures may undermine other constitutional provisions. This position is remarkable in light of long-standing American principles recognizing the role of courts in a constitutional system. The principal support cited by the Attorney General is legislative history which is said to leave the development of indictment procedures to legislative control. Of course the Legislature in the first instance prescribes procedures for grand jury indictments; it is no revelation that history so provides. But the cited legislative history does not purport to strip California courts of the power to invalidate a scheme that interferes unreasonably — and unnecessarily — with other fundamental constitutional guarantees."

Hawkins, supra, 150 Cal. Rptr. at 436-41, 586 P.2d at 917-22.

Not reflecting too creditably upon the majority opinion, it is observed that the district court, the Honorable John H. Bengtson, in addition to analyzing the Oregon case of State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983) — which analysis the majority opinion appears to have utilized — confronted the Hawkins case:

In Hawkins vs Superior Court, etc. (Cal., 1978) [22 Cal. 3d 584, 150 Cal. Rptr. 435], 586 P.2d 916, the Supreme Court of California, while recognizing that it is undeniable that there is a considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of an information and defendants charged by the grand jury in an indictment (which, as in Idaho, are the two methods for initiating a felony prosecution under the California Constitution) and "that a defendant charged by indictment is seriously disadvantaged in contrast to a defendant charged by information," nevertheless did not dismiss the indictment against the defendant. The Court concluded not that the defendant was deprived of equal protection because he had been charged by indictment rather than by the filing of an information, but rather that it was the "denial of a postindictment preliminary hearing" that deprived defendants of equal protection of the laws guaranteed by the California Constitution. The Court stated:

"The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury; indeed, that function is explicitly sanctioned in the California Constitution ... and specifically implemented by the Legislature... .

Until such time as the Legislature may prescribe other appropriate procedures, the remedy most consistent with the State Constitution as a whole and least intrusive on the Legislature's prerogative is simply to permit the indictment process to continue precisely as it has, but to recognize a right of indicted defendants to demand a post-indictment preliminary hearing prior to or at the time of entering a plea. If the defendant makes a timely request for such a preliminary hearing, at the direction of the Court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code... ."

No cases have been brought to the attention of the Court by the parties, nor has the Court unearthed any cases, in which an indictment has been dismissed based upon any equal protection argument, except where an indicted defendant has sought, subsequent to the indictment but before or at the time of entry of his plea, an order which would afford him the right to a preliminary hearing.

The Idaho Constitution in Article 1, Section 8, clearly authorizes the prosecution of a felony to be commenced by either indictment or by information (after the defendant had been afforded the right to a preliminary hearing). This choice of alternative proceedings is also authorized by the California and Oregon Constitutions which governed, respectively, Hawkins and Freeland.

Had the defendant in the case at bar sought, following the return of the indictment and before or at the time of the entry of his plea, an order granting him a postindictment preliminary hearing (as the defendants did in both Hawkins and Freeland) and had the State been unable to demonstrate a coherent, systematic policy relating to the selection of the indictment process for the prosecution of the above entitled cases and refused to conduct a preliminary hearing upon defendant's motion or application, it is likely that the indictments in these cases would have been dismissed by this Court.

However, defendant Edmonson, represented at all stages thus far by exceptionally able counsel, has not chosen to follow the procedures employed by the defendants in Hawkins and Freeland by seeking an order of this Court directing that the State provide him with preliminary hearings on any of the charges set forth in the indictments. This Court is therefore of the opinion that he has waived whatever right the law affords him to a postindictment preliminary hearing and that it is unnecessary for this Court to rule upon the basic constitutional issue raised by the Equal Protection Motions, and such motions should be denied.

Parenthetically, the Court opines that issues such as those raised by these Equal Protection Motions could be avoided in the future if the Legislature of the State of Idaho would enact a law, or the Supreme Court of Idaho would adopt a rule which would clearly provide a defendant charged by indictment with a postindictment preliminary hearing if the same is requested by him at or before the entry of his plea.

R., pp. 48-50.

The only question which I mount as to the validity of Judge Bengtson's learned written decision, which entails all of the issues discussed in the Court's majority opinion (and well might have been adopted as the opinion for the majority), is his statement that "it is likely that the indictments in these cases would have been dismissed by this Court" had the defendant sought "following the return of the indictment ... an order granting him a post indictment preliminary hearing... ." From that stance, Judge Bengtson concluded that the defendant thereby waived such a right, and accordingly it was unnecessary to rule upon the constitutional issues. Although today's majority agreed with Judge Bengtson, it still opted to do the constitutional bit. I agree with Judge Bengtson that it is an unnecessary exercise and would think such should have been avoided.

Judge Bengtson's only misperception in this area, which I see, is his ready and unquestioning acceptance as gospel that the so-called "indictment" is indeed an indictment because it is labeled an indictment. However, it is not an indictment simply because it has been so captioned. In this jurisdiction, we do not exalt form over substance, and the clue in this case occurred at oral argument when Justice Donaldson inquired of the solicitor-general as to the difference between an indictment and a presentment:

JUSTICE DONALDSON: Now, tell me the difference between a presentment by the grand jury and an indictment by the grand jury, and the standard of proof and what happens, say if a presentment is made by the grand jury?

MR. THOMAS: I am not sure that I really understand what the difference between a presentment is. I know that an indictment is clearly a charge of criminal violation. It then results in a trial.

JUSTICE DONALDSON: I understand that proof required for an indictment is against the presentment?

MR. THOMAS: My understanding of the standard of proof, the burden of proof, for an indictment is the same as for a preliminary hearing — probable cause to believe that a crime has been committed and that the defendant committed it.

JUSTICE DONALDSON: I was just reading the statute on presentment, and it says here: "A presentment is a formal statement in writing by the grand jury representing to the court that a public offense has been committed which is triable in the county and that there is reasonable ground for believing the particular individual named or described thereon has committed it." And then for "indictment" it says, "The grand jury ought to find an indictment where all evidence before them taken together if unexplained or uncontradicted would in their judgment warrant a conviction by a trial or jury." To me it seems that there might be a different standard of proof involved. There are no cases that I know of on it, and we, as you know, we very seldom have any cases on the use of a grand jury in Idaho. Other states and federal governments, of course, are quite different. I was just trying to see if you had any further light on that.

MR. THOMAS: Well, it certainly I suppose could be argued that the suggestion in the part of the statute relating to indictments that to the grand jury should return an indictment, if it thought a conviction might ensue could be read to suggest that there should be proof beyond a reasonable doubt.

JUSTICE DONALDSON: Of course, that's the standard that the prosecuting attorney used throughout this grand jury was that they had to find beyond a reasonable doubt. Which is the same standard that the regular jury does.

MR. THOMAS: That's correct. But, I would argue against interpreting the statute in that fashion.

JUSTICE DONALDSON: I am wondering if he was correct in his assumption.

MR. THOMAS: I think he was not.

It would seem that if the solicitor-general, who to my knowledge is involved exclusively with criminal law and no other field whatever, was wholly unaware of the difference between an indictment and a presentment, there is very good reason to believe that Judge Bengtson, who has to be involved in the many complex fields of civil and domestic law, and occasionally criminal law and procedure as well, was equally not aware that a presentment is not an indictment — but has for 127 years of statutory existence played an entirely separate and distinct part in grand jury proceedings. At the same time, Justice Donaldson was not putting the solicitor-general through an academic exercise, but sensed a difference between the two, and wanting to be informed from a person from the attorney general's office, received no enlightenment whatever.

On the other hand, if the solicitor-general did know the difference, he would have had to explain that a presentment arises out of a grand jury's investigatory function, and, on being delivered to the district court, results in a warrant for arrest made returnable before a magistrate:

A presentment is an informal statement in writing, but the grand jury, representing that a public offense has been committed, which is triable within the county, and that there is reasonable grounds for believing that a particular individual, named or described, has committed it.

I.C. § 19-1102 (1864 Crim.Prac.Act § 203).

The presentment, when found, must be presented by the foreman, in presence of the grand jury, to the court, and must be filed with the clerk.

I.C. § 19-1202 (1864 Crim.Prac.Act § 217).

If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench warrant for the arrest of the defendant.

I.C. § 19-1203 (1864 Crim.Prac.Act § 220).

I.C. § 19-1205 sets forth the form of the bench warrant, which recites the presentment, and commands any peace officer in the state to arrest the person named forthwith and take him before a named magistrate of the county, "or in case of his inability to act or absence, before the nearest and most accessible magistrate in this county."

This statute, too, carried over from the 1864 Criminal Practice Act, § 222.

The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.

I.C. § 19-1207.

The annotation to this section refers to the proceedings under I.C. § 19-801 et seq., and requires first that "the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings," following which there must be a preliminary examination to determine if there is probable cause. I.C. § 19-804.

Knowing all of this, if he did, the solicitor-general had to know in turn that the grand jury had not presented the district court with an indictment, but with a presentment, and that the defendant, as a matter of law, had to be advised of his right to counsel and afforded a preliminary hearing. No demand was necessary.

It is all as it should be. Forever there has been in Idaho always the involvement of a neutral and detached magistrate standing between the citizenry and the prosecutor. On an indictment, that involvement comes before the grand jury considers indicting an accused defendant. On a presentment, however, there is no accused defendant (either in jail or out on bail) simply because there has been no arrest and no preliminary examination. The statutory procedure spells out very clearly that the district judge, if satisfied with the content of the presentment, will issue an arrest warrant which requires the arresting officer to take the individual named to a certain named or nearest magistrate. Then the neutral and detached magistrate becomes involved and conducts a preliminary examination. The procedure, if not understood by the solicitor-general, is not likely well understood by anyone — which is to be expected in view of the little use of grand juries in Idaho, and no knowledge of the function of an indictment vis a vis a presentment.

What is extremely clear, I repeat, is that Idaho, and California, too, and most western states, have forever respected the interposition of a magistrate between the prosecutor and an accused.

The majority opinion, however, shows little awareness of the involvement of a magistrate — as is well demonstrated by its declaration that "an informal procedure in which an accused is not given the right to contest the state's evidence, or even put on his own evidence is not per se constitution[ally] infirm" — said to be predicated upon Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54, a 1975 case from which the majority excerpts a lengthy quote, p. 234, 743 P.2d p. 463. Regrettably, the majority is not aware that Gerstein's discussion is not of a preliminary hearing or of a grand jury proceeding, but a probable cause hearing of some sort which is better than no hearing of any kind. Under Florida law, a prosecutor's assessment of probable cause had in Florida been held sufficient for extended pretrial detention. Other than in capital cases, where indictments were required, prosecutors were allowed to charge all other crimes by information, without a prior preliminary. The holding of the Supreme Court of the United States had naught to do with grand juries, with indictments, or with presentments. The clearly stated holding in the case was that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Not having the time to review our own decisions since 1975, I am reasonably certain that either Justice Bakes or myself, or both, have written relative to Gerstein, and this Court should be better aware of what that case was about. The excerpt quoted was merely in explanation that a probable cause hearing before a magistrate as a prerequisite to detaining (confining) an accused is not a preliminary hearing, and appointment of counsel is not required for indigent defendants as required under Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970). In short, Gerstein has nothing to do with the case before us, and the majority ill-serves the trial bench and bar by interposing the Gerstein excerpt with loose language that suggests a grand jury is an informal procedure, the purpose of which is to also determine probable cause. A grand jury is, in my mind, at least, anything but an informal procedure; the statutory provisions governing its conduct are all-encompassing, leaving little for doubt.

But, if I err in my assessment that the document in question is a presentment, I am nevertheless unable to fathom any reason for not according indicted defendants a preliminary hearing.

In days not too long ago, accused defendants were taken to preliminary hearings, and, if indigent, had no representation. Only on going to trial was counsel appointed for the indigent accused, who often waived the right. I cannot remember of a case where, prior to trial, the district court ever denied appointed counsel's motion to turn back the clock and give the defendant a preliminary hearing. In fact, personally, I can remember clients of mine who were allowed that right. Everyone involved seemed to be interested in seeing that justice was served.

A preliminary hearing for indicted defendants who request the same is not spelled out in the Code. For presented defendants, it is spelled out. Who is the more in need of a preliminary hearing — the indicted defendant who has already been held to answer by a magistrate, or the presented defendant who has not, and was not even aware that his activities were under investigation in secret proceedings?

Then, too, think of the cost — not much. At a preliminary hearing, the prosecutor need not put his entire case, but only so much as will result in the defendant being held to answer. Then, too, think of the time delay which has ensued where a preliminary was not given, but the question certified for appeal — consuming more valuable time which this Court could better expend on other cases.

There is, too, here, good reason to believe that the prosecutor far overstepped his prescribed rule. So much so that I for one, who has read the available transcripts, believe a poor precedent is set by the imprimatur of this Court's stamp of approval — even though it reluctantly agrees with my own view.

Grand juries are impaneled in Idaho pursuant to I.C. § 2-501, by order of the court filed with the clerk, and shall be summoned from a master list which is open to public examination. I.C. § 2-206. The court directs the jury commission to draw and assign from the master jury wheel the number of qualified jurors for a grand jury. I.C. § 210(2), and the clerk in turn notifies the drawn jurors when to report. Sixteen persons constitute a grand jury, twelve of whom constitute a quorum.

After the drawn grand jurors assemble and are sworn, the jury is charged by the court. I.C. 19-1013. "In doing so, the court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to charges for public offenses returned to the court or likely to come before the grand jury." I.C. § 19-1013. These statutes have governed Idaho grand juries since 1864. The grand jury must then retire to a private room and inquire into the offenses cognizable by them. I.C. § 19-1014. I.C. § 19-1111 provides that the jury may ask the advice of the court, or judge thereof, or of the prosecuting attorney. As to the prosecuting attorney, the section is specific "that he may at all times appear before them for the purpose of giving them information or advice, and may interrogate witnesses before them whenever he or the jury think it necessary."

The record before us does not contain the court's charge to the jury. When the jury convened on November 13, 1984, at Moscow, Idaho, only present were the prosecutor and the jurors. The prosecutor's statement indicated that the court may have charged the jury when the prosecutor remarked: "As the judge has indicated, Mr. McCoy has been designated the foreman ..." and again, "As you recall, one of the instructions that Judge Maynard read to you is that you have to keep track of the votes on the indictments and what have you." The prosecutor, apparently before the jury retired to their room, had already exposed his case against the individuals for whom he asked indictments — as witnessed by the remark, "And when I mentioned in my preparatory remark in the courtroom that you would be looking at a wide scope of people from the executive category all the way down to the wage and hour category."

Nothing else in that transcript is remarkable other than that the prosecutor told the jurors that they were a "quotient verdict" in that although it took twelve to indict, "there's nothing that compels all of you to be here as long as there's always twelve." Tr., p. 25. He explained a theory for that statement which is most unusual: "Because it's a quotient jury, the theory is that you rely on the good memories and the wisdom of your fellow jurors in asking them about certain things." Tr., p. 25. This "tag-team" theory of jury attendance is not, in my view, within the letter of the law. Clearly, this was additional grounds invalidating the grand jury proceeding. The transcript demonstrates that at least two of the jurors were interested in not even serving.

The jury apparently received testimony of the witnesses between November 13, 1984 and January 8, 1985. We do not have this testimony, and have no way of knowing the extent of the prosecutor's involvement in the interrogations — nor is it anything we need to know to decide the issue before us.

On January 8, 1985, presumably the testimony and exhibits, if any, were all before the jury when it assembled at 10:50 a.m. that day. The proceedings of that day commenced with the prosecutor handing out to everyone present a set of 20 numbered instructions, presumably drawn by him. He then passed out to each of the jurors one of his proposed and prepared indictments. He explained: "The indictments that you will be dealing with are the indictments that after viewing the evidence from — from my standpoint, I have proposed." Tr., p. 5. He went on to explain the reasoning behind his selective selection of indictees:

There are a number of other events that maybe have occurred during the presentation of this case that would or could technically be of a level — evidentiary level to warrant an indictment. There may or may not be reasons — or there certainly are reasons why those indictments are not being requested. The reasons may vary from the sublime to the very complex. One reason that indictments are not requested in many grand jury cases against certain people is that you want to keep those people in a state of legal limbo. A state of legal limbo for purposes of possibly utilizing them as witnesses against other people.

Also, there are instances in which if you have a weak case against a person, technically sufficient but presentationally weak, then you generally do not want to indict that person because tactically in a multi-defendant case that one will invariably be the first one to go to trial. And in a series of trials you don't want to start out with the worst case, the lawyers for all of the other defendants are sitting in the courtroom while you're doing the first case. So if you have a weak case, then tactically that works to your disadvantage.

So there are a variety of reasons why there may be some events that you have detected that merit some sort of sanction that the indictments are not proposed for.

Tr., pp. 5-6 (emphasis added).

He told the jurors that: "There are also instances in which indictments are not drawn that very simply legally do not merit an indictment." Tr., p. 6. He named an example from those being investigated.

From that point on, until almost 4:00 p.m. that day, the prosecutor argued his instructions and the testimony of the witnesses as he viewed it and as he told the jurors that they should believe it. We are not favored with the set of instructions with which the prosecutor handed the jurors, so the content of each of the 20 instructions is an unknown. We can, however, read from the prosecutor's comment that his instruction No. 2 invited the jurors to key in on certain people:

So you're going to treat or you're going to view a person who is in a position of reponsibility, a supervisor, a director, a department head, significantly different. You're going to view his activities or her activities significantly different than you are the key punch operator sitting out on the floor who makes four dollars an hour and who just does what comes through the basket. And that's essentially what instruction number two indicates.

Tr., pp. 14-15.

He provided the jurors with a history of the grand jury system and explained that "the grand jury system in this country and in all countries that have a grand jury system, remains an inquisitorial device." After remarking that "in a true inquisitorial system, you are guilty until you prove yourself innocent," the prosecutor also correctly and properly told them: "So if you are given an indictment, for instance the one you have before you, ____'s grand theft indictment, then that jeopardies out Mr. ____ on grand theft.

Early in his long presentation, on page 18 of 153 pages, the prosecutor suggested to the jurors what the evidence showed:

During the process of presenting the evidence in the case, I think as I mentioned before, you probably detected that there were a lot of things going on surrounding this case that just didn't seem quite right. And that people were playing fast and loose. People were not very honest. People were trying to be high rollers in a small pond — a mixed metaphor — and they in the end came to no good end for it.

Tr., p. 18.

People who commit crimes of passion, they very physically exhibit what they do. But people who are fraudulent and people who conspire don't. And — because that's the nature of the crime. You don't go out and announced that you're in the middle of a conspiracy. There are conspiracies of silence. There are conspiracies that are effectuated just through — through covert power. The best example of that is the military when a person in command says, "I would like something taken care of", it gets taken care of without any further explanation from — by the person in command. People can make their desires known in a certain way without actually having to express in specific detail what they want done. Conspiracies are like that. With a look, with a wink, with a nod. With an understanding of unified objectives things can be accomplished. That's why conspiracies are so tough to prosecute and so tough to prove, because you can't find an eye witness. You can't find any real evidence. Conspiracies all occur in minds of people and in the interaction between the two conspirators or the three conspirators of the four conspirators. And unless you get a confession from one, you have a very difficult time ever proving a conspiracy.

For that purpose the law has developed an entire body of conspiracy law and if you look back at instruction number eighteen you'll find what has developed in this country as being the common sense but again legalistic expression of how you can produce evidence to show conspiracy. Most people think in a conspiracy you have to have this conspiratorial scenario in which people slink down the street and slide into darken doorways and then sit down in a room with a bare light bulb hanging there and plot to do things. Or that drug dealers sit in villas in Miami and plot how to do things over the telephone. That's not particularly so. A conspiracy can be formed and take place in a matter of seconds.... Conspiracy as the instructions indicate to you on number sixteen is nothing more than an agreement between two or more people to commit a criminal offense. Okay? Each person has to know in order for it to be a conspiracy that they're participating in an agreement. They must have intent. Conspiracy is a specific intent crime. And then if any one of them commits an overt act in furtherance of that conspiracy, then the conspiracy is a fait d'acompli. It is a completed crime at that time.

Tr., pp. 23-25.

In instruction seventeen I think in very brief form most of what I have indicated to you is detailed there in that particular instruction.

Now the instruction number nineteen is the final conspiracy instruction and it is, once again, a very common sense instruction, a very common sense objective of the law, because it is the unique conspiracy participant instruction.

Tr., p. 30 (emphasis added).

At page 32, he mentioned having brought in, supposedly as a witness, a Mr. Donesley who lectured the jurors on the RICO statutes. The Idaho statutes, however, are explicit that only the court and the prosecutor can given legal advice to the jurors. His recapitulation of the RICO statutes and purposes encompassed at least ten pages.

His Instruction No. 6 explained the difference between circumstantial and direct evidence, according to his statement of it. Tr., p. 43. His Instruction No. 8 apparently dealt with credibility of witnesses. Tr., pp. 43-45. His Instruction No. 9 apparently told the jury as being an aider or abettor, of which he said was confusing to people, and then explained it, and in doing so lectured the jurors on Idaho's newly enacted comprehensive theft statute.

Following a break, the prosecutor laboriously perused with the jury his proposed indictments together with his recollection and views of the evidence. One could write on and on forever, but enough has been written to establish that the prosecutor's summation in this grand jury proceeding was purely that of an advocate pursuing his own goals, wholly unfettered in a totally nonadversarial setting which left him at liberty to lead the jury to do his bidding — albeit it is true, from time to time, he told the jurors that they were not bound by his views, and whether they would agree to his proposed indictments was up to them.

What I read is fully convincing that this grand jury proceeding was not in compliance with statutory proceedings — not by a long shot. It is the function of this office to call things as they are, by which it is meant to convey the thought that what is written is not to be taken as critical of the prosecutor. As I see it, there simply is no established body of case law in Idaho which is available as guidelines for the convening and conducting of grand juries. The prosecutor without doubt thought that the grand jury was a prosecutorial device for the benefit of prosecutors — much as the special inquiry judge — which the prosecutor had already utilized, and from which proceeding had gathered most of the leads upon which he followed through with the grand jury.

The solicitor-general even after writing his brief and doing the necessary research work for that effort, did not know at oral argument the difference between an indictment and a presentment.

The solicitor-general at oral argument told us that the prosecutor had been flatly in error in telling the grand jurors that the evidence before them had to convince them beyond a reasonable doubt.

My present perception as to whether the members of this Court are any more knowledgeable in this area of the law, and especially with the statutes which govern such proceedings, leaves me not at all persuaded that the collective knowledge of this Court is any better or any worse than the prosecutor's and the solicitor-general's. What the trial bench and bar may well fear is that this Court issues its opinion this day without being properly informed, which is to be much regretted.

As mentioned earlier, reason and practicality dictate that the district court be directed to allow the defendants the preliminary hearing which they seek. For the life of me I cannot understand the solicitor-general's objection. The preliminary hearing could have been held and over months ago, and the case pursued in district court.

In due time, perhaps the trial bar, absent any help from this Court, might deem it wise to reflect upon the grand jury system and examine for adequacy and suffering those statutes which have been on the books, unchallenged, sine 1864. In that year, we copied California's 1851 statutes, and we still had them when we became a state in 1889, and still have them. And, we have a constitutional provision, art. I, § 8, patterned after California's art. I, § 8, and we have a 5-2 California opinion which holds that indicted defendants are entitled to a preliminary hearing. A preliminary examination has been part and parcel of Idaho law ever since there has been an Idaho. Unless I am much mistaken, the jury returned presentments, although the prosecutor called his proposed bills indictments. Under the law, if such are presentments, the statutes require the district court to order the accused to be arrested and taken before a magistrate for a preliminary examination — perhaps to be held to answer for jury trial.

A final word, how disturbing it must be to counsel for the defendants to read Part III of the majority opinion. The majority commendably sets forth some of the prosecutor's comments to the grand jurors, pp. 237-238, 743 P.2d pp. 466-467, and having done so, declares "that these statements are impermissible," and cites the reader to the American Bar Association Standards for Criminal Justice. The majority states that such impermissibility is irrelevant unless those statements are prejudicial — meaning in the majority mind that "they are designed to appeal to jury prejudices or prod a reluctant jury into voting for indictment." Then, philosophizes the majority:

Grand jurors realize that the case is being presented precisely because the prosecutor believes the grand jury should indict. They realize that the prosecutor will make statements on the evidence.

The comments alleged to be prejudicial were directed to the grand jury over a period of several days. In our perception, the prosecutor, by the use of these statements, was attempting to explain the law to the jurors.

Majority op., p. 238, 743 P.2d p. 467.

The majority finds the prosecutor's intent laudable, and that the grand jurors were wholly unaffected by it. In that manner, the majority, speaking for the highest court in Idaho, put the stamp of approval on a grand jury procedure wholly not in conformance with the statutes of Idaho, nor with the ABA Standards, and much like a coach of a football team, says: "Good going, deemed laudable, way to go in the future. Breaking the rules is okay if you are just over-zealous, and do not possess any intent to exert influence over the jurors."

Other courts have performed better, as reflected in a very recent case where the same issue was involved. This case, although cited and quoted in the defendants' brief, apparently does not fit into the majority's glossing over concededly impermissible prosecutorial conduct. The name of the case is United States v. Hogan, 712 F.2d 757 (2d Cir.1983), heard before Lumbard, Cardamone, and Zomporo. The latter two names are new to me, but Judge Lumbard is well known as one of the most outstanding jurists in the United States. The opening paragraph of the opinion in that case should have been the opening paragraph of the opinion the Court should be issuing this date:

On this appeal our principal concern is directed not at the jury trial where the accused were found guilty, but at earlier events — those that transpired before the grand jury which indicted the appellants. More than in other cases, the minutes of the grand jury proceedings in this case reveal what can happen when the prosecutor is too determined to obtain an indictment. The temptations to cut corners, to ignore the rights of an accused, and to toss fair play to the winds gain ascendancy. Prosecutors presenting cases to grand juries are firmly subject to due process limitations and bound by ethical considerations. While we fully recognize that a court's power to dismiss an indictment following a conviction at trial rarely is exercised, the prosecution so violated these limitations and obligations as to mandate this indictment's dismissal. Here prosecutorial zeal only illuminates anew the insight of the old adage that the ends cannot justify the means.

Id. at 757-58.

It would be difficult to say that the prosecutorial conduct in the Hogan case was more excessive than that which we see in this case. The difference in outcome is the difference in courts. Any person interested in getting grand jury proceedings on proper track will want to read Hogan.

The least, the very bottom of the barrel least, this Court might do this day would not be to look the other way, but, if a dismissal is not within its perception, then to award the defendants a preliminary hearing, and call it a sanction — which, of course, it is not. But it is something.

ADDENDUM

Since the foregoing was written, at the cost of considerable time and effort, the majority opinion, p. 234, 743 P.2d p. 463, has been rewritten to correctly observe that Gerstein involved, as I wrote, that the probable cause type of hearing there involved was to justify any pretrial detention. I appreciate the change.

ON DENIAL OF PETITION FOR REHEARING

BISTLINE, Justice, dissenting.

The Court denies the petition for a rehearing without any comment. The supporting brief of the appellant's is more deserving. Courteously and politely written, it opens with the accurate observation that this case, one of first impression, has presented this Court with a unique opportunity to guide the bench and bar for years to come through the intricacies of the grand jury process, looking toward a properly balanced interposition of the judiciary between the prosecuting authorities and the citizenry. This the appellant pursues not just for the defendant Edmonson. It is therein said, and rightfully so, that this Court has eschewed the opportunity.

A strong point is made that if the Court continues in its ruling that the county prosecutors are blessed with unfettered charging discretion, then, at the least in this case Mr. Edmonson should be allowed a preliminary hearing. This is an entirely reasonable stance; common sense and common courtesy on the part of the Court should require close consideration before brushing the request aside. The opinion for the Court, as it presently stands tells the reader at p. 233, 743 P.2d at 462 that Edmonson's appeal is doomed because of his "failure to request a preliminary hearing ...," which is said to be "dispositive of this case." In the same paragraph the statement is made that a "substantive difference in the indictment and information procedures is the right to a preliminary hearing when an information is used." That is true, and it is well and good. It has been so forever. As appellant has pointed out in the supporting brief, the Court's opinion is stating that if an indicted defendant does not request a preliminary hearing, he has waived that right. But a defendant cannot waive a right unless he in the first place had that right.

Once again I may be remiss in my reading abilities, because I am unable to find in the code of criminal procedure or in the Court's own promulgated Idaho Criminal Rules any language which states that an indicted accused must request a preliminary in order to obtain one. Nor, is there any Idaho case-law so holding. And, entirely to the contrary, Criminal Rule 5 provides that when a defendant accused by complaint of a felony is taken before a magistrate for his initial appearance, along with other advice which he must be given, he shall be advised of "His right to a preliminary hearing ... the nature of a preliminary hearing, and the effect of a waiver thereof." Rule 5(f)(5). The defendant does not have to request a preliminary hearing. He will be given a preliminary hearing unless he elects to waive it. It is not a matter treated lightly by defense counsel, and by the magistrates who will ordinarily ascertain for certain if a defendant is making a knowing and intelligent waiver.

How, then, is it that the Court's opinion concedes that there is in an indicted defendant a right to a preliminary hearing, but he will receive it if only he thinks to make the request. How, in the name of common sense can such a person be held to a procedural requirement which has never found its way into a statute or into a court rule or by case precedent?

Judge Bengston in his considered decisions did make the observation that the defendants Hawkins and Freeland did request of the court an order granting a post-indictment preliminary hearing. Truly enough, such requests were made in those two cases. But, what those cases do not hold is that failure to make a request amounts to a waiver. Such a holding is yet to come from either of the Supreme Courts of those two states. What comes out of Hawkins and Freeland is simply that motions were made to obtain a right which was being asserted — the right of an indicted defendant to have a preliminary hearing, and thus be on an equal footing with defendants who are charged by a felony complaint. When the motion was made in Freeland, counsel had before them two earlier companion Oregon cases, State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), and State v. Hector Victor Edmonson, 291 Or. 251, 630 P.2d 822 (1981). The indicted defendant in State v. Clark, 291 Or. 231, 630 P.2d 810 (1981) did not move for an order granting him in a preliminary hearing, but moved for a dismissal based on the "failure to accord defendant a preliminary hearing after his indictment ..." 630 P.2d at p. 812 — exactly like the situation before us. In that case there had been a denial of defendant's request for a preliminary hearing after indictment. 630 P.2d at 823. Both Clark and Edmonson were authored by Justice Linde who, with his colleagues, saw the same issue squarely before them in both cases, although an actual request for preliminary hearing was not made in Clark. Clark was the lead opinion of the two and fully discussed the issue. Edmonson merely applied Clark. The indicted defendants in both of those cases relied on Hawkins, of which counsel had gained knowledge.

Defendant's principal argument, however, was predicated on Hawkins v. Superior Court, 22 Cal. 3d 584, 150 Cal. Rptr. 435, 586 P.2d 916 (1978), a decision based entirely on state rather than federal grounds. In any event, he could not have excluded issues of state law by pitching his attack on 14th amendment grounds. Cf. State v. Spada, 286 Or. 305, 594 P.2d 815 (1979). The case was argued together with State v. Edmonson, also decided today, which presented the same issue of equal rights, based in part on art. I, § 20, and there can be no claim that examination of that issue under the Oregon Constitution before the 14th amendment took respondent by surprise.

Clark, 630 P.2d at p. 812, f.n. 1.

The Hawkins decision held that indicted defendants must be afforded preliminary hearings equally with defendants charged by an information in order to meet the equality guarantee of California's constitution. Before turning to the Hawkins court's analysis, therefore, it is necessary to review the comparable Oregon guarantee.

Clark, 630 P.2d at p. 814.

The Oregon Supreme Court at length reviewed its prior case law which involved art. I, Sec. 20 of the Oregon Constitution,^[1] and saw that the issue presented was within the scope of the Oregon constitutional provision, and agreed with the California court that:

There is no question that the opportunity of a preliminary hearing is a "privilege" within the meaning of the constitutional guarantee, and potentially one of great practical importance. The grant or denial of this privilege is controlled by the state's choice, acting through the district attorney, to proceed by indictment or by information.

* * * * * *

In the present case, we agree with the California court in Hawkins that the opportunity of a preliminary hearing, with the procedural rights described above, offers important advantages over prosecution upon an indictment without a preliminary hearing.

But, the Oregon Court continued to adhere to an earlier opinion, City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980), which case was not at all in point on the issue presented in Clark, and in Edmonson, and in this case:

[18] We do not follow the Hawkins court to the conclusion, however, that this difference between two available procedures necessarily represents a denial of equal protection of the laws, regardless of showing which defendants receive one or the other procedure. Hawkins reached this conclusion in "classification" terms, by defining as two classes those who are indicted and those who are charged by information. But we think this is an example of the "circular" use of the concept of "class" mentioned above. The distinction to be tested is the use or nonuse of preliminary hearings. The "classes" said to fail the test of equal protection are the "class" of those defendants who receive preliminary hearings (because charged by information) and the "class" of those who do not (because indicted). But these defendants do not exist as categories or as classes with distinguishing characteristics before and apart from a prosecutor's decision how to charge one, or some, or all defendants. Aside from the manner in which the decision is made, see City of Klamath Falls, supra, 289 Or. at 784-785, 619 P.2d 217 (Lent, J., dissenting), defendants charged under either procedure are "classes" only as an effect of the dual procedural scheme itself. As in City of Klamath Falls, supra, "these defendants [i.e. those who do not receive a preliminary hearing] are not denied such a `privilege' as individual persons, but only because the are members of a `class' of persons who are prosecuted [by indictment] as distinct from persons prosecuted [on an information]." 289 Or. at 776, 619 P.2d 217.

[19-20] Each of the two procedures, however, is expressly authorized by the constitution itself. Properly administered, each satisfies the fourteenth amendment... . As stated above, the administration of laws and procedures provided in the constitution nonetheless must meet other constitutional standards, but the mere coexistence of the two procedures so as to limit preliminary hearings to one of them does not constitute forbidden class legislation. Without a showing that the administration of Or. Const. art. VII, § 5 and ORS 135.070-135.185 in fact denied defendant individually, or a class to which be [sic] belongs, the equal privilege of a preliminary hearing with other citizens of the state similarly situated, the circuit court did not err in denying the motion to dismiss the indictment.

* * * * * *

However, as with respect to his motion to dismiss the indictment for lack of a preliminary hearing, defendant has made no effort to show that the handling of his case violated those principles. Rather, he attacks the range of the prosecutor's discretion without previously stated standards as a denial of equal protection on its face. We do not believe equal protection goes so far as to require previously stated standards as long as no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation.

* * * * * *

The Court of Appeals found that there was such an explanation in this case.

The evidence showed that a number of persons were involved in the criminal activities for which defendant was indicted. Several of those individuals pleaded guilty to one or two charges and were granted immunity from further prosecution in exchange for their testimony against defendant before the grand jury and at his several trials. The prosecutor in charge of the cases testified that he treated defendant differently because the investigation showed that defendant was the instigator of many of the crimes and had demonstrated that he was a greater threat to society than the other individuals.

47 Or. App. [389] at 392, 615 P.2d 1043. We agree with the Court of Appeals that it was not error to reject the motion to dismiss the indictment.

Clark, 630 P.2d at pp. 817-819 (emphasis added).

Two words, "Properly administered," plus differently worded provisions of the California and Oregon constitutions, explain how the Oregon court could embrace much of what was written in Hawkins, and yet reach an opposite result.

The quality of being "properly administered" was found fatally missing two years later in Freeland, a graceful flip-flop from Clark, and bringing into Oregon criminal procedure the right of an indicted defendant to a preliminary hearing. Even dissenting Justice Jones opined that "the goal of the majority opinion is desirable." Freeland, 667 P.2d at p. 521.

The Supreme Court agreed with the trial court's holding that where the choice between prosecution by information — with right of preliminary hearing — or by indictment:

is made primarily at the discretion of the prosecution [sic, prosecutor] who makes his decision upon `logistical' and `tactical' criteria, the choice of procedure is administered purely haphazardly or otherwise on terms that have no satisfactory explanation under art. I, Sec. 20... .

and, "... defendant has been denied an equal privilege and equal protection ..." 667 P.2d at 519.

Whereas the trial court had dismissed the indictment for failure to accord the indicted defendant a preliminary hearing, the Supreme Court did not, as a generality, approve of the dismissal of the indictment as a remedy for not according a preliminary hearing:

[13] There remains the question whether the court's order dismissing the indictment was a correct remedy for what the court found to be an unconstitutional denial of a preliminary hearing.

Defendant does not claim that there is any flaw in the indictment or that it was not found by proper grand jury procedure. What is challenged here on grounds of constitutionally unequal administration is not that the prosecution obtained an indictment but that it refused a preliminary hearing. The two steps are not intrinsically incompatible. See, Model Code of Pre-Arraignment Procedure, supra n. 3. What defendant requested, first in the district court and then in the circuit court, was a preliminary hearing. He moved for dismissal of the indictment only as an alternative in case the preliminary hearing was not provided. The circuit court first signed an order on September 28, 1981 "that the state must schedule and hold a preliminary hearing within thirty (30) days of this date or the indictment will be dismissed." Upon a further motion of the defendant stating that by October 28, 1981, no preliminary hearing had been held, the court ordered the indictment dismissed.

There was considerable discussion of this procedure between the prosecutor and the circuit court. As the indictment itself was not challenged, the correct procedure, rather than dismissing the indictment, would have been to stay further proceedings under it until the state proceeded with a preliminary hearing or the defendant waived such a hearing. Dismissal then would be governed by the standards of ORS 135.747 and 135.750. In the circuit court, the prosecutor expressly stated at the beginning of the hearing that dismissal would be proper if the court agreed with defendant's position and the state decided not to proceed with a preliminary hearing. The court followed the suggestion of the parties, and the question was not pursued on appeal. It therefore is not before us for decision.

667 P.2d at p. 520. (Emphasis added).

Unlike Freeland, where the Supreme Court noted that there were no claims of error or impropriety in the proceedings leading to the indictment, the record here is replete with such. This, of course, was well displayed in my earlier opinion, and the claims defended against in the majority opinion by agreeing that there were violations of statutory provisions, and other improprieties — but nothing to get excited about.

That ground was well-plowed, and won't now be disked. It is only fitting to mention the dismay caused to able counsel who, notwithstanding, nicely tell it like it is:

"Prosecutor Hamlett has been casually censured by Judge Bengtson and by this Court for his improprieties before the Grand Jury, yet heads have simply turned away. This Court has thus far missed an opportunity to provide a stable framework for the Idaho grand jury system, which, although in its infancy, has now become very attractive as a prosecutor's vehicle.

"The third circuit case of United States v. Serubo, 604 F.2d 807, speaks to prosecutor abuses by finding:

`We recognize that dismissal of an indictment may impose important costs upon the prosecution and the public. At a minimum, the government will be required to present its evidence to a grand jury unaffected by bias or prejudice. But the costs of continued unchecked prosecutorial misconduct are also substantial. This is particularly so before the grand jury, where the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor's abuse of his special relationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened. We suspect that dismissal of an indictment may be virtually the only effective way to encourage compliance with these ethical standards, and to protect defendants from abuse of the grand jury process'. (Emphasis mine)

United States v. Serubo 604 F.2d 807, at 817

"The prosecutor abuses involved in this case are varied, numerous and pervasive throughout each issue presented on appeal.

"Mr. Hamlett utilized a magnitude of hearsay before the grand jury, the same including newspaper articles, letters, unsworn statements taken by State investigators, transcribed testimony from earlier hearings (Magistrate's Inquiry), and his own arguments.

"Federal Courts, having previously and ineffectively admonished prosecutors, are taking notice and pursuing corrective measures which are presently available to this Court. The Court in United States v. Estepa, 471 F.2d 1132, held:

`The many opinions in which we have affirmed convictions despite the Government's needless reliance on hearsay before the grand jury show how loathe we have been to open up a new road for attacking convictions on grounds unrelated to the merits. We have been willing to allow ample, many doubtless think too ample, latitude in the needless use of hearsay, subject to only two provisos — that the prosecutor does not deceive grand jurors as to "the shoddy merchandise they are getting so they can seek something better if they wish."'

United States v. Estepa, 471 F.2d at 1137.

"Estepa continued:

`Here the Assistant United States Attorney, whether wittingly or unwittingly — we prefer to think the latter, clearly violated the first of these provisos. We cannot, with proper respect for the discharge of our duties, content ourselves with yet another admonition; a reversal with instructions to dismiss the indictment may help to translate the assurances of the United States Attorneys into consistent performance by their assistants.'

United States v. Estepa, Supra at 1137

"In summarizing Estepa, supra, the Court, in United States v. Gallo, 394 F. Supp. 310, stated:

`Disturbed at the apparent disregard of its warnings to prosecutors in this Circuit concerning the widespread use of hearsay evidence before grand juries, the Court of Appeals felt compelled in Estepa to reverse the judgments of conviction because in the proper exercise of its judicial duties, it could not content itself with "yet another admonition". United States v. Estepa, supra at 1137.'

United States v. Gallo, 394 F. Supp. at 309-310 [315]

"This Court recognized that much hearsay was presented to the `Edmonson' Grand Jury, yet has apparently chosen to ignore, and thus allow the Prosecutor to ignore, the clear dictates of ICR 6(f) and Idaho Code 19-1105. It is a concern to this writer that prosecutors have been `turned loose' to pursue their own ends. This Court is perpetuating such eventuality by recognizing the problem and simply giving Mr. Hamlett and others similarly situated a slight tap on the wrist. Footnote 1 on Page 236, 743 P.2d page 465 of this Court's majority opinion in this case states: `Despite the rule we announce today, prosecutors should endeavor to preclude any hearsay evidence from grand jury proceedings.' Such an admonition seems hollow following this Court's tacit approval of the material Mr. Hamlett presented to the Latah County Grand Jury.

"In addition to hearsay, Mr. Hamlett presented the Grand Jury with his instructions, his arguments, his recollection and view of the evidence, his opinion on how many of them should always be present, and his view on witnesses credibility. The majority opinion agrees with Edmonson that some of Mr. Hamlett's statements are impermissible. Notwithstanding this Court's statement that: `... he (Mr. Hamlett) overstepped the bounds of permissible conduct', the Court ratified such impermissible conduct by concluding such conduct did not act to prejudice the Grand Jury in any way or infringe upon their independent thought process. It is difficult to grasp the continuity of such thought; the Court tells Hamlett to keep his hand out of the cookie jar as it hands him a cookie.

"The question of unauthorized persons being present before the Grand Jury also ties itself to Mr. Hamlett's conduct. As noted in this Court's opinion in the case at bar, `the purpose of Idaho Code § 19-1111 and I.C.R. 6(d), is quite clear. It is designed to guard the secrecy of the Grand Jury proceedings and to assure that the jurors are free from undue influence and intimidation thereby allowing them to make an independent determination of probable cause'. 1987 Opinion # 59, p. 16. By analogy, the case of United States v. Pignatiello, 582 F. Supp. 251 provides a good discussion on a Rule 6(d) violation for which the Court dismissed an indictment. In Pignatiello, an SEC attorney attended a grand jury proceeding as a special assistant to the United States Attorney. Although Federal statutes were involved, the similar circumstances to the case at bar are obvious. The Court found that because the government SEC lawyer was not properly sworn in as a government Attorney General Assistant, her presence was violative of (ICR) Rule 6(d), and warranted application of a per se rule mandating indictment dismissal.

"Notwithstanding ICR 6(d) and Idaho Code § 19-1111, Mr. Hamlett brought Mr. Brian Donesley, a Department of Law Enforcement Attorney, before the Grand Jury to testify and/or advise and/or argue the applicability of Idaho RICO statutes.

"Either as indicating additional prosecutor misconduct or as simply violative of ICR 6(d) and Idaho Code § 19-1111, Mr. Donesley's presence further removed the Grand Jury from its intended purpose of an independent, unprejudiced body. See also, United States v. Hogan, 712 F.2d 757.

"The Hogan case, supra, provides an excellent discussion on balancing the actions of a prosecutor before a Grand Jury and the rights of an accused. The Hogan Court stated:

`Interposing a grand jury between the individual and the government serves the intended purpose of limiting indictments for higher crimes to those offenses charged by a group of one's fellow citizens acting independently of the prosecution and the court. See Stirone v. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 273, 4 L. Ed. 2d 252 (1960). In this independent position, a grand jury performs two distinct roles. It serves as an accuser sworn to investigate and present for trial persons suspected of wrongdoing. At the same time — and equally important — it functions as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution'.

United States v. Hogan, 712 F.2d 757

"In conclusion, it is submitted that by allowing and tacitly approving the actions of Prosecutor Hamlett this Court threatens to remove the independent status of Grand Juries in Idaho and effectively destroy their intended purpose as shields of individuals like Mr. Edmonson and similar persons with the misfortune of facing a prosecutor and his/her `personal indictment panel'.

"By reconsidering the majority opinion and holding prosecutors to constitutionally mandated standards, values and actions, this Court can present Idaho with a Grand Jury system which is well conceived, well guided and capable of providing justice which preserves and protects the rights of individuals and the citizenry."

In conclusion, it is urged upon those members of this court who might be inclined to brush this petition aside, that as a Court we have accomplished nothing by the disposition of this appeal which is contained in our opinion for the Court. What substance is there in it which will serve to guide the trial bench? Little that I can find. There is a discussion of the Oregon cases of Clark, Edmonson, and Freeland, followed by a conclusion that Oregon's Supreme Court has ruled that that state's equal protection clause requires a prosecutor to treat similarly situated defendants equally. The discussion is immediately rendered meaningless by the majority's ipse dixit that we refuse to adopt the reasoning of the Oregon Supreme Court.

There follows an equally vapid discussion as to equal rights in general, which concludes that in Idaho we do have "two alternative charging procedures," either of which can be used, but "subject to an equal protection analysis." (p. 234, 743 P.2d p. 463). The opinion mentions Edmonson's challenge to being subjected to a secret grand jury proceeding resulting in an indictment, whereas other co-defendants were charged by information (probably following felony criminal complaint filed in a magistrate court), and Edmonson's systematic exclusion from the right to a preliminary hearing. (p. 234, 743 P.2d p. 463). Then the majority jumps to the Lem Woon v. Oregon case, a 1913 case from the High Court in Washington, D.C. The holding of that case, as set forth in the majority opinion (p. 234, 743 P.2d p. 463) is less than meaningless. It is a nothing. We are involved with a state of Idaho criminal prosecution, state of Idaho criminal procedure, and the right to a preliminary hearing under Idaho law. As I stated at the outset, where the majority decrees that Edmonson has waived his right to a preliminary hearing — which it declares dispositive — impliedly the majority has recognized such a right — a first in Idaho, except for Judge Bengston actually being first in time.

Probably the most outstanding statement by the majority is that "any advantage that a preliminary hearing affords a defendant is purely incidental to that purpose." (p. 234, 743 P.2d p. 463). If you can bring me two hundred lawyers who will accept that premise, I will show you two hundred lawyers who are entirely unversed in the criminal practice. That statement in the majority opinion shows that those in the majority have either not read the Oregon cases of Clark and Freeland, or the California Hawkins case, or perhaps see the opinions of those courts as being ill-advised, incompetent, and of no persuasion. Clark, quoted supra, at 233-234, 743 P.2d at 462-463.

In concluding its Part I, the Court demonstrates that, while acknowledging that the prosecutor elected to differentiate between the charging procedures against Edmonson as against the other defendants, he has produced insufficient "evidence of a deliberate and intentional plan to discriminate ..." (p. 235, 743 P.2d p. 464). Exactly what evidence the majority expects and wants is an unknown. In actuality it is a pure case of res ipsa loquitur, and the prosecutor should be made to assume and bear the burden of explaining away the facial differentiation in handling persons accused jointly of the same criminal conduct.

My May 29, 1987, opinion contained a paragraph which, on denial of petition for rehearing is needful of repeating. Four months have elapsed since I wrote that passage. The case against Ray Edmonson passed out of district court jurisdiction January 15, 1987, now almost nine months ago. Presumably the state of Idaho wants to take Roy Edmonson to trial, convict him, and jail him. And, perhaps he has been in jail all of this time.

In the paragraph above alluded to, this is what was written, short, and to the point:

As mentioned earlier, reason and practicality dictate that the district court be directed to allow the defendants the preliminary hearing which they seek. For the life of me I cannot understand the solicitor-general's objection. The preliminary hearing could have been held and over months ago, and the case pursued in district court.

Judge Bengston, from what he wrote, in all likelihood would have granted Edmonson a preliminary hearing had one been requested. Perhaps had he had the benefit of having it drawn specifically to his attention that in the Clark case there was no specific motion for a preliminary hearing, a preliminary hearing would have been given Edmonson, a trial would have shortly thereafter taken place, and this Court would not have concerned itself with an appeal which, insofar as it will guide the trial bench and bar, is a futile gesture.

Judge Bengston also favored us with a view that the legislature or the court should come up with a rule allowing an indicted felony defendant the right of a preliminary hearing, specifically.

This case served to provide the vehicle for doing so. Unfortunately as has been earlier noted, other than in the Minich^[2] case, this Court has fallen into the notion that rule by case-law is outmoded. Instead committees have to be formed, chaired by an interested member of the Court, gathered together from all parts of Idaho into Boise, and thereafter the Court gives birth to another rule.

Particularly, though, as was mentioned back in May of this year, I cited another much earlier case-law rule which Justice Bakes used to an advantage in Odenwalt v. Irving, all of which is found in my May Opinion, p. 244, 743 P.2d p. 473.

Continuing to be the most perplexing problem is the majority's absolute abstention from observing the Hawkins case from California. Even now on rehearing it obdurately does not deign to discuss it and is equally oblivious to Judge Bengston's discussion of and near persuasion to it. The trial bench and bar will be at a loss to accept such as responsible appellate practice. Justice Bakes was undoubtedly sincere when he cited prior authority from Wisconsin as the backbone of his Odenwalt decision. But where is he now, when the same principles necessarily require that we adopt and/or utilize the California court's Hawkins decision?

As a final comment, since our May opinion was released, a grand jury was convened in Twin Falls County. It indicted a number of defendants after considerable hearings. Thereafter, District Judge Hurlbutt and District Judge Meehl dismissed the indictments because of irregularities in the process — probably not an inexpensive loss of time and money and judicial resources.

Where we are today, so far as is readily discernible, is no better educated in grand jury proceedings than we were a year go, or five years ago. Before the turn of the century it was otherwise.

As of now the Solicitor-General may know the distinction between an indictment and a presentment. But if he does, he learned from the May 1987 opinions, not including the majority. If grand jury proceedings are going to be the wave of the future (apparently the intention of the Twin Falls prosecutor) this Court in disposing of the Edmonson appeal has done little to be of any assistance, and nothing in the way of guidance.

NOTES

[1] We note that the United States Constitution, through the fifth amendment, does not require a dismissal of an indictment based exclusively on hearsay evidence. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). The Court in Costello was concerned about judicial expediency:

"If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury." Id., 350 U.S. at 363, 76 S. Ct. at 408.

In Idaho, anytime hearsay evidence is used before a grand jury, the mini-trial concern of Costello becomes a reality. Despite the rule we announce today, prosecutors should endeavor to preclude any hearsay evidence from grand jury proceedings.

[2] As here, most grand jury proceedings need to be recorded to preserve a record for a reviewing court to pass upon any alleged defects in the proceedings (for example hearsay evidence). A deputy court clerk or court reporter operating recording equipment is essential to satisfy this function. Obviously, in such cases, a deputy court clerk or a court reporter must be considered an authorized person.

[3] Pirkey, supra, and Cory, supra, were both overruled in City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980).

[1] MR. STANDROD. As a member of the committee on the Bill of Rights, I desire to say that this matter was discussed among that committee and it was submitted to a great many members of this convention coming from different parts of the country. We thought it was better that this clause in this section should be placed there. In many of the counties of this territory, there is but little crime committed. In the county from which I come, there are perhaps one or two criminal actions during the year, and I believe for the last two years there has only been one criminal prosecution in the county upon the indictment of the grand jury. There is sometimes a case that a slight felony has been committed in the county — not a heinous offense — not an offense of any great moment, yet it requires, in order to prosecute the criminal that he should be presented by indictment, and in order to do that, it will require, before that matter can be brought before a court and tried, an expenditure, in order to obtain the grand jury to indict him, of at least five or six hundred and from that to a thousand dollars. All this talk about this section being unconstitutional is bosh, and gentlemen here say that this committee dared to come here and confront this convention with a section of this kind directly in contravention of the constitution of the United States, and are attempting to bring before this convention an innovation that was never heard of before. I say this is not true.

... .

... Furthermore, this clause does not abolish the grand jury system. If the district attorney of the county or the district should get to play too high a hand, if he should undertake to prosecute men where there was no evidence against them, and for the mere purpose of prosecuting them, most assuredly the judge of that district under this section has control of all that matter. He can at any time he thinks the district attorney is not performing his duty, call a grand jury under this section, and it is very likely the grand jury would be called once a year, or once in two years, as it became necessary. But I believe this will save the money of the counties of this territory, hundreds and hundreds of dollars a year in the prosecution of such crimes as horse stealing and cattle stealing and things of that nature that require to be presented by indictment. I believe there is no innovation in it that will be disastrous to the laws of this territory or to the enforcement of the, or whereby any party will be injured. And, coming from the section of country I do, and having seen this matter tested, I believe that it will save to my county alone hundreds of dollars a year. I trust this convention will adopt the section as it has been reported by this committee.

Constitutional Convention, pp. 262-65 (1889).

[1] Article I, section 20 provides:

No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.

[2] Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).