Recording of Grand Jury Proceedings In California

Recording and Transcription of Grand Jury Proceedings Consistent with the rule of secrecy, neither the 1851 Act nor the first enactment of the Penal Code in 1872 provided for any recording of grand jury proceedings. Grand jurors were permitted to disclose the testimony of witnesses only as required by the trial court in a subsequent trial. (Act, 218; former Pen. Code, 925; see People v. Tinder (1862) 19 Cal. 539, 545 (conc. opn. of Cope, J.).) Provision for the recording of grand jury proceedings was first added to the Penal Code in 1897. At that time, the Legislature authorized the reporting and transcribing of testimony in criminal cases by amending former section 925 to provide that "The grand jury, on the demand of the District Attorney, whenever criminal causes are being investigated before them, must appoint a competent stenographic reporter to report the testimony that may be given in such causes in shorthand, and reduce the same afterward, upon the request of the said District Attorney, to longhand; a copy of the said testimony so taken must be delivered to the defendant in any such criminal cause upon the arraignment after indictment of the said defendant." (Stats. 1897, ch. 142, p. 204; In re Kennedy (1904) 144 Cal. 634, 635 [78 P. 34].) The reporting of testimony was deemed to be "for the benefit of the district attorney--probably for the purpose of preventing witnesses of a certain character from safely giving testimony before the trial jury differently from that which they have given before the grand jury." (144 Cal. at p. 638.) Subsequently, the indicted defendant's interest in the testimony transcript became recognized. In 1911 and 1927, respectively, the Legislature again amended former section 925, first to delete the provision that testimony would be transcribed only "upon the request of the . . . District Attorney," and then to delete the provision that testimony would be reported only "on the demand of the District Attorney." (Stats. 1911, ch. 254, 1, p. 434; Stats. 1927, ch. 684, 2, p. 1156.) The statute as amended established an indicted defendant's absolute right to a transcript of the testimony, making it mandatory that defendant be served with a copy of the transcript after an indictment had been returned. Courts began to acknowledge that it was necessary for the indicted defendant to be provided with the details of the offense with which he or she was charged in order to prepare for trial. ( People v. Beesly (1931) 119 Cal. App.. 82, 84 [6 P.2d 114]; see also People v. Yant (1938) 26 Cal. App. 2d 725, 729 [80 P.2d 506].) In 1959, former section 925 was replaced with sections 938 and 938.1, the current provisions for the reporting and transcribing of testimony. Section 938 provides, in pertinent part, "(a) Whenever criminal causes are being investigated before the grand jury, it shall appoint a competent stenographic reporter. He [or she] shall be sworn and shall report in shorthand the testimony given in such causes and shall transcribe the shorthand in all cases where an indictment is returned or accusation presented." The companion section, section 938.1, provides, in pertinent part, "(a) If an indictment has been found or an accusation presented against a defendant, such stenographic reporter shall certify and deliver to the county clerk an original transcription of his [or her] shorthand notes and a copy thereof and as many additional copies as there are defendants, . . . the county clerk shall file the original of the transcript, deliver a copy of the transcript to the district attorney immediately upon his [or her] receipt thereof and deliver a copy of such transcript to each such defendant or his [or her] attorney. . . (b) the transcript shall not be open to the public until 10 days after its delivery to the defendant or his [or her] attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise . . . ." (See Stats. 1959, ch. 501, 2, pp. 2451-2452.) The Penal Code is silent as to the reporting and transcribing of any portion of the grand jury proceedings other than testimony pursuant to sections 938 and 938.1. (See, e.g., Stern v. Superior Court (1947) 78 Cal. App. 2d 9, 13 [177 P.2d 308] ["the testimony given . . . is all that is required to be reported."].) The question to what extent an indicted defendant may discover other portions of the proceedings has developed with the evolution of defendant's rights to challenge the indictment.