Secrecy of Grand Jury Proceedings In California

"The secrecy of all grand jury proceedings is 'deeply rooted in our traditions.' " (McClatchy Newspapers v. Superior Court (1988) 44 Cal. 3d 1162, 1173 [245 Cal. Rptr. 774, 751 P.2d 1329] (McClatchy), quoting Illinois v. Abbott & Associates, Inc. (1983) 460 U.S. 557, 572 [103 S. Ct. 1356, 1363-1364, 75 L. Ed. 2d 281].) the original purpose of the secrecy requirement, dating back to 12th century England, was to prevent the escape of offenders. Other reasons were to reduce the influence of the monarch, and to guarantee the impartiality of the grand jury. (Ibid.) Since the very beginning of the grand jury system, " 'for the most part, grand jury proceedings . . . have been closed to the public and records of such proceedings have been kept from the public eye.' " (Daily Journal Corp. v. Superior Court (1999) 20 Cal. 4th 1117, 1126 [86 Cal. Rptr. 2d 623, 979 P.2d 982] (Daily Journal), quoting McClatchy, supra, 44 Cal. 3d at p. 1173.) The secret grand jury has been a part of California's criminal justice system since its beginning. In 1849, the first California Constitution provided that no person would be held to answer for a capital or infamous crime "unless on presentment or indictment of a grand jury." (Cal. Const. of 1849, art. I, 8.) The common law requirement of secrecy in grand jury proceedings was first codified in 1851 in the Criminal Practice Act (hereafter, the Act), and was maintained when California enacted its first Penal Code in 1872. (Stats. 1871-1872, 926, p. 540; Stats. 1871-1872, 927, p. 540; see also Ex parte Sontag (1884) 64 Cal. 525, 527 [2 P. 402].) "Although the grand jury was originally derived from the common law, the California Legislature has codified extensive rules defining it and governing its formation and proceedings, including provisions for implementing the long-established tradition of grand jury secrecy. (See Pen. Code, pt. 2, tit. 4, chs. 1-3, 888-939.91; see also Pen. Code, 940- 945.)" ( Daily Journal, supra, 20 Cal. 4th at p. 1122.) Today, the whole matter of secrecy and disclosure of grand jury proceedings is regulated by statute. (Ibid.) for instance, with the exception of matters affecting the public welfare, where public sessions may be ordered ( 939.1), all grand jury proceedings are to be conducted in secrecy. ( 915 [grand jury "shall retire to a private room" to conduct inquiry into offenses].) The district attorney may appear before the grand jury "at all times" to give information or advice or to question the witnesses. ( 935.) However, the defendant is not given notice of the proceedings and is not entitled to appear in person or by counsel. (See Johnson v. Superior Court (1975) 15 Cal. 3d 248, 254 [124 Cal. Rptr. 32, 539 P.2d 792].) Moreover, after initially instructing the grand jury as to its duties, "the judge of the court . . . shall not be present during the sessions of the grand jury" unless the grand jury requests the judge's presence. ( 914, 934.) Thus the grand jury is entitled to ask and receive advice from the superior court but is not required to do so. ( 934; see generally Farnow v. Superior Court (1990) 226 Cal. App. 3d 481, 489 [276 Cal. Rptr. 275].) Apart from necessary and authorized appearances, as specified by statute, no person is permitted to be present during criminal sessions of the grand jury except the members of the jury and witnesses actually under examination. ( 939.) Deliberations of the grand jury are completely private; no person other than the grand jurors themselves may be present during "the expression of the opinions of the grand jurors, or the giving of their votes" on any criminal matter before them. ( 939.) Grand jurors must take an oath that they will not disclose any evidence brought before the grand jury, anything said by any grand juror, or the manner in which any grand juror voted on any matter before the grand jury. ( 911; see generally Daily Journal, supra, 20 Cal. 4th at pp. 1122-1123.) The purposes served by the " 'strong historic policy of preserving grand jury secrecy' " are several. (McClatchy, supra, 44 Cal. 3d at pp. 1174-1175, quoting United States v. Sells Engineering, Inc. (1983) 463 U.S. 418, 428 [103 S. Ct. 3133, 3140, 77 L. Ed. 2d 743].) First, secrecy encourages prospective witnesses to come forward and testify fully and frankly, knowing that those against whom they testify will not be made aware of the testimony. Further, there is the risk that those about to be indicted will flee, or will try to influence the grand jurors to vote against the indictment. and finally, " 'by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.' " ( McClatchy, supra, 44 Cal. 3d at pp. 1174-1175.) The court in McClatchy noted that "the encouragement of candid testimony and the protection of witnesses and their reputations are best achieved when secrecy is maintained even after the conclusion of a grand jury investigation." ( McClatchy, supra, 44 Cal. 3d at p. 1175.) The McClatchy case, however, did not involve a criminal indictment grand jury ( 917) but rather a civil grand jury carrying out its "watchdog" function to investigate and report on the affairs of local government. ( 919, 925 et seq.) In such a case, there is a purpose to be served by requiring the grand jury to issue a report stating its findings without revealing the identity of the witnesses or the exact content of their testimony. the court in McClatchy acknowledged the difference between this function of the grand jury and the case where a criminal grand jury returns an indictment. Where the grand jury proceeding has resulted in a criminal indictment, the same reasons for maintaining the secrecy requirements are no longer present. This is because the indictment is " 'the first step in a long process in which the accused may seek vindication through exercise of the right to a public trial, to a jury, to counsel, to confrontation of witnesses against him and, if convicted, to an appeal." ( McClatchy, supra, 44 Cal. 3d at p. 1176, quoting Wood v. Hughes (1961) 9 N.Y.2d 144 [212 N.Y.S.2d 33, 73 N.E.2d 21].) The risk of flight is less of a concern since the indicted defendant has been accused and presumably will have been arrested. There is no longer a need to prevent the importuning of grand jurors, since they have completed their deliberations and have returned the indictment. And finally, although the grand jurors were sworn to secrecy regarding disclosure of evidence, after the indictment is handed down a transcription of the entire testimony is made available to the indicted defendant, to the district attorney and to the public. ( 938, 938.1 [former 925].)