Bipartisan legislation proposed by Rep. Jennifer Williamson (D-Portland) would require that all grand jury proceedings be recorded and made available to defense attorneys. Individuals indicted would be able to receive copies of the recordings prior to a trial.
The Oregonian recently published an editorial in favor of SB 365, calling it an “important step toward transparency” for Oregon’s justice system.
Others appear less than the sold on the measure. Oregon prosecutor Josh Marquis, who responded with an opinion editorial in The Oregonian, writes that SB 365 is a “solution in search of a problem.”
Grand juries are by design less formal and more relaxed than normal court room proceedings. There is no judge. Typically only the lawyers, witness and jurors are present, and jurors have wide latitude to summon a broad range of testimony to determine whether an indictment should be brought against an individual. Moreover, grand jury proceedings are not public hearings and, in contrast to the courtroom, are conducted in strict secrecy. This serves a couple primary purposes. Witnesses are encouraged to speak freely without fear of retaliation, and defendants’ identities are kept secret in the event he or she is not indicted.
Across the country, grand jury reform bills have been proposed in the wake of the Ferguson , Missouri shooting of an unarmed African-American, and a grand jury’s subsequent decision not to indict the police officer involved. Many of these measures are being proposed in states where grand jury testimony is already recorded, and are designed to further scrutinize for racial bias in related proceedings.
In Oregon, Multnomah County now records sworn grand jury testimony related to cases involving police use of deadly force. Transcripts are released to the public following a subsequent trial. The county started the practice following the 2010 fatal shooting by a police officer of Aaron Campbell, who was unarmed at the time. Though such cases capture the public imagination and are socially volatile, they are relatively infrequent.
The question surrounding SB 365 is whether a broad policy of recording every question asked by each grand jury member to witnesses enhances or undermines Oregon’s judicial process. According to the bill’s supporters, SB 365 would give the average Oregonian the same protection Multnomah police officers enjoy. Interestingly, related proposals following Ferguson appear in some cases appear to be fueled by the assumption that law enforcement was not properly held to account and that the grand jury process is flawed.
There are three primary issues related to the proposed reform.
First, and most important to the practical impact of SB 365, recording grand jury proceedings and making them immediately available to defense attorneys would potentially make it less likely for victims or witnesses to come forward. The closed nature of the grand jury process is meant to encourage the participation of witnesses, who might otherwise be unwilling to provide meaningful testimony for grand juries to consider when deciding a possible indictment. Opponents of SB 365 suggest this testimony, which is much easier to secure outside of a courtroom, may be much harder to come by if potential victims or witnesses could be scrutinized for very word spoken to a jury or their life may become fodder for courtroom drama. This could be especially true in cases of child sexual abuse or domestic violence cases, where the fear factor is particularly acute.
Secondly, there are privacy concerns among some who fear that recorded testimony may end up in the public domain. As previously noted, a primary purpose of the grand jury is to protect the identity of individuals under scrutiny for possible serious illegal conduct, but who are never indicted by a grand jury. Recording sworn testimony increases the possibility of public disclosure.
There is also the matter of potential cost to taxpayers. Upgrades to accommodate recording in grand jury rooms at local courthouses would be funded by taxpayer dollars. Upgrades would involve expensive technical equipment, as well as require trained staff to operate it. It’s not clear what such costs would be statewide, but it would fall to taxpayers to fund whatever upgrades and personnel needs are required.
The Oregonian acknowledges that these and other issues are important and need to be addressed if the bill is approved. However, the board also notes that more than 30 other states with a similar policy have managed to navigate related challenges. Sen. Williamson intends to convene a group of lawyers from both sides of the courtroom to address these and other issues.
The only documented case in Oregon of grand jury abuse occurred in the early 1990s in Astoria. A district attorney had a feud with local police and convinced members of a grand jury to falsely indict two officers. The attorney was eventually found guilty and spent time in prison.