by Steve Doell, Crime Victims United
To: All Oregon State Senators and Representatives
As many of you may know, I have been a member of Crime Victims United for twenty-one years, sixteen years as president, and have appeared repeatedly over those years to represent the interests of crime victims in the legislature. I wish to address my deep concerns over SB 822, now being considered in the Joint Committee on Ways and Means, which mandates the recording of grand jury testimony in many serious violent offenses. In its current form it would amount to an assault on the interests of vulnerable victims, many of them children, usually only days after suffering grievous injuries or psychological trauma at the hands of criminal offenders.
While the recording of grand juries is a feasible, although expensive, procedure that has been accomplished in many states across the nation, if this state decides to embark on that procedure, care must be taken to protect the interests of victims and witnesses, as is done elsewhere in the nation.
The process proposed in SB 822, however, is little more than a mechanism designed and drafted by defense attorneys whose purpose has nothing to do with procedural transparency, as claimed, but is simply an instrument to obtain additional discovery, and which will, by design or practice, intimidate victims and witnesses.
As SB 822 currently stands, child victims, victims of sexual assaults, domestic violence, kidnapping, those injured in assaults or attempted murders, and at times family members of murder victims will be required to appear in what will amount to a public hearing just days after the crimes occurred. The type of caution and care that is currently afforded to these traumatized individuals will disappear, as SB 822 turns the grand jury process into what amounts to an adversarial deposition procedure.
SB 822, in its current form, makes no attempt to protect the interests of these victims, or of witnesses.
Paradoxically, Oregon’s law on criminal preliminary hearings, the alternative procedure to grand juries, has for 35 years provided relief for vulnerable victims and witnesses where testimony constitutes a hardship. SB 822 fails to provide even the same limited level of victim protection that the Oregon legislature felt appropriate for preliminary hearings back in 1981, well before the advent of victims rights laws. This is a telling sign that this bill is simply an attempt to transform grand jury procedures into a defense attorney discovery process, while trampling on the legitimate interests of injured and traumatized victims of serious violent crimes, including children of all ages. Please see the attached bullet points that provide a more detailed breakdown of the issues concerning victims and grand jury recordation.
Other jurisdictions, including the federal government and the state of California, have made serious efforts to record grand juries while introducing evidentiary protections for witnesses and victims. SB 822 does none of that.
We urge you to oppose SB 822 until adequate measures can be drafted to protect those among us, especially vulnerable victims, who criminal laws are designed to protect. We believe that the vast majority of Oregonians, once apprised of the origins and goals of SB 822, would agree with that position.
- SB 822 fails to provide any protection whatsoever to grand jury witnesses and victims. Victims, including young children, will be required to testify within days of the crime, while being recorded under oath for tactical use by defense attorneys who will seek to use that testimony against the victim.
- Other states that have established recording procedures for grand juries have done so with adequate protections for witnesses and victims. In California, for instance, the statements of grand jury witnesses may be presented by police officers who took their statements in the criminal investigation.
- In Oregon, paradoxically, there are greater victim protections provided for witnesses in preliminary hearings than exist in SB 822. See ORS 135.173. These protections were provided by the legislature in 1981, well before the advent of victims rights legislation. SB 822 makes no attempt to even provide the same modest protections for victims and witnesses as the legislature thought necessary in a much earlier era.
- In Oregon, under SB 822, paradoxically, more protections would be afforded to police officers in testifying in grand jury proceedings than are afforded victims and witnesses. Oregon law allows police officers to submit their police reports to grand juries through another officer without testifying or being recorded themselves. SB 822 would deny victims and civilian witnesses the same protections and courtesies that the law provides for sworn officers.
- Under SB 822, personal identification information, such as addresses, dates of birth, and medical information will become part of the record, and will expose witnesses to potential identity theft and fraud.
- Under SB 822 the identity of grand jurors, all personal conversation between grand jurors, and the particular questions asked by individual grand jurors will not be protected, and will be the subject of a public record.
- SB 822 provides no clear protection for the privacy of grand jury recordings in cases where no indictment is returned. The bill indicates that grand jury records are “exempt from disclosure under ORS 192.502.” However, such exemptions are not unconditional unless specified. “A public body is ordinarily free to disclose a record or information even if an exemption applies to that record or information” (Oregon Attorney General, Public Records and Meeting Manual). Public agencies in possession of grand jury records may choose, at their discretion, to waive exemptions to disclosure and release such records.
- Large segments of grand jury records are protected under federal law, such as medical records, consumer information, and personal identification information. Unless those records are exculpatory to an accused defendant under federal constitutional law, they remain protected from disclosure. SB 822 makes no provision for the protection of these records, and thus will result in the violation of federal privacy statutes, and will expose the state to litigation for those whose records might be released.