Restricting access to grand jury testimony

[Dancing David]

I heard about this on NPR and here is one news story I was abloe to find, is it constitutional to restrict a defendant's access to grad jury testimony. The problem is that gangs are using the transcripts to scare and kill witnesses.

http://www.bostonphoenix.com/boston/news_features/other_stories/documents/05200250.asp

There’s broad support for aggressive anti-gang legislation. Last fall, the Senate unanimously passed a bill aimed, in part, at ending retribution against those who testify in violent-crime cases. The bill would allow judges to restrict defendants’ access to grand-jury testimony, which defendants can use to identify and silence hostile witnesses. It would also lower the bar on perjury charges, increase gun-crime penalties, and create a statewide witness-protection program.

 

[TragicMonkey]

I can see the need....but would that violate all the business about the right to confront your accuser?

 

[a_unique_person]

A lot of people who witness crimes don't come forward to give evidence. I can understand why.

 

[Bob Klase]

I can see the need....but would that violate all the business about the right to confront your accuser?

I don't think so. You could confront them at your trial. If they didn't testify at the trial then their grand jury testimony wouldn't really mean anything.

 

[jj]

Let's look at another aspect of this. Could this be used to indict people simply to harrass them?

How does this relate to the defendant's ability to conduct a defense, as well, since the defense is supposed to have the same information that the prosecution has?

 

[drkitten]

How does this relate to the defendant's ability to conduct a defense, as well, since the defense is supposed to have the same information that the prosecution has?

That's what I'd be concerned about as well. The prosecution isn't supposed to be able to spring any surprises at trial, including surprise witnesses. If I as an attorney didn't know who was going to be testifying against my client, I wouldn't be able to investigate their background and determine whether or not I could shake their credibility.

And I'd darn sure complain about it to the relevant Federal court about the unfairness of it all, in violation of a half-dozen rules of procedure and Constitutional provisions.

 

[Suddenly]

And I'd darn sure complain about it to the relevant Federal court about the unfairness of it all, in violation of a half-dozen rules of procedure and Constitutional provisions.

Well... if there is a statutory change, that it violates a rule of procedure is of no consequence. That changes state law, and Federal Rules of procedure hold no authority in a state court. Plus there is no such requirement under the Federal Rules of Criminal Procedure. Unless there is a state constitutional provision construed to require such disclosure, such a challenge is doomed.

There is also a problem with claiming a federal constitutional right to discover the identity of the state's witnesses, as one does not exist:

It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general constitutional right to discovery in a criminal case, and Brady did not create one; as the Court wrote recently, “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . .”Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973).

Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837 (1977) (emphesis added)

Criminal discovery (outside of a Brady situation and so on) is a creature of statute, and it can be changed by same. Some states have rules requiring witness list disclosure (West Virginia does) and some districts may have local rules. There is no federal constitutional requirement for any of these.

In general, one cannot get grand jury testimony except when the testimony is a prior statement of a prosecution witness (and then only after that witness testifies) or upon showing that there is reason to believe foul play was afoot in order to secure an indictment. These proceedings are secret by nature and design.