by M. Connor McCain
Introduction
“[S]ecrecy is for losers. For people who don’t know how important the information really is.”[1] Harsh words from former Senator Daniel Patrick Moynihan, but these words hold value when evaluating the current state of a criminal defendant’s access to exculpatory evidence that may be provided by witnesses in grand jury proceedings across Louisiana. As a point of public policy, the Louisiana Supreme Court has been clear that the secrecy of the grand jury should be carefully maintained, but that secrecy is not absolute.[2] Although the Court breached the veil of grand jury secrecy and allowed the state to use the grand jury transcript of a witness’s testimony for impeachment purposes at trial in State v. Ross, the test the Court applied places a practically impossible burden for a criminal defendant to overcome.[3] It is difficult to balance Louisiana’s current stance that favors secrecy[4] against the State Attorney’s legal and ethical duty to disclose evidence favorable to the accused.[5] The Louisiana legislature should review the state’s current grand jury policies and procedures, review the test used in Ross, and consider codifying a new test that better balances the need for grand jury secrecy against the constitutional rights of the accused.
I. Louisiana Grand Jury Basics
In Louisiana, the prosecutions of felonies are typically commenced by indictments or by bills of information.[6] However, if the crime is punishable by death or life imprisonment, the charge must be brought to a grand jury for indictment.[7] A grand jury is composed of members of the community that act as an investigative and accusatory body of the district court.[8] A district attorney will present a case to the grand jury against a suspect, and the grand jury must decide what, if anything, the accused should stand trial for. [9] Louisiana law provides that “[a] grand jury should receive only legal evidence and such as is given by witnesses produced, or furnished by documents and other physical evidence.”[10] Grand jury sessions are limited to only the jurors themselves, the district attorney, their assistant district attorneys, the attorney general or an assistant attorney general, the witness who is testifying, and the person recording the proceedings and an interpreter if the witness cannot speak English.[11] Notably missing from this list are the accused and their attorney.[12] The accused may only be present for such time that they are the witness, and only during that time may their attorney be present; although, the attorney may not object or otherwise participate in the session.[13] Since neither the “target” nor their attorney are allowed to be present during any other portion of the grand jury session, they are not only unaware of what the witnesses testified (although there is a stenographer present), but they are barred from knowing what witnesses, if any, were called by the state at all.[14]
Limiting the parties that are present at the grand jury session is just one of the ways Louisiana protects grand jury secrecy. All parties present including the jurors themselves, any witnesses, and even the stenographer are obliged to take an oath of secrecy.[15] The Louisiana Supreme Court provided a few justifications for ensuring grand jury secrecy, which include the desire to prevent the flight of the party being investigated, to aid the grand jury to speak freely in their deliberations, to attempt to prevent subornation of perjury or witness tampering, and to encourage witnesses to provide honest testimony.[16] These policy justifications, while mostly aligned with protecting the prosecution, also include the desire to protect parties from having their reputations besmirched if they are found exonerated by the grand jury.[17] While the policy justifications for the desire to keep the contents of the grand jury behind lock and key have merit, they come at a cost to the accused, to the “people who don’t know how important the information really is.”[18]
II. State v. Ross and the Exceptions to Grand Jury Secrecy
Louisiana’s hardened stance shielding the confidentiality of grand jury procedures has placed a heavy burden on the state and a nearly impossible burden on the accused when the respective parties request the disclosure of grand jury materials.[19] The Louisiana Supreme Court in State v. Ross stated that “[a] party seeking disclosure [of grand jury materials] has the burden of proving a ‘compelling necessity’ for the material sought . . . .”[20] This need must be demonstrated with particularity, meaning that in order for a party to have the material disclosed, the party must show that without access to the grand jury material, their case would be “‘greatly prejudiced’ or that an ‘injustice would be done.’”[21]
In Ross, the Louisiana Supreme Court held that the State demonstrated a compelling need for the grand jury material sought by showing the crime’s lone eyewitness recanted their prior statements identifying the defendant as the murderer at trial.[22] The eye witness’s statement to the police was inconsistent with their trial testimony, and that statement was introduced to impeach the witness in the trial. Additionally, the State requested the grand jury testimony of the witness, as it was made under oath and contained additional details not present in the police statement.[23] The Louisiana Supreme Court reversed the appellate court’s decision, affirming the district court’s decision to turn over the portion of the grand jury transcript including the witness’s testimony to the State and reinstating Mr. Ross’s conviction.[24]
III. Problems with the Test Applied in State v. Ross
The decision in Ross was justified, but applying the test universally is short sighted. In Ross, the State was the party requesting access to the grand jury testimony for impeachment purposes.[25] In this situation, the requesting party would be acutely aware of what the eyewitness had testified to previously. If the roles were reversed and Mr. Ross had been the requesting party, it is very difficult to conceptualize how exactly he would be able to meet the Supreme Court’s demand for pleading with particularity, as Mr. Ross, nor his attorney, have the ability to know which witnesses, if any were called, let alone what they previously testified to.[26] A defendant is unable to make a generalized request, as the Louisiana Supreme Court has also held that “[a] general wholesale request for [grand jury] transcripts does not satisfy the requirement of demonstrative particularized need.”[27] If the courts are unwilling, the Louisiana legislature should consider whether the “requirement of demonstrative particularized need” is constitutional in the first place.
Defendants, and not the State, are constitutionally entitled to due process.[28] In Brady v. Maryland, the United States Supreme Court held that suppression of evidence by the prosecution that is favorable to the accused after request by the defense violates due process under the Fourteenth Amendment when the evidence is material to either guilt or to punishment.[29] This includes evidence that impeaches the testimony of a witness where the reliability of the witness may determine the guilt or innocence of the accused.[30] Under the current test used in Ross, however, the accused is practically barred from accessing potentially exculpatory evidence arising in the grand jury proceeding.[31] Although the Louisiana Supreme Court admits that the state law protecting the secrecy of grand jury testimony must yield to constitutional rights, in practice that may not be the case.[32]
Imagine a scenario in which there are two witnesses to an incident. These witnesses are named Ashley and Brianna. Ashley gives a statement to police that implicates the defendant, Danny. That statement is put into the police report, and Ashley is called to testify to the grand jury. Once under oath and under the penalty of perjury, Ashley changes her story completely. Brianna, witness to the same incident, gave a similar initial statement to the police implicating Danny. Brianna was also subpoenaed to testify before the grand jury, but Brianna does not change her statement. If the grand jury indicts Danny, the state can now choose to not call Ashley and instead only call Brianna at trial. Meanwhile, Danny’s only knowledge of Ashley would be that she implicated him in the initial police report and that he was subsequently indicted. Danny would have no way of knowing whether Ashley testified before the grand jury, nor would he know that she recanted her story, which would be a reason why he would want to call Ashley as his own witness. Danny cannot make a general request for any exculpatory evidence, as such a request “does not satisfy the requirement of demonstrative particularized need.”[33] Danny could be convicted without ever knowing or being able to tell the jury that one of the two witnesses completely changed her story when faced with the penalty of perjury. However, under similar facts when the roles are reversed, the State can convert their shield into a sword, while defendants like Mr. Ross are left defenseless.
Conclusion
The Louisiana legislature should take action to protect due process rights in Louisiana and ensure defendants have a right to a truly fair trial. Secrecy has its purpose and its place, but the legislature must ensure that secrecy is not a pretext to allow the State to use grand jury testimony as both a sword and shield. While the legislature codified a duty to disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury in 2012,[34] the ability to ensure compliance is limited due to the secrecy laws restricting who may witness the proceedings in the first place.[35] The honor system is insufficient to ensure that constitutional due process rights are being protected, and the lack of oversight should trouble not only the Louisiana legislature, but all Louisiana citizens.
The legislature should consider many options, but the major focus should be to lower the burden currently placed on defendants while providing some form of additional oversight for the duty to disclose grand jury evidence favorable to the defendant. One option the legislature may consider is making in camera inspection of the grand jury minutes automatically available upon request. The Louisiana Supreme Court authorized in camera review, but the review, or lack thereof, is under the sole discretion of the judge.[36]
As long as the test used in State v. Ross is still being applied to defendants requesting access to exculpatory grand jury material, the late Senator Daniel Patrick Moynihan’s quote still rings true: “[S]ecrecy is for losers. For people who don’t know how important the information really is.”[37] The accused across Louisiana will remain losers who may never know how important the information that dies in the dark really is.
[1] Reuters, Daniel Patrick Moynihan’s 1998 Lesson on the Price of Secrets (2007), https://web.archive.org/web/20140102063851/http://blogs.reuters.com/jackshafer/2013/12/27/daniel-patrick-moynihans-1998-lesson-on-the-price-of-secrets/ [https://perma.cc/X74B-ULBQ].
[2] See State v. Ross, 144 So. 3d 932, 937 (La. 2014).
[3] See generally id.
[4] Id.
[5] See La. Rules of Prof. Conduct r. 3.8 (2023); see also Brady v. Maryland, 373 U.S. 83 (1963).
[6] See La. Const art. 1, § 15; see also La. Code Crim. Proc. art. 382 (2023).
[7] See La. Const art. 1, § 15; see also La. Code Crim. Proc. art. 382 (2023).
[8] Nick Gremillion, What is a grand jury and how does it work?, WAFB9 (Nov. 30, 2017, 5:50 PM), https://www.wafb.com/story/36966860/what-is-a-grand-jury-and-how-does-it-work/ [https://perma.cc/A4MD-SQET].
[9] See id.
[10] La. Code Crim. Proc. art. 442 (2023).
[11] La. Code Crim. Proc. art. 433(A)(1) (2023).
[12] Id.
[13] Id. art. 433(A)(2).
[14] See generally id.
[15] Id. arts. 431, 440–41.
[16] See State v. Ross, 144 So. 3d 932, 937 (La. 2014).
[17] Id.
[18] Reuters, supra note 1.
[19] See generally Ross, 144 So. 3d at 937.
[20] Id.
[21] Id. at 937–38.
[22] Id. at 941.
[23] Id.
[24] See id.
[25] See id.
[26] See generally Ross, 144 So. 3d 932; see also La. Code Crim. Proc. art. 433(A)(1) (2023).
[27] Ross, 144 So. 3d at 938 (citing In re Grand Jury, 737 So. 2d 1, 8 (La. 1999)).
[28] U.S. Const. amend. XIV.
[29] Brady v. Maryland, 373 U.S. 83 (1963).
[30] U.S. Const. amend. XIV.
[31] See generally Ross, 144 So. 3d 932.
[32] See id. at 939.
[33] Id. at 938 (citing In re Grand Jury, 737 So. 2d 1, 8 (La. 1999)).
[34] La. Code Crim. Proc. art. 434.1 (2023).
[35] Id. art. 433.
[36] See State v. Peters, 406 So. 2d 189, 191 (La. 1981).
[37] Reuters, supra note 1.