On appeal, Bates argued that the
trial court abused its discretion in
not conducting an in-camera
inspection of the transcripts of the evidence presented to the grand jury in
his criminal case to determine whether the testimony before the grand jury was
inconsistent with testimony presented at trial.
State v. Bates, supra. As Wikipedia notes, when an appellate court
reviews a trial judge’s ruling for abuse of discretion, the ruling “will not be
reversed unless the decision is unreasonable.”
And as Wikipedia explains, a grand jury “is a type
of jury that determines whether a criminal indictment will
be issued.” As Wikipedia also notes, it
is known as a “grand” jury because historically grand juries have had 16-23
jurors, which makes them larger (“grander”) than trial juries.
As Wikipedia also notes, the 5th Amendment
requires that the federal system use grand juries to bring charges, via an
indictment, for serious crimes. And as this
article notes, the U.S. Supreme Court has not interpreted that part of the 5th
Amendment as binding on the states, which means that the states do not
have to use the grand jury. Notwithstanding that, most, if not all,
U.S. states still use
the grand jury, in various ways.
A distinctive characteristic of grand jury investigations is
that everything that occurs in the grand jury must be kept secret by those that
are privy to its proceedings, i.e., the grand jurors, the prosecutor, an
interpreter if a witness needs one and a court reporter who transcribes the
proceedings.
Rule 6(e) of the Ohio Rules of Criminal Procedure states
that these individuals are not to disclose “matters occurring before the grand
jury”. This is consistent with federal
practice. As the U.S. Supreme Court has explained, secrecy is meant to prevent (i) those
being investigated from bribing or threatening grand jurors to get them to vote
against indicting and/or fleeing the jurisdiction to avoid prosecution, (ii) to
protect the innocent whose names come up in a grand jury investigation and
(iii) to encourage witnesses to speak freely before a grand jury.
Like its federal counterpart, Rule 6(e) of the Ohio Rules of
Criminal Procedure says matters occurring before a grand jury “may be
disclosed preliminarily to or in connection with a judicial proceeding, or when
the defendant has shown grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand jury.” As to the basis for ordering such disclosure,
in
U.S. v. Proctor & Gamble Co., 356
U.S. 667 (1958), the U.S. Supreme Court
found a trial court has discretion to release grand jury transcripts when a
defendant demonstrates a particularized need such that the secrecy of the
proceedings should be discretely and limitedly lifted.
In State v. Greer, 66
Ohio St.2d 139, 420 N.E.2d 982 (1981), the Ohio Supreme Court found the
defendant has demonstrated a particularized need when, after a consideration of
all the surrounding circumstances, the court finds it is probable that failure
to disclose the grand jury testimony will deprive the defendant of a fair
adjudication of the allegation placed at issue in the testimony presented at
trial.
Courts have applied the same `particularized need' test for post-verdict requests for grand jury transcripts
as for requests made prior to or during trial.
State v. Bates, supra.
In State v. Greer,
66 Ohio St.2d 139, 420 N.E.2d 982 (1981), the Ohio Supreme Court explained that
Rule 6(e) of the Ohio Rules of Criminal Procedure
require the trial court, upon proper
motion, to consider the basis of the particularized need advanced by the
defendant. This may be accomplished by an in camera inspection of the grand
jury minutes by the trial court assisted by counsel.
State v. Greer, supra.
So the Ohio Supreme Court, like various federal courts,
found that when a defendant seeks access to transcripts of what occurred before
a grand jury, the proper procedure is for the judge to conduct an in camera – a
secret – inspection of the grand jury transcript to see if the defendant has, in
fact, shown particularized need for access to some portions of them. But to trigger this requirement, the
defendant has to come forward with at least a colorable showing of
particularized need, which is not easy to do, given that grand jury proceedings
are secret.
As to the standard to be used in reviewing a trial judge’s
refusal to order in camera review and, perhaps, disclosure, the Court of
Appeals explained that it
is the abuse of discretion
standard. State v. Gondor, 112 Ohio St.3d 377, 860 N.E.2d 77
(Ohio Supreme Court 2006) The Supreme Court has frequently held the term
abuse of discretion indicates the court's attitude is unreasonable, arbitrary,
or unconscionable. . . .
State v. Bates, supra.
As to the evidence at issue in this case, the court notes
that Bates
directs us to the testimony of
Agent Cameron Bryant, Detective John Davis, and Detective Ron Pollock, arguing
portions of the testimony the officers variously gave in the affidavit submitted
in support of the search warrant, at the suppression hearing, and at trial are
internally inconsistent, giving rise to a particularized need to review their
testimony before the grand jury.
State v. Bates, supra.
The Court of Appeals explained that Bates was arguing that
Bryant testified at trial regarding how
images are sent and received through the Internet and how an image is saved on
a computer's hard drive. [Bates] asserts the testimony is not only inconsistent
but also false and misleading. . .
[Bates]
also argues Bryant's testimony was inconsistent regarding the origin of the
images. Bryant testified he believed the images originated from the Internet.
Thereafter, he testified the images came either from a website or from someone
who sent the images with the consent of the user, by which he meant [Bryant].
Bryant testified he could not determine
whether the images were downloaded from a website or received from another
user.
State v. Bates, supra.
After considering Bates’ arguments and the evidence in
question, the appellate court found that “Bryant's testimony is not internally
inconsistent.” State v. Bates, supra.
(It also noted that Bates at least “arguably” could be
precluded from raising this issue in this appeal because he had not raised it
in an earlier in an earlier appeal to the Court of Appeals. State
v. Bates, supra. In that appeal, he
argued that the trial judge erred in denying his motion to suppress “testimony
of the State’s expert in computer forensics”.
State v. Bates, supra.
He lost, and then filed three motions to “correct his
sentence”, all of which were denied. State v. Bates, supra. He then filed a motion to set aside his
conviction, which was denied, and which is the ruling he was appealing in this
case. State v. Bates, supra.)
Bates also argued that
there was a question as to who
testified at the grand jury hearing and what was presented. The computer
forensic report was not completed until after the indictment was issued.
[Bates] argues the indictment states
facts which could only have been retrieved using computer forensic procedures. [He]
argues the question of how the facts were presented before the grand jury must
be answered.
We do not agree. There is no showing
that the information contained in the indictment must have been gleaned by an
expert computer forensic examiner.
State v. Bates, supra.
The court therefore rejected Bates’ attempt to obtain access
to the transcripts of what occurred before the grand jury. State
v. Bates, supra.
No comments:
Post a Comment