People v. Superior Court

In these original proceedings, we consider a significant issue of criminal procedure: to what extent may an indicted defendant obtain discovery of nontestimonial grand jury proceedings for the purpose of preparing a Penal Code section 995 motion to dismiss the indictment on grounds of lack of probable cause? 1 Our Supreme Court has recognized that the grand jury’s ability to consider the evidence impartially and independently in order to determine whether there is probable cause to indict may be prejudiced by the manner in which the prosecutor conducts the grand jury proceedings, including advice, instructions and argument. (People v. Backus (1979) 23 Cal.3d 360, 393 [ 152 Cal.Rptr. 710 , 590 P.2d 837 ]; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1022, fn. 1 [ 13 Cal.Rptr.2d 551 , 839 P.2d 1059 ].) In light of this recognition by the Supreme Court, it follows that a defendant may review these communications between the prosecutor and the grand jury in order to prepare a motion to set aside an indictment on grounds of lack of probable cause under section 995.

Here respondent court ordered the People to produce, among other things, transcripts of all communications…

While I am in substantial agreement with my colleagues’ well-written majority opinion in most respects, I write separately to express my belief that defendants’ rights to discovery of transcripts of the nontestimonial portions of the grand jury proceedings arise from the California Constitution’s guarantee of due process.

Defendants assert that “due process” requires that grand jury proceedings be fair, and the People do not challenge this assertion. Defendants reason from this premise that their due process rights to fair grand jury proceedings cannot be vindicated if they are precluded from discovering the nature of those proceedings. The People respond that a transcript of only the testimonial portions of the proceedings is sufficient to satisfy due process. My *442 colleagues conclude that defendants are entitled to discover transcripts of the nontestimonial portions of the grand jury proceedings. However, my colleagues avoid premising this discovery right on the California Constitution. This is the point at which my view diverges from that of my colleagues.

My colleagues state that “[n]o California Supreme Court case has squarely held that grand jury indictment procedures…