Page 30 - Delaware Lawyer - Winter 2021

FEATURE
The Need to Record Grand Jury Proceedings
The U.S. Supreme Court recognized how critical prior witness statements are to a defendant’s right to effectively de- fend against charges. Delaware’s express inclusion of grand jury testimony in the prior statements to which a defendant is entitled specifically recognizes their im- portance to due process, from the time of the consideration of the indictment and throughout subsequent hearings. But what the Justices intended is not real- ized because the grand jury proceedings in Delaware are not recorded; not elec- tronically nor stenographically.23 In fact, the Superior Court rules provide that all grand jury proceedings, except for juror deliberations, may be stenographi- cally or electronically recorded only when approved by the court.24 The rule does not state who can or should ask for the approval to record or when.
Historically, there is a “shroud of secrecy” associated with the grand jury dating back to its origin.25 In accordance with these historical tenets, a defendant may not even be aware that the State is seeking an indictment prior to its occurrence.26 So, in reality, he is unable to seek the approval of the court to have the testimonial portion of the proceed- ings recorded.27
In theory, at the preliminary hearing stage, the defendant and/or his counsel could petition the Superior Court for ap- proval to have the testimony before the grand jury recorded pursuant to Rule 6(e)(1). Additionally, prosecutors could request the recording as part of their duty to preserve evidence under Lolly v. State.28 However, there is a better option. The courts could routinely record the testimony offered to the grand jury so that Rule 26.2 fulfills its purpose. There is no equivalent and substantially reli- able alternative to obtain the testimony other than through a recording, and the burden is minimal as the technology is
already available in the courts.
Part of achieving our goal of justice in Delaware is to examine our system to ensure that it functionally and transpar- ently protects the rights of those it serves, and pursue compliance when it does not. In the future, I will do my part to ensure the protection of my clients’ rights by re- questing the recording of the grand jury meeting when I am aware that my cli- ent stands accused. I invite the Attorney General’s office to do the same and to ad- vocate for the routine practice of record-
ing grand jury testimony statewide. NOTES
1. Anthony McMahon, Inside the Investigation of Breonna Taylor’s Killing and Its Aftermath, ABC NEWS (Nov. 18, 2020), https://www.msn.com/en-us/news/crime/ inside-the-investigation-of-breonna-taylors- killing-and-its-aftermath/ar-BB15zPtI.
2. Matthew Brown and Tessa Duvall, Fact check: Louisville Police had a ‘no-knock’ warrant for Breonna Taylor’s apartment, USA TODAY (June 30, 2020), https:// www.usatoday.com/story/news/ factcheck/2020/06/30/fact-check-police- had-no-knock-warrant-breonna-taylor- apartment/3235029001.
3. Eric Levenson, A Timeline of Breonna Taylor’s Case Since Police Broke Down Her Door and Shot Her, CNN (Sept. 24, 2020), https:// www.cnn.com/2020/09/23/us/breonna- taylor-timeline/index.html.
4. Christina Carrega, FBI opens an investigation into the death of Breonna Taylor, ABC NEWS (May 22, 2020), https://abcnews.go.com/US/ f bi-opens-investigation-death-breonna-taylor/ story?id=70829091.
5. Jorge Fitz-Gibbon, Here’s Everything We Know About the Death of George Floyd, N.Y. POST (May 28, 2020), https://nypost. com/2020/05/28/everything-we-know- about-the-death-of-george-floyd.
6. Oliver Laughland, ‘I Can’t Breathe’: NYPD Fires Officer Who Put Eric Garner in Chokehold, THE GUARDIAN (Aug. 19, 2019), https://www.theguardian.com/ us-news/2019/aug/19/eric-garner-daniel- pantaleo-nypd-officer#:~:text=He%20 added%3A%20%E2%80%9CIt%20is%20 clear,more%20than%20five%20years%20ago.
7. Tessa Duvall, What to Know About
Daniel Cameron, the Attorney General Deciding the Breonna Taylor Case, LOUISVILLE CARRIER JOURNAL (July 15, 2020), https://www.courier- journal.com/story/news/2020/07/15/who- is-kentucky-attorney-general-daniel-cameron- deciding-breonna-taylor-case/5400028002.
8. Zak Cheyney-Rice, It Sure Looks Like Daniel Cameron Lied About Breonna Taylor’s Killing, THE INTELLIGENCER (Oct. 1, 2020), https://
www.msn.com/en-us/news/crime/it-sure- looks-like-daniel-cameron-lied-about-breonna- t a y l o r - s - k i l l i n g /a r - B B 1 9 A H a p .
9. Id.
10. Daniel Villareal. Grand Juror in Breonna Taylor Case Seeks Release of Court Records and Transcript, NEWSWEEK (September 28, 2020), h t t p s : // w w w . m s n . c o m / e n - u s / n e w s / c r i m e / grand-juror-in-breonna-taylor-case-seeks- release-of-court-records-and-transcript/ ar-BB19w26l.
11. Del. Const. art. I § 8. The right to pros- ecution by indictment can be waived in writ- ing or open court, except when a capital of- fense is charged. Del. Supr. Ct. Crim. R. 7(a) (1) and (b).
12. 10 Del. C. § 4507(a).
13. Del. Supr. Ct. Crim. R. 6(d). 14. Id.
15. In Sussex and Kent County, grand juries empanel 10 members, seven of which consti- tutes a quorum, and in New Castle County, nine of the 15 members. 10 Del. C. § 4505.
16. The Sussex and Kent County Prosecutors advised that they prepare the indictments for consideration, arrange for the investigating officer’s testimony and have no further involve- ment in the grand jury process. Information regarding New Castle County indicated that the prosecutors may present to grand juries
or attend their meetings depending on the importance of the case.
17. Del. Supr. Crim. R. 26.2(g) generally provides for the production of “witness” state- ments from grand jury proceedings. According to prosecutors familiar with the process in Delaware, the witnesses at the grand jury are police officers.
18. Del. Supr. Crim. R. 26.2(a)
19. Del. Supr. Crim. R. 26.2(f)(3)
20. 353 U.S. § 657 (1957).
21. Id. at 658.
22. Id. at 672.
23. Staff within the Prothonotary’s office in each county has confirmed that recordings are not made of testimony in grand jury proceedings.
24. Del. Supr. Ct. Crim. R. 6(e)(1).
25. Petition of Jessup, 136 A. 2d 207, 211-12 (Del. Super. Ct. 1957).
26. Id. at 214-15.
27. A defendant does have an opportunity to know that an indictment will be sought for his prosecution if he is arrested on felony charges, and does not waive but elects to have a prelimi- nary hearing in the Court of Common Pleas. At that point, he should understand that the State must indict the charges to begin prosecu- tion on those charges in the Superior Court.
28. 611 A.2d 956 (Del. 1992). The Delaware Supreme Court held that the failure to pre- serve evidence that is material to the guilt or innocence of a defendant is a violation of the federal and state constitutional requirements of due process.
28 DELAWARE LAWYER WINTER 2021