Hawkins v. Superior Court

Decision Date09 November 1978
Docket NumberS.F. 23682
Citation22 Cal.3d 584,150 Cal.Rptr. 435,586 P.2d 916
CourtCalifornia Supreme Court
Parties, 586 P.2d 916 James HAWKINS et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest.

M. Gerald Schwartzbach, San Francisco, for petitioners.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, and Ezra Hendon, Deputy State Public Defender, amici curiae for petitioners.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., and Clifford K. Thompson, Jr., Deputy Atty. Gen., for real party in interest.

MOSK, Justice.

In this proceeding we consider the constitutionality of present California procedures for prosecution by grand jury indictment. Defendants were charged, in a multiple-count indictment returned by the San Francisco Grand Jury, with conspiracy (Pen.Code, § 182, subd. 4) and grand theft (Pen.Code, § 487, subd. 1); in addition, some of the defendants were individually charged with other offenses.

Defendants were arraigned, and each pleaded not guilty to all counts. Their motion for a dismissal or in the alternative for a postindictment preliminary hearing was in due course denied. Defendants seek a writ of mandate, asserting a right under the due process and equal protection clauses of the federal and state Constitutions to an adversarial preliminary hearing. We find it unnecessary to address the serious due process issue posed because we conclude that an accused is denied the equal protection of the laws guaranteed by article I, section 7, of the California Constitution when prosecution is by indictment and he is deprived of a preliminary hearing and the concomitant rights which attach when prosecution is by information.


It is undeniable that there is a considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of an information and defendants charged by the grand jury in an indictment. 1 The defendant accused by information "immediately becomes entitled to an impressive array of procedural rights, including a preliminary hearing before a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and affirmatively present exculpatory evidence. (Pen.Code, § 858 et seq.; Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 . . . .)" (Johnson v. Superior Court (1975) 15 Cal.3d 248, 256, 124 Cal.Rptr. 32, 37, 539 P.2d 792, 799 (conc. opn. by Mosk, J.).)

In vivid contrast, the indictment procedure omits All the above safeguards: the defendant has no right to appear or be represented by counsel, and consequently may not confront and cross-examine the witnesses against him, object to evidence introduced by the prosecutor, make legal arguments, or present evidence to explain or contradict the charge. Penal Code section 939.7 captures the spirit of the proceeding by declaring as a matter of law, "The grand jury is not required to hear evidence for the defendant . . . ." If he is called to testify, the defendant has no right to the presence of counsel, even though, because of the absolute secrecy surrounding grand jury proceedings, he may be completely unaware of the subject of inquiry or his position as a target witness. 2 This remarkable lack of even the most basic rights is compounded by the absence from the grand jury room of a neutral and detached magistrate, trained in the law, to rule on the admissibility of evidence and insure that the grand jury exercises its indicting function with proper regard for the independence and objectivity so necessary if it is to fulfill its purported role of protecting innocent citizens from unfounded accusations, even as it proceeds against those who it has probable cause to believe have committed offenses.

The Attorney General recognizes, as he must, that vastly different procedures attend these alternative modes of prosecution, but maintains that such differences are "more apparent than real." This startling claim is premised on the availability to the accused of judicial review of the grand jury's probable cause determination. (Pen.Code, §§ 995, 999a.) The defendant in either case, it is urged, is entitled to a judicial determination that the evidence is sufficient to require trial. 3

The foregoing argument depends on two erroneous assumptions. It assumes first that the only benefit derived by a defendant from an adversarial preliminary hearing lies in obtaining a judicial determination of probable cause. Yet whatever may be the Legislature's intent in establishing such a hearing, it serves a number of pragmatic functions for the accused. The United States Supreme Court catalogued some of them in Coleman v. Alabama (1970) 399 U.S. 1, 9-10, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387, holding the Alabama preliminary hearing at issue therein to be "a 'critical stage' of the State's criminal process" at which the defendant had a right to "the guiding hand of counsel." 4 The court observed that a "skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial." It went on to recognize the important discovery function served by an adversarial preliminary hearing; such a hearing will assuredly provide the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial. The court also noted a less obvious advantage to the defendant accorded a preliminary hearing: his counsel may immediately argue before a judge on such matters as the necessity for an early psychiatric examination or setting bail.

These benefits to the defense which inhere in an adversarial preliminary hearing are either completely denied to a defendant charged in a secret, nonadversarial grand jury proceeding, or ultimately realized by such a defendant only to a limited extent. It cannot be seriously argued that an indicted defendant enjoys a comparable opportunity to discover the state's case and develop evidence because he later obtains a transcript of grand jury proceedings. (Pen.Code, §§ 938.1, 995a.) Such a transcript will invariably reflect only what the prosecuting attorney permits it to reflect; it is certainly no substitute for the possibility of developing further evidence through a probing cross-examination of prosecution witnesses a possibility foreclosed with the denial of an adversarial proceeding. There is no other effective means for the defense to compel the cooperation of a hostile witness (see People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 143 Cal.Rptr. 609, 574 P.2d 425); in the unlikely event that all the prosecution witnesses agree to submit to defense interviews, the defense still must incur unnecessary expense and hardship which may be substantial.

The Attorney General further assumes, in asserting that the differences between indictment and information procedures are "more apparent than real," that the likelihood of a probable cause finding is substantially the same whether the screening function is performed by the grand jury with subsequent judicial review or by a magistrate at a preliminary hearing. This assumption reflects the idealistic concept that the grand jury is an independent body of citizens, standing as a buffer between the state and the individual and protecting the innocent from unfounded accusations of crime. Unfortunately, grand jury proceedings today are structured in a manner that renders fulfillment of the ideal unattainable.

The prosecuting attorney is typically in complete control of the total process in the grand jury room: he calls the witnesses, interprets the evidence, states and applies the law, and advises the grand jury on whether a crime has been committed. (See Judicial Council of Cal., Annual Rep. (1974) p. 58; Kranitz, The Grand Jury: Past Present No Future (1959) 24 Mo.L.Rev. 318, 328; Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 U.Ill.L.F. 423, 431.) The grand jury is independent only in the sense that it is not formally attached to the prosecutor's office; though legally free to vote as they please, grand jurors virtually always assent to the recommendations of the prosecuting attorney, a fact borne out by available statistical and survey data. (See Morse, A Survey of the Grand Jury System (1931) 10 Ore.L.Rev. 101, 153-154, 304, 325-326; Note, Some Aspects of the California Grand Jury System (1956) 8 Stan.L.Rev. 631, 653-654; Note, Evaluating the Grand Jury's Role in a Dual System of Prosecution: An Iowa Case Study (1972) 57 Iowa L.Rev. 1354, 1369.) Indeed, the fiction of grand jury independence is perhaps best demonstrated by the following fact to which the parties herein have stipulated: between January 1, 1974, and June 30, 1977, 235 cases were presented to the San Francisco grand jury and indictments were returned in all 235.

The pervasive prosecutorial influence reflected in such statistics has led an impressive array of commentators to endorse the sentiment expressed by United States District Judge William J. Campbell, a former prosecutor: "Today, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury." (Campbell, Eliminate the Grand Jury (1973) 64 J.Crim.L.&C 174.) Another distinguished federal jurist, Judge Marvin E. Frankel, put it this way: "The contemporary grand jury investigates only those whom the prosecutor asks to be investigated, and by and large indicts those whom the...

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