In re Opinion of the Justices

• Decision Date: 02 April 1919
• Citation: 232 Mass. 601,123 N.E. 100
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 601

123 N.E. 100

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 2, 1919.

Opinion of the Justices as to the constitutionality of Senate Bill No. 102.

Senate, April 2, 1919.

Whereas, there is pending before the General Court a bill numbered Senate 102, a copy of which is hereunto annexed, providing that the grand jury may, upon request of the district attorney, permit to be present at an examination of witnesses in a case which it is investigating, a police officer or other person who has prepared the case, and also an interpreter for a witness unfamiliar with the English language; and

Whereas, grave doubt exists as to the constitutionality of said bill, in view of the decision of the Supreme Judicial Court in the case of Commonwealth v. Harris, reported in 231 Mass. 584, 121 N. E. 409:

Therefore, be it--

Ordered, that the Senate require the opinions of the honorable the Justices of the Supreme Judicial Court on the following important questions of law:

(1) Would the bill above described be constitutional if enacted into law?

(2) Is it within the constitutional power of the General Court to enact a statute authorizing the grand jury, upon request of the district attorney or otherwise, to permit to be present during its examination of witnesses a police officer or other person who has been engaged on the preparation of the case, or an interpreter to assist in the examination of witnesses who cannot speak English, or whose knowledge of English is so deficient as to render necessary the use of an interpreter?

Henry D. Coolidge, Clerk.

To the Honorable the Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of April 2, 1919, a copy of which is hereto annexed, and respectfully submit this opinion:

[2] The first inquiry in substance and effect is whether under the Constitution, the grand jury, upon request of the district attorney or otherwise, may permit to be present at the examination of witnesses in a case a police officer who has prepared such case.

The Constitution by article 12 of the Declaration of Rights secures to every person protection against accusation and trial for crimes of great magnitude without an indictment by the grand jury. That protection is afforded by the phrase ‘the law of the land’ in the provision that no person shall be ‘arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty or estate but by the judgment of his peers or the law of the land.’ ‘The law of the land’ implies an indictment or presentment by the grand jury in instances to which that proceeding is necessary. The grand jury is an ancient institution. It always has been venerated and highly prized in this country. It has been regarded as the shield of innocence against the plottings of private malice, as the defense of the weak against the oppression of political power, and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source. These blessings accrue from the grand jury because its proceedings are secret and uninfluenced by the presence of those not officially and necessarily connected with it. It has been the practice for more than two hundred years for its investigations to be in private, except that the district attorney and his assistant are present. Secrecy is a vital requisite of grand jury procedure. It was said in the recent decision of Commonwealth v. Harris, 231 Mass. 584, at page 586, 121 N. E. 409, at page 410, quoting in part the words of Chief Justice Shaw in Jones v. Robbins, 8 Gray, 329, 344:

“The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and...