McMahon v. Office of City and County of Honolulu, 4948

• Decision Date: 25 February 1970
• Docket Number: No. 4948,4948
• Citation: 51 Haw. 589,465 P.2d 549
• Parties: Brian M. McMAHON v. The OFFICE OF the CITY AND COUNTY OF HONOLULU, Prosecuting Attorney, Barry Chung as Chief Prosecuting Attorney Therein, and Michael Weight, as Deputy Prosecuting Attorney.
• Court: Hawaii Supreme Court

Page 549

465 P.2d 549

51 Haw. 589

Brian M. McMAHON v. The OFFICE OF the CITY AND COUNTY OF HONOLULU, Prosecuting

Attorney, Barry Chung as Chief Prosecuting

Attorney Therein, and Michael Weight, as

Deputy Prosecuting Attorney.

No. 4948.

Supreme Court of Hawai'i.

Feb. 25, 1970.

Syllabus by the Court

1. Hawaii Supreme Court does not have original jurisdiction to hear petition for writ of prohibition directed to prosecutors.

2. All evidence presented to the grand jury must be recorded.

David C. Schutter, Honolulu, for petitioner.

Michael Weight, Deputy Pros. Atty., and Barry Chung, Pros. Atty., Honolulu, for respondents.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

PER CURIAM.

Defendant McMahon petitions this court for: (1) an order compelling the presence

of a court reporter at any grand jury session which might indict him, and (2) an order preventing the prosecution from presenting to the grand jury evidence which the District Court has already ruled was unconstitutionally seized.

JURISDICTION

We are faced with serious jurisdictional difficulty. Our state constitution provides that '(t)he several courts shall have original and appellate jurisdiction as provided by law.' Haw.Const. art. V, § 1; see also art. III, § 4, art. V, § 6. In this respect it is quite unlike the United States Constitution art. III, § 2. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174, 2 L.Ed. 60 (1803).

By HRS § 602-5, original jurisdiction in this court exists 'in all questions arising under * * * mandamus, prohibition, and injunction directed to circuit courts, or to circuit judges, or to magistrates, or other judicial tribunals and returnable before the supreme court.' This action is not, however, directed to a judicial tribunal, rather it is directed to prosecutors. Original jurisdiction of such a writ lies not here, but in the circuit court. HRS §§ 637-1, 603-22(1) and (8), In re Pringle, 22 Haw. 589 (1915). Therefore this court has appellate, but not original jurisdiction over this case. McMahon's petition here is original, not appellate. A petition seeking the same relief was heard (and denied) by the First Circuit Court.

Though this court denies McMahon's other request for lack of jurisdiction this court will consider the substance of the request for recording of the grand jury proceedings under our constitutional rule making power ¹ and our statutory power of general superintendence of courts of inferior jurisdiction. ²

McMahon wants to be sure that if he is indicted there will be a grand jury recording in existence so that if he is entitled to a transcript, he will be able to get it. It is unnecessary to determine now precisely what circumstances give rise to a right in defendants to have a copy of a grand jury transcript. Even under a most restrictive view, it is clear that a defendant is under some circumstances constitutionally entitled to some part of the grand jury transcript. ³

When and if a grand jury indicts McMahon, it will be appropriate for a court to examine his right to have a copy of the grand jury transcript.

We have no difficulty in requiring that presentations of evidence to grand juries in this state shall be recorded. Otherwise there would be no remedy to make effective a constitutional right which may clearly exist.

It cannot seriously be argued that this will invade the proper secrecy of grand jury proceedings.

'Historically, from early time, a distinction was made between the deliberations of the grand jury on the one hand and the reception of evidence by them on the other hand. The first, including their discussions and votes, was always required to be secret. The last, while generally secret, was sometimes public, as well as secret. In early times, when the testimony was heard in public, it was heard in open court, and was as ascertainable by the accused as by the prosecution. When received in secret, it was as hidden from the one as the other. Gradually, and mainly that the grand jury should not be coerced by governmental influences, when such influences were conceived to be inimical to the liberties of the people, testimony was received by them in private. It was received without the presence in the grand jury room of the prosecutor for the crown, and later in this country generally without the presence of the district attorney. The first innovation was that which permitted the district attorney to be present at the taking of testimony; the next, the communication to the district attorney of the substance of the testimony, in order that therefrom he might draw the form of indictment desired by the grand jury. In 1885 provision was made for the taking of the testimony before the grand jury by a stenographer appointed in the county of New York by the district attorney, and this stenographer was required to furnish to the district attorney a copy of the minutes. This legislation resulted in more fully arming the district attorney at the threshold of the prosecution for its successful maintenance.' People v. Klaw, 53 Misc. 158, 104 N.Y.S. 482 at 484-485 (1907).

See generally Calkins, Grand Jury Secrecy, 63 Mich.L.Rev. 455, 456-465 (1965); Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va.L.Rev. 668 (1962); Disclosure of Grand Jury Minutes to Challenge Indictments and Impeach Witnesses in Federal Criminal Cases, 111 U.Pa.L.Rev. 1154 (1963); 81 Harv.L.Rev. 712 (1968); 43 N.Y.U.L.Rev. 194 (1968).

Therefore we should amend H.R.Cr.P. Rule 6(d), which now provides:

'Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, an official circuit court reporter may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.' (Emphasis added)

Rule 6(d) is hereby amended to provide:

'Attorneys for the government, the witness under examination, and interpreters when needed, may be present while the grand jury is in session. An official court reporter shall be present and shall fully record all evidence presented to the grand jury. No person other than the jurors may be present while the grand jury is deliberating or voting.'

It is so ordered.

1 Hawaii Const. art. V, § 6:

'The supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practices, procedure and appeals, which shall have the force and effect of law.'

2 HRS § 602-4:

'The supreme court shall have the general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses therein where no other remedy is expressly provided by law.'

See Territory v. Hayes, 42 Haw. 1 (1957); In Re Edward J. Carvelo, 44 Haw. 31, 352 P.2d 616 (1959).

3 Compare Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) with United States v. Burr, 25 Fed.Cas.No.14,694, p. 187 at 190-192 (1807, Marshall, C. J. sitting on circuit). See United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967); Loux v. United States, 389 F.2d 911 (9th Cir. 1968).

Several state courts have granted disclosure to facilitate pretrial preparation. State v. Moffa, 64 N.J.Super. 69, 165 A.2d 219 (1960); State v. Faux, 9 Utah 2d 350, 345 P.2d 186 (1959); see also People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200 (1927, Cardozo, C. J.).

Several state legislatures have gone considerably further. See Cal.Pen.Code, § 938.1 (1968 Cum.Supp.); Iowa Code § 772.4 (1966); Russell's Kentucky Practice, Rules of Criminal Procedure Rule 5.16(2) (1969 ed.); Minn.Stat.Ann. § 628.41 et seq. (1947). Cal.Pen.Code, § 938.1 provides in pertinent part:

'If an indictment has been found or accusation presented against a defendant, such stenographic reporter shall certify and file with the county clerk an...