People v. French

• Decision Date: 04 August 1965
• Docket Number: No. 65-28,65-28
• Parties: PEOPLE of the State of Illinois, Plaintiff v. Louis FRENCH, Defendant. PEOPLE of the State of Illinois, Appellee v. William V. HOPF, Appellant.
• Court: United States Appellate Court of Illinois

Page 505

209 N.E.2d 505

61 Ill.App.2d 439

PEOPLE of the State of Illinois, Plaintiff v. Louis FRENCH, Defendant.

PEOPLE of the State of Illinois, Appellee v. William V. HOPF, Appellant.

No. 65-28.

Appellate Court of Illinois, Second District.

Aug. 4, 1965.

Edgar J., Elliott, Asst. State's Atty., Wheaton, for respondent-appellant.

Corrigan & Mackay, John R. Mackay, Sp. State's Atty., Wheaton, for the People.

DAVIS, Justice.

This is an appeal from an order of the Circuit Court of DuPage County, finding William V. Hopf, the State's Attorney for the county, in contempt of court for his wilful refusal to comply with an order of the court to produce, for the defendant, the grand jury transcript of the testimony of police sergeant, Harold Walthers, one of the witnesses. The State's Attoney was fined $50.00.

The contempt order arose in the case of The People v. Louis French. The grand jury returned an indictment for armed robbery against French. Prior to trial, the defendant moved for the production of the testimony of Walthers. He asserted in his motion that Walthers' testimony before the grand jury was vital to his case and necessary for the proper preparation of its defense.

The trial court granted defendant's motion and ordered that Walthers' testimony be presented to the defendant. The State's Attorney advised the court that a transcript of the testimony had been prepared; asserted that if the State, at the trial of the cause, called Walthers as a witness he would then deliver the transcript to the court for examination; suggested that, if the court found anything of an impeaching nature therein, it could then be delivered to the defendant's attorney--for impeachment purposes; stated that he felt the order was premature, and refused to comply with it. The trial court then found the State's Attorney guilty of contempt. Thus, the issue before this court is whether a defendant may obtain a transcript of the testimony of a witness before the grand jury for preparation for the trial.

At the outset, it must be appreciated that the veil of secrecy surrounding grand jury proceedings is fundamental to our criminal procedure. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, 1326 (1959); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546, 1555 (1943); Goodman v. United States, 108 F.2d 516, 519, 127 A.L.R. 265 (9th Cir. 1939); United States v. Smyth, 104 F.Supp. 283, 301-302, 304 (N.D.Cal.1952); Gitchell v. People, 146 Ill. 175, 183, 33 N.E. 757 (1893); (Ill.Rev.Stat.1963, Chap. 38, par. 112-6.) Secrecy serves to insure the most efficient performance of the grand jury in its functions as both an accusatory and inquisitorial body in that it helps:

(1) to prevent the escape of those indicted;

(2) to insure the grand jury freedom

(3) to forestall subornation of perjury

(3) to forestall subornation of perjury with witnesses who may testify before the grand jury and later at trial of those indicted by it;

(4) to encourage free and untrammeled disclosures by persons who have some information with respect to the commission of crimes; and

(5) to protect the innocent person, who is accused but exonerated, against unwarranted exposure.

In re Bullock, 103 F.Supp. 639, 642 (D.D.C., 1952); 8 Wigmore on Evidence, 3rd ed. Secs. 2360, 2361, pp. 728-736 incl.

Some of the reasons for secrecy are removed after indictment. Others, obviously, are not. Further, the purpose of secrecy is designed to assure freedom of deliberation of future grand juries, and the participation of future witnesses, as well as to provide these assurances to those who appeared before the instant proceeding. United States v. American Medical Ass'n et al., 26 F.Supp. 429, 430 (D.D.C., 1939). As was stated by Judge Leahy in United States v. General Motors Corporation, 15 F.R.D. 486 (D.Del., 1954) at page 488:

'Revelation of the jury minutes may, or may not, have an adverse effect on the particular jurors and witnesses participating in the proceedings whose record is sought, but this alone is not the prime concern. The effect on subsequent proceedings, on jurors, on witnesses, on the privacy of the system itself, is of greater moment.'

That the secrecy surrounding the grand jury, is in part designed to obtain testimony otherwise perhaps unavailable, was recently reaffirmed by the Supreme Court in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323, 1327 (1959), where the court stated: 'Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each witness knew that his testimony would soon be in the hands of the accused.' It is of no great import that a particular witness may be willing to testify at the trial as well as before the grand jury, or that he has no fear of disclosure of his testimony before the grand jury. It is of consequence that, where necessary, one who has such fear may be assured his testimony is not subject to public disclosure.

Most certainly the veil of secrecy is not impenetrable. It is not an end in itself, but a means to further justice by permitting the grand jury to function most effectively. Where the ends of justice require it, the testimony of a grand jury witness may be disclosed. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129, 1174 (1940); People v. Johnson, 31 Ill.2d 602, 606, 203 N.E.2d 399 (1964).

The Johnson case is enlightening in resolving the question of when the transcript of a grand jury witness' testimony may be delivered to the defendant. There, the prosecutrix, who had testified before the grand jury, also testified at the first trial. On appeal, the Supreme Court reversed the conviction of the defendant. On the second trial the defendant requested a copy of the testimony given by the prosecutrix before the grand jury. The trial court denied the request, and the Supreme Court on appeal of the second conviction reversed the trial court, and held that the defendant was entitled to the grand jury testimony of the prosecutrix.

The court noted that in this case, none of the reasons underlying the rule for secrecy longer existed: that after a person is indicted and the case proceeds to trial, there is no danger of escape; that the risk of damage to the reputation of one investigated, but not indicted, is not applicable; that it is not likely that there will be subornation of perjury if the witness has already testified against the defendant; that disclosure is not a hindrance to future grand jury deliberations, as such deliberations are not revealed; and that there is no deterrent to the participation of future witnesses before future grand juries where the disclosure of knowledge is made by the witness himself on the stand. (31 Ill.2d at 606, 203 N.E.2d 399.) The court observed that the rationale of the cases, People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197 (1960) and People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1 (1957) was fully applicable to the grand jury testimony sought, if the basic reasons underlying the rule for secrecy were no longer present.

In Moses, the court held that it was error to refuse to turn over to defendant's counsel certain police inter-departmental records containing reports relating to statements made by certain witnesses at the trial. At page 89, 142 N.E.2d 1, the court noted that no ground of privilege was apparent; that an accused person is entitled to the production of a document that contradicts the testimony of a prosecution witness; and that the State should have no interest in opposing the disclosure of facts, unless interested in convicting persons on the testimony of untrustworthy witnesses.

In Wolff, the court observed that it was error to deny defendant access to written statements made by prosecution witnesses prior to trial. On page 323 of 19 Ill.2d, on page 199 of 167 N.E.2d, referring to the Moses case, the court said, 'All authorities examined agree that use of documents produced under the rule is restricted to impeachment * * *.'

The Supreme Court in Johnson, in adopting the rationale of Moses and Wolff, accepted as applicable to grand jury testimony the right of a defendant to access to statements of a witness, who had testified at...