State ex rel. Johnson v. Roth

• Court: Supreme Court of Oregon
• Writing for the Court: HOWELL
• Citation: 276 Or. 883,557 P.2d 230
• Parties: STATE of Oregon ex rel. Lee JOHNSON, Attorney General, Plaintiff, v. Phillip J. ROTH, Judge of the Circuit Court of the State of Oregon for County of Multnomah, Defendant.
• Decision Date: 09 December 1976

Page 230

557 P.2d 230 276 Or. 883 STATE of Oregon ex rel. Lee JOHNSON, Attorney General, Plaintiff,
v.
Phillip J. ROTH, Judge of the Circuit Court of the State of
Oregon for County of Multnomah, Defendant. Supreme Court of Oregon, In Banc. Argued and Submitted Sept. 7, 1976.
Decided Dec. 9, 1976.

Page 231

Catherine Allan, Asst. Atty. Gen., [276 Or. 884] Salem, argued the cause for plaintiff. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Solicitor Gen., Salem.

Diane Spies, of Connall & Spies, P.C., Portland, argued the cause for defendant.

[276 Or. 885] HOWELL, Justice.

This is an original proceeding in mandamus brought by the Attorney General to require the defendant, a circuit judge in Multnomah County, to vacate an order requiring recordation of all grand jury testimony in a criminal case then pending, as well as the recordation of all testimony in all future criminal cases brought before the grand jury. ¹ We issued an alternative writ. The defendant judge filed a demurrer and answer contending, inter alia, that his order requiring the recordation of grand jury testimony was a discretionary matter and that it was within the inherent power of the court to issue such an order.

Historically, the courts have always recognized that there is a 'long-established policy that maintains the secrecy of the grand jury proceedings.' United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). When disclosure is permitted, it is to be done 'discretely and limitedly.' Id. 356 U.S. at 683, 78 S.Ct. 983. ² [276 Or. 886] See also Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). ³

Similarly, our statutes also seek to preserve the secrecy of grand jury proceedings and allow disclosure only in limited cases. Under ORS 132.060 grand jurors are required to 'keep secret the proceedings before you.' A grand juror cannot be questioned about his vote or anything he says during the proceedings.

Page 232

ORS 132.210. However, disclosure of the testimony of witnesses called before the grand jury may be permitted in three instances: (1) when the testimony of a witness at a criminal trial may be inconsistent with his testimony before the grand jury, ORS 132.220(1); (2) when a witness is charged with perjury, ORS 132.220(2); and (3) when permitted by the court in furtherance of justice, Gowin v. Heider, 237 Or. 266, 286, 386 P.2d 1, 391 P.2d 630 (1964). ⁴ See also State v. [276 Or. 887] Superior Court of Maricopa Co., 95 Ariz. 319, 390 P.2d 109 (1964); State v. Tacket, 78 N.M. 450, 432 P.2d 415 (1967). Except for the situations outlined above, this court has stated that 'the state is not * * * required to disclose what the witnesses said before the grand jury.' State v. Guse, 237 Or. 479, 481, 392 P.2d 257, 258 (1964).

In our view, it is significant that ORS 132.220(1) and (2) provides for disclosure only by calling a member of the grand jury to testify. The situation in Gowin v. Heider, supra, also involved the calling of a grand juror. There is no provision in these statutes or in any of our previous decisions for the wholesale recordation of grand jury proceedings.

The only statute in this jurisdiction which even discusses the recordation of grand jury testimony is ORS 132.090, which provides that

'* * * upon a motion filed by the district attorney in the circuit court, the circuit judge may appoint a reporter who shall attend the sittings of such grand jury and take and report the testimony in any matters...