State v. Morgan
| Decision Date | 22 August 1960 |
| Docket Number | No. 6647,6647 |
| Citation | 354 P.2d 1002,1960 NMSC 87,67 N.M. 287 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. James P. MORGAN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Smith, Kiker & Kitts, Albuquerque, for appellant.
Hilton A. Dickson, Jr., Atty. Gen., Thomas O. Olson, First Asst. Atty. Gen., Boston E. Witt, Asst. Atty. Gen., for appellee.
The defendant appeals from a conviction of assault with a deadly weapon.
This case presents the question of whether a defendant, at the trial of a criminal case, is entitled to inspect the grand jury testimony of the state's witnesses.
Defendant Morgan, a police officer in Farmington, was indicted by a grand jury in San Juan County for assaulting the complaining witness with a blackjack or 'slapper' after an arrest for a peace disturbance. At the trial, two of the witnesses for the state, having previously testified before the grand jury, were examined by the district attorney, who used the transcript of their grand jury testimony as a basis for his questions. Counsel for Morgan requested the right to inspect the transcript as to the testimony of these two witnesses, but such request was refused. Subsequently, a similar demand was made as to the testimony of Morgan and another defense witness, after they had been cross-examined as to their grand jury testimony, but again the request was denied. However, during cross-examination of Morgan, all his grand jury testimony was read to the jury. The record is silent as to whether the trial judge inspected the grand jury transcript, and neither was any request made that he do so. It must be conceded that the defendant did not know what the grand jury testimony of the other witnesses was, and that the principal purpose in making the request was the hope of developing impeaching, or at least contradictory, testimony.
Secrecy of grand jury proceedings is deeply ingrained in our law. Public policy shrouds the proceedings in secrecy for the benefit of the grand jury members, the witnesses, and the defendant, and this policy remains until the reasons for the secrecy have either been terminated or outweighed. The reasons for the secrecy are conceded, by practically all authorities, to be fourfold. They are: (1) That the grand jurors themselves be secure in freedom from apprehension that their opinions and votes will not be subsequently disclosed; (2) that complainants and witnesses will be encourage to appear before the grand jury and speak freely without fear that their testimony will be made public, subjecting them to possible discomfort or retaliation; (3) that those persons who are indicted will be prevented from escaping prior to arrest or from tampering with witnesses against them; and (4) to prevent disclosure of derogatory information against persons who have not been indicted. See 8 Wigmore on Evidence, 3d Ed., Sec. 2360; and 24 Am.Jur. 865, Grand Jury, Sec. 47.
There is no question but that during the time the grand jury remains in session, the reasons for secrecy continue. The problem arises as to whether there is a reason for the prolongation of this policy after the grand jury has been discharged and the defendant is actually on trial.
From a practical standpoint, the second of the four reasons for secrecy, above given, is the only one that has any real application to this case. Wigmore, supra, Sec. 2362(b), takes the sound position that the privilege contained in reason No. 2 is the privilege of the witness, and not of the state or the grand juror. This text further states that the secrecy is only temporary or provisional, and that were it more, it would create an opportunity for abuse. In any event, once the witness has testified publicly at the criminal trial, any privilege that he had with respect to his testimony on the same subject before the grand jury is lost. If the witness' testimony is the same in both instances, he cannot be subjected to any more discomfort or retaliation than he would have if he had testified only at the public trial. However, if his testimony varies to any considerable degree, he has forfeited the right to any claim of privilege.
In dealing with the question of the cessation of the privilege, Wigmore, supra, Sec. 2363, states:
'It is now uniformly conceded that a witness may be impeached, in any subsequent trial civil or criminal, by self-contradictory testimony given by him before the grand jury.'
This statement seems a little broad, inasmuch as many courts severely limit the right to the use of grand jury testimony by a defendant. This is on the basis that either the defendant must initially point out the contradiction before being allowed to use the testimony, or that trial court should look over the grand jury testimony to determine, in its discretion, if the same is contradictory to that testified at the trial. This practice has apparently been approved by the United States Supreme Court in several cases, culminating in Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. The decision in this case is to the effect that the defendants had failed to show a particularized need for the disclosure of the grand jury minutes, and had merely contended that they had a right to the transcript because it dealt with the general subject matter of the trial. In this case, there is a very convincing dissent by Mr. Justice Brennan, concurred in by three other justices, in which it is pointed out that the reason for secrecy no longer exists and that the sole purpose of the trial is to determine the truth; that therefore the defendants should have been allowed the testimony to make their own determination as to whether or not there was impeaching or contradictory testimony given before the grand jury.
It is most difficult to understand how a defendant, who has never had access to testimony before a grand jury, can show a particularized need for such testimony, for it can only be after seeing the same that it can be determined whether there is a conflict. If the defendant has a right at all to see the grand jury testimony of a witness who is in the process of testimonying at the trial, he should certainly have the right to make his own determination whether the prior testimony was conflicting or impeachable. This, of course, should be limited to the witness' testimony as to the specific offense, and should not be construed as granting to the defendant the right to examine all the grand jury testimony, and it is for this reason that the inspection of the trial judge may become necessary.
It would appear that the rule adopted by the New York courts is a sound one. The practice appears to be that if the district attorney uses the grand jury testimony during the trial, the defendant will be granted inspection. People v. Miller, 1931, 257 N.Y. 54, 177 N.E. 306; People v. Dales, 195...
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State v. Thompson
...may do when clearly confronted with the problem. It would appear that in two states the Jencks rule will be followed. State v. Morgan, 67 N.Mex. 287, 354 P.2d 1002; Chandler v. State, 230 Or. 452, 370 P.2d 626. Two states may have implicitly adopted the discretionary rule. Russom v. State (......
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