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Grand Jury Indictments and the Rights of Defendants

Your editorial on behalf of defendants (June 2) states that “the Grand Jury’s main argument . . . is based on cost and expediency.” This is not correct. Cost to the taxpayers becomes a factor only once we are assured that the defendants’ rights have not been jeopardized by the California indictment process--a procedure that has endured unchallenged in California, and in all other states except Michigan, for over a century.

It must be emphasized that neither the indictment by a grand jury, nor a similar judgment resulting from a preliminary hearing, is a presumption of guilt--only that the accused should stand trial.

The federal government uses the federal grand juries for essentially all of its criminal cases in lieu of preliminary hearings. We are not defending the federal indictment process, since their requirements in protecting the accused are not nearly as stringent as required in California.

Most of the criticism aimed at grand jury indictments stems from the federal system in which, in addition to other differences, witnesses need not be called to support charges, and hearsay evidence is acceptable.

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On the contrary, in California, our Penal Code requires that the grand jury shall receive none but evidence that would be admissible over objection at the trial of a criminal action.

Often ignored or misunderstood, a California grand jury indictment can be set aside by the court if the defendant has been indicted without reasonable or probable cause (Penal Code, Section 995).

The editorial stated that " . . . some prosecutors used the grand jury indictment procedure . . . to obtain indictments on charges that would not hold up in a preliminary hearing before a judge.”

If this were true, such prosecutors or reviewing judges would be in violation of the law.

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Regarding your editorial’s comment on the need for the grand jury’s “watchdog role,” the state Penal Code (section 904.6) permits impanelment of an additional grand jury.

Thus both civil and criminal functions can be satisfied by separate juries, as has been done in San Francisco County.

To summarize, this grand jury’s primary concern is the protection of the innocent, be they witnesses (such as the 41 children in the McMartin case), informants or defendants falsely accused.

Before the Hawkins decision, such protection was afforded by the California grand jury indictment process.

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THOMAS J. KEHOE,

Foreman

1984-85 Orange County Grand Jury


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