A new state law that requires grand jury proceedings to be recorded will likely alter how the Clatsop County District Attorney’s Office seeks many felony indictments.
The law will take effect in Clatsop County in July after it was signed into law by Gov. Kate Brown last year. While prosecutors typically seek secretive grand jury indictments in felony cases, many have said preliminary hearings, which are open to the public, will become more common.
“It’s a pretty big change in the statute,” Clatsop County District Attorney Josh Marquis said.
During grand jury hearings, a prosecutor calls witnesses to testify in front of seven jurors. They testify under oath, but a defense attorney is not present and witnesses are not subject to cross-examination. If five of the jurors find probable cause — a 50 percent or greater chance that the alleged crimes occurred — the case moves forward with an indictment.
Preliminary hearings, on the other hand, involve defense attorneys in the process. Instead of a jury, a judge rules on probable cause.
These hearings are useful for prosecutors when they believe a witness may change their statements or otherwise not be available later in the case, Deputy District Attorney Ron Brown said. Otherwise, they largely benefit defense attorneys, who have the ability to cross-examine witnesses.
During grand jury proceedings, one juror is designated to keep handwritten notes. When the new state law takes effect, prosecutors will need to either train a juror to record the proceeding using audio equipment or hire a certified shorthand reporter.
In more than 30 years as a prosecutor, Marquis recalls just a handful of times he’s pursued a preliminary hearing rather than a grand jury in felony cases. Now, both the district attorney and Brown, who will succeed Marquis in January, expect that preliminary hearings will be requested more regularly.
“It’s a bad idea, but it’s the law now.” Marquis said.
Other states do it
The requirements seek to address a perceived lack of transparency in the judicial system, especially with grand juries. Every other state in the country, with the exception of Louisiana, requires grand juries to be recorded. Civil rights groups have expressed support for the law.
“This is doable. It’s done in a lot of places,” said Kirk Wintermute, an Astoria criminal defense attorney. “There are a lot of issues with the justice system, and this is one of them.”
The recordings will also give defense attorneys more ammunition when cross-examining the same witnesses later in cases.
“People often make very different statements in grand jury than they do in trial,” Wintermute said. “Getting that extra statement under oath is really important.”
Prosecutors, however, have raised alarms. Law enforcement groups have joined them, as well as state Sen. Betsy Johnson, D-Scappoose, and state Rep. Deborah Boone, D-Cannon Beach.
Victims may be less willing to make recorded allegations without a guarantee of charges being filed, especially in sex abuse cases where victims are more reluctant to come forward against people they typically know well.
Adding to the complexity is the cost of implementing the system. Three counties — Multnomah, Deschutes and Jackson — have had the law in place since March as part of a pilot program.
The counties recently requested $924,837 from the state to help offset the costs of reviewing transcripts, drafting protective orders to limit who can access the recordings and managing equipment, among other things.
“What we’re really doing is, literally, creating another courtroom. I think it’s kind of absurd to say you have to operate this as if you were making $30,000, $40,000 a year,” Marquis said of having to train volunteer jurors to use the equipment.
Instead, the district attorney’s office will likely opt for preliminary hearings in about half of felony cases, Brown said. The incoming district attorney will likely still pursue grand jury indictments in sensitive cases such as sex abuse.
Due to the inclusion of defense attorneys in the process, the hearings could lengthen the proceedings and create scheduling conflicts in an already heavy caseload for the county.
“Any kind of workload that is going to affect the caseload is a concern,” said Phillip Lemman, spokesman for the state Judicial Department. “If the district attorneys are going to create preliminary hearings, we need to be prepared to respond to those things.”
The three counties that have been part of the pilot program have used preliminary hearings to varying degrees so far, and will offer reports about their progress over the next few months. Counties not currently subject to the law, like Clatsop, will be watching.
“It really hasn’t been used widely enough to know if to know if there are any efficiencies or qualitative differences,” Lemman said. “We’re kind of in a state of flux.”