[ OUR OPINION ]
CITIZEN involvement in grand juries has been glorified beyond what actually happens behind closed doors. Despite the scrutiny ideally exercised by grand juries, prosecutors generally are able to determine the panel's decision. Hawaii voters should ratify a constitutional amendment that would allow prosecutors to conform to practices in most other states by bringing documentation of felony cases before a judge instead of presenting live testimony to a grand jury. Grand juries cause
needless cost, hassle
THE ISSUE A constitutional amendment on the Nov. 5 ballot would allow county prosecutors to take cases before judges instead of grand juries.
County prosecutors in Hawaii now have the option of presenting testimony to a grand jury or to a judge in a preliminary hearing in open court, where the defense has the right to confront witnesses. Prosecutors usually opt for a grand jury, despite a requirement that police and witnesses testify; hearsay is forbidden in a grand jury unless a witness is unavailable. Hawaii is among only eight states that require prosecutors to choose between preliminary hearings and grand jury proceedings in which hearsay is not allowed.
For example, prosecutors are not permitted to inform a panel about police findings, statements to police by witnesses or results of forensic examinations conducted by experts. Grand jurors must hear directly from the victims, witnesses and experts, who will be called upon later to undergo questioning at trial. City Prosecutor Peter Carlisle says the hearsay ban creates inconvenience for witnesses and police officers waiting in courtroom hallways for their turn to testify.
Carlisle estimates that 10,000 victims and witnesses a year are called upon to testify before grand juries. He has estimated that his office could save $500,000 a year if it were allowed instead to submit papers to a judge to establish probable cause that a suspect committed a crime.
Some defense attorneys contend that allowing prosecutors to take their cases before judges would jeopardize their clients' right to due process and the requirement that prosecutors establish probable cause. However, defense attorneys could challenge the judge's finding of probable cause just as they can file motions to dismiss grand jury indictments. Submission of documents -- called an "information" -- that include statements from witnesses and police instead of the convening of a grand jury would not deprive a defendant of due process.
The constitutional amendment, if ratified, would not entirely eliminate grand juries. Carlisle says prosecutors are likely to use grand juries to consider highly controversial cases. That undoubtedly would include investigations of alleged wrongdoing by public officials. Grand juries may be preferable in attaching the aura of citizen involvement in determining the merit of such cases. A judge is perfectly capable of determining whether other cases should proceed to trial.
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