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PG I(J) INSTRUCTIONS TO GRAND JURY
PG I(J)(1) The Law Of Grand Juries And Indictments.
A person subject to indictment by a grand jury must be afforded certain protections: the prosecution cannot bring the charge of perjury before the same jury that heard the questioned testimony because they already have a “state of mind in reference to the case”; the alleged perjuror is entitled to notice of the right to bring exculpatory evidence to the attention of the grand jury; and, the prosecutor’s instructions to the jury must focus on the elements of materiality and knowledge of falsity. (See McGill v. Superior Court (2011) 195 CA4th 1454.)
PG I(J)(2) Grand Jury Instructions: Right To Discovery.
People v. Superior Court (Mouchaourab) (2000) 78 CA4th 403, 436-37 held that the defendant has a right to discovery of information regarding certain nontestimonial proceedings before the grand jury, including the instructions the district attorney and supervising court give the grand jurors. The majority inferred the right to discovery of the nontestimonial portions of the grand jury record from state supreme court cases that considered such information in evaluating defendants’ statutory challenges to their indictments. (See also Johnson v. Superior Court (1975) 15 C3d 248 [prosecutor must present to grand jury exculpatory material of which prosecutor is aware]; People v. Backus (1979) 23 C3d 360; Cummiskey v. Superior Court (1992) 3 C4th 1018.)
When a grand jury indictment is challenged pursuant to PC 995 the reviewing court may consider instructional error, along with the evidence and the manner in which the prosecutor conducted the proceedings, to determine whether the grand jury found the indictment on less than reasonable and probable cause. (Cummiskey v. Superior Court (1992) 3 C4th 1018; see also People v. Gnass (2002) 101 CA4th 1271, 1314.) Among the instructional factors to consider is whether the grand jury was instructed on all elements of the alleged offense. (People v. Gnass, supra.)
PG I(J)(3) Grand Jury: Transcript Of Prosecutor’s Remarks To Grand Jurors.
A reviewing court may consider instructional error, along with the evidence and the manner in which the prosecutor conducted the proceedings, to determine whether the grand jury found the indictment on less than reasonable and probable cause. (Cummiskey v. Superior Court (1992) 3 C4th 1018; see also People v. Gnass (2002) 101 CA4th 1271, 1316.)
Accordingly, it may be argued that the failure to transcribe the prosecutor’s opening and closing remarks to the grand jury violates the accused’s constitutional rights to due process and equal protection. (See Gnass, 101 CA4th at 1316 [recognizing but not resolving this issue].)
