The Cautionary Instruction: PA Supreme Court authorizes secret grand juries

The Pittsburgh Post-Gazette/Ipso Facto
June 29, 2012

The Pennsylvania Supreme Court has adopted a new set of rules authorizing prosecutors to use grand juries to bring indictments in cases that may involve witness intimidation.

For nearly 25 years, Pennsylvania has allowed for investigative grand juries, which recommend whether a prosecutor should file charges. The rule changes will enable grand juries to issue indictments sending a criminal case to trial without a preliminary hearing.

The grand jury indictments can be used only in cases where prosecutors have requested permission from the court to empanel the grand jury. The petition requesting a grand jury must include an affidavit establishing, by probable cause, that “witness intimidation has occurred, is occurring or is likely to occur.”

Can circumstantial evidence be used to show witness intimidation? It is not yet clear what would constitute probable cause that witness intimidation “is likely to occur.”

Would the fact that no witnesses would come forward or that witnesses say they are frightened to conduct interviews with law enforcement be enough to establish probable cause of witness intimidation?

In some areas of the state, particularly urban areas, there is a culture of not cooperating with the police. Can a grand jury be helpful where “no snitching” is a “badge of honor” as well as a symbol of intimidation?

Under the new rules, the grand jury will, in specific cases, replace the preliminary hearing. Traditionally, a magisterial district judge at a preliminary hearing decides whether the prosecution has presented enough evidence to send a case to trial.

Under the new rules a grand jury will perform a similar review of the evidence and testimony, and issues an indictment. The witnesses will testify in secret before the grand jury instead of in public, although the witnesses will still have to testify in open court when the case goes to trial.

The Supreme Court made the rule changes in response to pervasive witness intimidation in the Philadelphia court system.

Intimidation can include physical violence or property damage, explicit threats of physical violence or property damage, economic threats, and indirect and implicit threats, such as anonymous phone calls, Internet postings, publicly announcing the fact of a witness' cooperation with law enforcement, or repeatedly driving past the residence of the witness or another location where the witness is present, according to the Pennsylvania bench book on witness intimidation.

The cost of empanelling a grand jury may limit its use to larger jurisdictions. The costs of assigning court and prosecutorial staff to grand juries, having judges on call and paying juror fees creates a financial burden for small counties that doesn’t otherwise exist with magisterial district judges presiding over preliminary hearings.

Although witness intimidation is not exclusive to large jurisdictions, the resources to empanel a secret grand jury may be out of reach for most counties.

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