Request By:
David G. Colson, Esq.
Commonwealth's Attorney
P.O. Box 37
Manchester, Kentucky 40962
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether a person may serve as a grand jury reporter when that same person is also employed by defense counsel.
There is no specific statutory or constitutional provision prohibiting a person from serving at the same time as a reporter for the grand jury and as an employe of defense counsel. There is, however, a rule among the Kentucky Rules of Criminal Procedure (RCr) which if strictly followed should avoid any potential problems. RCr 5.16 requires that the attorney for the Commonwealth cause all of the testimony before a grand jury to be recorded. For this purpose, he may appoint a stenographer to take in shorthand the testimony of witneses or he may cause the testimony to be taken by a recording device. RCr 5.16(3) provides as follows:
"The stenographer or operator of the recording device and any typist who transcribes the stenographer's notes or recordings shall be sworn by the court not to disclose any testimony or the names of any witnesses except to the attorney for the Commonwealth or when testifying in court, and except that any person indicted by the grand jury shall have a right to procure a transcript of any stenographic report or a duplicate of any mechanical recording relating to his indictment or any part thereof upon payment of its reasonable cost."
RCr 5.24 provides in part that subject to the right of a person to procure a transcript or recording and subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret, except that counsel may divulge such information as may be necessary in preparing the case for trial or other disposition. The rule also provides that any violations of its provisions shall be punishable as a contempt of court.
While the Rules of Criminal Procedure set forth precise rules of conduct for those persons serving as the stenographer in connection with grand jury proceedings, the Commonwealth's Attorney for practical reasons and in an attempt to avoid even the possibility of difficulties may decide not to employ as the grand jury stenographer a person who also is employed by defense counsel. In addition, you may wish to consider the matter of common law conflicts or incompatibility. Whether a common law conflict exists is a matter for the courts to resolve but in connection with this concept we direct your attention to the cases of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122, 126 (1917) and Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937). At pages 144-145 of its opinion in Polley, supra, the court said in part:
". . . The two employments not being incompatible under the Constitution or statute, the case turns on whether the two offices or employments are incompatible under the common law. As said in Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44, 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinate to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'"
Thus, in conclusion, while there is no specific statutory or constitutional prohibition against a person working at the same time as a stenographer in connection with grand jury proceedings and as an employe of defense counsel, the Kentucky Rules of Criminal Procedure set forth precise standards pertaining to the conduct of the grand jury stenographer. Furthermore, practical considerations and the application of the principle of common law incompatibility may preclude the Commonwealth's Attorney from hiring a person as the grand jury stenographer who is also employed by defense counsel.