Request By:
Matthew B. Leveridge
Commonwealth's Attorney, 57th Judicial Circuit
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Nicole H. Pang, Assistant Attorney General
Opinion of the Attorney General
Commonwealth's Attorney Matthew B. Leveridge (hereinafter C.A. Leveridge) seeks this office's opinion asking whether a private citizen has the right to present evidence directly to the grand jury, thereby circumventing an evaluation and investigation of the case by the Commonwealth's Attorney.
The Grand Jury
The grand jury and the right to be prosecuted by indictment are Constitutionally guaranteed and long revered. KY. Const. § 248.
(1) All offenses required to be prosecuted by indictment pursuant to Section 12 of the Kentucky Constitution shall be prosecuted by indictment unless the defendant waives indictment by notice in writing to the circuit court, in which event the offense may be prosecuted forthwith by information.
(2) All other offenses shall be prosecuted by indictment, information, complaint, post-arrest complaint, or, in the case of traffic offenses or fish and wildlife offenses, may be prosecuted by uniform citation. RCr 6.02
Before one may sit on a grand jury, he or she is required to take an oath administered by the Circuit Court.
The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge? RCr 5.02
Twelve individuals sit on a grand jury in Kentucky. At least nine of the twelve members must concur before an indictment can be returned. KRS 29A.200. All information revealed while the grand jury meets and during its deliberations are confidential. Even the number of people permitted in the grand jury room during a case presentation is severely restricted by RCr 5.18 which states:
No person except the attorney or attorneys for the Commonwealth, a stenographer or operator of a recording device appointed by the attorney for the Commonwealth, the witness under examination, an interpreter, if needed, a parent, guardian or custodian of a minor witness or other person under disability, and the grand jurors shall be present while the grand jury is in session. No person other than the grand jurors shall be present while the grand jury is deliberating or voting. Any person violating this rule may be held in contempt of court.
Although the grand jury's charge is clearly a criminal prosecution procedure, it does not fall under the jurisdiction of the Commonwealth's Attorney's Office. Nevertheless, the Commonwealth's Attorney works closely with the grand jury. RCr 5.14 outlines the relationship:
(1) The attorney for the Commonwealth, or an assistant, designated by the attorney for the Commonwealth, shall attend the grand jurors when requested by them, and he or she may do so on his or her own initiative, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. The attorney for the Commonwealth or designated assistant shall also, when requested by them, draft indictments.
(2) At the time of the return of the indictment of a defendant the attorney for the Commonwealth shall inform the court of the defendant's status with respect to bail.
Discussion
The question currently before us involves a letter received by Commonwealth's Attorney Matthew Leveridge the week before the regular session of the grand jury was set to convene. The letter was from a private citizen and indicated that the citizen would be appearing before the grand jury to present evidence of "crimes". Evidence of the illegal activities would be presented to C. A. Leveridge in a sealed envelope which was to be handed, unopened, to the grand jury foreperson. The citizen refused to provide C.A. Leveridge with any information about the contents of the envelope including the name(s) of the accused or what charges he was seeking. He stated that C.A. Leveridge "might" be a witness at a later time; therefore he wanted the sealed envelope handed to the grand jury foreperson for evaluation, without any legal advice from the Commonwealth.
As in other circuits, C.A. Leveridge's office follows a policy which addresses private citizens who want to appear before a grand jury. Prior to any appearance, all evidence known to the private citizen to support the case he or she wants to present must be turned over to the Commonwealth. This information includes the names of all of the potential defendants. The evidence is then reviewed to determine if further investigation is required. If the Commonwealth finds probable cause to believe that a crime was committed, the case warrants prosecution and will be presented to the grand jury by the Commonwealth's Attorney. The complaining citizen is only permitted to address the grand jury if he or she is invited by the grand jury to do so.
The private citizen at the heart of this request is apparently aware of the Commonwealth's policy but chose not to follow the procedure. He appeared at the grand jury and again refused to provide C.A. Leveridge with any information about his complaint. The private citizen was not permitted to appear before the grand jury and this opinion was solicited to address the question, "Does a private citizen have the right to present evidence directly to the grand jury? "
Virtually every conceivable situation involving the presentation of a case to a regular grand jury is codified in Kentucky's Rules of Criminal Procedure and its statutes. In the question currently before us, we are presented with a citizen who believes that he has the absolute right to present evidence directly to a grand jury when neither the Commonwealth nor the defendant, the real parties in interest, are allowed the same privilege. There is no constitutionally guaranteed right to appear before a grand jury. Rather, it is the grand jury that is given the power to determine what evidence it will hear and who may appear.
The Commonwealth's Attorney may be present during a witness' testimony at the discretion of the grand jury.
"The Court shall further instruct the grand jurors concerning (a) their right to exclude the attorney for the Commonwealth while questioning witnesses..." RCr 5.02
So too, the criminal defendant must await an invitation to provide evidence to a grand jury.
If the defendant notifies the attorney for the Commonwealth in writing of his or her desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so. Kentucky Rule of Criminal Procedure 5.08
Clearly the Kentucky Legislature has recognized the sanctity of the grand jury process by specifically codifying in the Kentucky Rules of Criminal Procedure the procedures that must be followed when a grand jury is in session. While the Rules and accompanying statutes identify the roles of the Commonwealth and the defendant, no such provisions are made for private citizens.
The United States Supreme Court has long held that a private citizen has no judicially recognized interest in the prosecution of a case. In Linda R.S. v. Richard D., 410 U.S. 614, 93 S. Ct. 114 (1973), Linda R.S., the mother of Richard D's illegitimate child sought a judgment that would declare Texas' criminal non-support statute unconstitutional 1. She also sought an accompanying injunction directing the District Attorney to prosecute Richard D. In its decision, the U.S. Supreme Court stated:
The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 749, 27 L. Ed. 2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 551, 7 L. Ed. 2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S. Ct. 1752, 1754, 6 L. Ed. 2d 989 (1961).
Linda R.S. v. Richard D., 410 U.S. at 619. In Kentucky, the United States District Court, Western District of Kentucky, provided an analysis of the Commonwealth's case law and statutory provisions which delineate the grand jury process. In an eerily similar fact situation, the District Court addressed a civil action brought under 42 U.S.C. sec. 1983, 42 U.S.C. sec. 1981 and the Hobbs Act. Memorandum and Opinion, Case Number 1:05CV-167M, Faller v. Rogers. Plaintiff Faller was a private citizen who wanted to present evidence to a Russell County grand jury. The Commonwealth's Attorney refused him access and Faller filed suit in Federal Court alleging prosecutorial misconduct. Basing its evaluation on Kentucky case law, the court stated in a Memorandum Opinion 2 that Faller had no constitutional right to appear before a grand jury.
In as much as the Plaintiff complains about being denied access to certain grand juries, Kentucky courts have consistently held that a defendant has no constitutional right to appear personally or by counsel, Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky.2001), cert. denied, 535 U.S. 1059 (2002), or to present evidence at a grand jury proceeding, Nelson v. Shake, 82 S.W.3d 914, 916 (Ky.2002), or to determine what charges will be pursued for prosecution and therefore presented to a grand jury. See also United States v. Williams, 504 U.S. 36, 51-52 (1992). Significantly, the Kentucky Supreme Court stated that "[t]here is no constitutional right to appear before the grand jury; RCr 5.08 is an indulgence of this Court." Stopher, 57 S.W.3d at 794. Further, Plaintiff has presented no authority that permits a private citizen to present evidence before the grand jury or requires a prosecutor to permit a private citizen to do so.
Faller v. Rogers, 1:05CV-167M, 2006 WL314554 (W.D. Ky., February 8, 2006).
Furthermore, recent decisions by the Kentucky Supreme Court now recognize that a grand jury's purpose is twofold, (1) to determine if probable cause exists to issue an indictment, and (2) to serve as a buffer between an accuser and the accused.
The grand jury is "an investigative body acting independently of either prosecuting attorney or judge." United States v. Dionisio, 410 U.S. 1, 16, 93 S. Ct. 764, 773, 35 L. Ed. 2d 67 (1973) (internal quotation and citation omitted). "The hallmark of the grand jury is its independence from outside influence." Democratic Party of Ky. v. Graham, Ky., 976 S.W.2d 423, 426 (1998). "[I]t serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 1373, 8 L. Ed. 2d 569 (1962).
Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky. 2004).
Two years later the Supreme Court reiterated a similar position, stating that the grand jury serves as protection from unsupported criminal charges:
The grand jury has competing, but balanced, functions: on the one hand, its purpose is to investigate allegations of criminal conduct and determine if there is probable cause to believe that a crime has been committed; on the other, the grand jury serves to protect the public against unfounded criminal prosecutions where probable cause is lacking.
Fletcher v. Graham, 192 S.W.3d 350, 363 (Ky. 2006).
Based upon the Kentucky Supreme Court's discussion in Hoskins v. Maricle and Fletcher v. Graham, we have come to view C.A. Leveridge's request not so much as a question of a private citizen's right to present a case directly to the grand jury as it is a question of the rights of the public to be free from unwarranted and harassing criminal accusations.
Pursuant to the Kentucky Rules of Professional Conduct which have been adopted by the Kentucky Supreme Court in SCR 3.130, prosecutors have an obligation to prosecute only those cases in which they find probable cause. Kentucky Supreme Court Rule 3.130(3.8), entitled "Special Responsibilities of a Prosecutor" , mandates that:
The prosecutor at all stages of a proceeding shall:
Such restraints do not apply to private citizens who, in most cases, do not have legal training and therefore do not understand the constitutional rights of the accused, nor comprehend all of the legal technicalities and procedures involved in a constitutionally valid criminal prosecution. Our Legislature has gone to great lengths to protect the sanctity and privacy of the grand jury. The fact that the General Assembly has made no provision for private citizens, when it specifically limits the attendance of the Commonwealth and the defendant, does not mean that it sanctions an individual's unfettered access to the grand jury. Rather, the absence of any statutory provision related to a private citizen's ability to present a case to the grand jury indicates the opposite; that no such right exists. See Ryan v. Pennsylvania Life Insurance Company, 123 S.W.3d 142, 144 (Ky. 2004) (holding that the legal maxim expressio unius est exclusio alterius means that to express or include one thing implies exclusion of the alternative.)
Additionally, RCr 5.18 designates who may be in attendance when the grand jury meets. The Rule specifically excludes the presence of any person other than the prosecutor, stenographer, interpreter, grand jurors, testifying witness and the parent or guardian of a witness who is a minor child or person under a disability. A private citizen is not included in RCr 5.18's list of allowed attendees, therefore he or she has no right under RCr 5.18 to be present when a grand jury convenes.
Previous Attorney General Opinions
In 1980 and 1982, this office was asked to provide opinions as to whether or not a prosecutor could limit the appearance of witnesses requested by the grand jury.
In OAG 80-97, a Commonwealth's Attorney asked in part:
Does the fact of the dismissal of the case at the District Court level give the Commonwealth's Attorney the authority to refuse to permit that case to be brought before the Grand Jury, or, does the complaining witness have an unqualified right to go before the Grand Jury with any matter, regardless of whether the matter has been adversely disposed of at the District Court level?" OAG-80-97, p. 1.
We stated,
"It is our opinion that the fact of dismissal of the charge by the district court, standing alone, is not sufficient reason for the commonwealth's attorney to refuse to permit the complaining witness to come before the grand jury. "
However, we stipulated that the Commonwealth's Attorney was the party that should provide the dismissed case information to the grand jurors, not the witness.
When considering the interconnected roles of the prosecutor and grand jury, it is our view that in the situation you mention you may give the grand jury all the information you have on the subject warrant, arrest, dismissal, and then give them your advice as to whether there is probable cause. That leaves it up to the grand jury as to whether they will want to investigate the case and issue subpoenas for witnesses. RCr 5.06 and 5.12. In addition, there is nothing to prevent the complaining witness from requesting to be heard by the grand jury. ? As you suggest, the complaining witness may go before the grand jury if the grand jury so desires. Upon the advice of the commonwealth's attorney, it must exercise its sound discretion in determining whether or not it will investigate a particular matter such as this. OAG 80-97, p. 3.
In 1982, a somewhat similar question arose from the same Commonwealth's Attorney. In OAG-82-459, we were asked:
Specifically, you are asking whether, as Commonwealth's Attorney, and believing that a particular set of witnesses are only going to continue a 'political harangue' without substantial evidence of criminal law violation, you have the authority to exercise your discretion in shutting off such 'political testimony' from Grand Jury consideration?
OAG 82-459. Our response was as follows:
While you, as prosecutor, have the central role of presenting evidence before the grand jury (KRS 15.725 and RCr 5.14), while present with the grand jury, your role does not embrace ruling out the appearance of witnesses, which witnesses the grand jury desires to hear.
OAG 82-459. Office of the Attorney General Opinion 82-459 generally has been cited as authority that a prosecutor has no right to prevent a witness from appearing before a grand jury, with no mention of the qualifying "which witnesses the grand jury desires to hear. "
Most, if not all, of Kentucky's counties currently have some kind of policy in place to address citizen complaints. All jurisdictions are required to enact a policy for a citizen's request for a Domestic Violence Emergency Protective Order which involves the injured party swearing out a complaint. Although the majority of prosecutors follow a policy regarding the filing of general criminal complaints by private citizens, those policies are not always formally documented.
C.A. Leveridge's office follows an internal policy in which citizen complaints must be presented to the Commonwealth's Attorney for investigation to determine if there is probable cause that a crime was committed by an identified individual. Kentucky's largest Judicial Circuit, the 30th, which encompasses Jefferson County, has actually codified its citizen complaint policy in its Local Rules of Practice, Rule 701, which allows citizens to file complaints and seek warrants at the office of the Jefferson County Attorney. The complaints are then reviewed by a County Attorney and a District Court Judge to determine whether or not a prosecution is merited.
Analysis
Both of the aforementioned Attorney General Opinions were requested in the early 1980s and our responses were based on the case law in existence at that time. In so much as the Courts' opinions have evolved over the past 25 years, we too find that our response must evolve.
It is undisputed that a grand jury may determine the witnesses it wishes to interview. It is also undisputed that the grand jury has the duty to investigate any offense that comes to its attention. It then follows that a private citizen may appear as a witness before the grand jury, but only upon the grand jury's request.
The more current Kentucky cases indicate that the Supreme Court recognizes that the grand jury process could easily become fraught with abuse. While prosecutors are bound by the Kentucky Rules of Professional Conduct and other ethical considerations, a private citizen has no such boundaries. Opening up the grand jury process to private individuals who might have personal agendas such as retribution and harassment would impede our judicial system and impair the grand jury's role of protecting the public against unfounded criminal prosecutions. The Legislature has provided guidelines in which the Commonwealth's Attorney 3, is given the task of providing unbiased legal advice as to whether or not probable cause for an indictment exists. Complaints that have made their way to the grand jury through the District Court system or by way of direct presentation after a thorough investigation have already been vetted by the Commonwealth or law enforcement, and probable cause has been established. Such would not be the case were we to sanction the grand jury appearance of every disgruntled citizen who believes he has been wronged by another.
We can find no Kentucky legal authority that permits a private citizen to circumvent the Office of the Commonwealth's Attorney and present evidence of what the citizen believes to be illegal conduct. See Wanda Ellen Wakefield, Annotation, Individual' Right to Present Complaint or Evidence of Criminal Offense to Grand Jury, 24 A.L.R.4th 316 (1983 and Supp.) The private citizen in the instant analysis appears to believe that his demand to present evidence to the grand jury is justified by the fact that he believes that C.A. Leveridge is a potential witness. Not even the involvement of the Commonwealth's Attorney as a witness would permit the citizen, by default, to take the Commonwealth's place before the grand jury. Statutory provisions have been made by the Legislature to address situations in which a prosecutor becomes a witness. KRS 15.733. Any conflict of interest requires the prosecutor to disqualify himself from the case and request the assignment of a special prosecutor. Since the private citizen refuses to provide any information about his criminal complaint to the Commonwealth, C.A. Leveridge has no reason to believe that he is a witness. It is the Commonwealth's Attorney's ethical duty to disqualify himself if a conflict comes to light; however C.A. Leveridge has not been given the opportunity to determine if he is personally involved in the citizen's allegation of criminal activity.
Before rendering our opinion herein, we find that we must distinguish our earlier opinions, specifically OAG 82-459 which addressed the Commonwealth's attempts to absolutely prohibit certain witnesses from testifying. Although we stated in OAG 82-459 that "...your role does not embrace ruling out the appearance of witnesses..." we must reinforce the conditional language that follows: "which witnesses the grand jury desires to hear" . OAG 82-459 (emphasis added). The Commonwealth's Attorney in OAG 82-459 was well aware of the facts surrounding the grand jury investigation. He sought to exclude the testimony of witnesses he believed were abusing the grand jury process. This is a vastly different set of circumstances from those we are currently addressing.
Here, Commonwealth's Attorney Leveridge is acting in a complete vacuum. He has no information whatsoever about the charges the private individual seeks nor does he know the identity of the alleged perpetrators. He is unable to determine whether the evidence proffered by the private citizen actually supports a charge of criminal activity or if it is unfounded and little more than an attempt to harass and annoy another individual. It is impossible for him to determine if the complaint is supported by probable cause, and ethical considerations prevent him from pursuing any case in which he finds no merit. It would be extremely unethical for C.A. Leveridge to follow the private citizen's instructions and give the sealed envelope to the grand jury. Unlike the Commonwealth's Attorney in OAG 82-459, he is not attempting to prohibit the testimony of a witness "the grand jury desires to hear" . Rather, he is prohibiting the appearance of a private citizen who desires to stand in the Commonwealth's stead.
Due to the fact that the question we are here addressing is more specific than the questions we addressed in OAG 80-97 and OAG 82-459, we find that we must overrule those previous opinions to the effect that they indicate that this office advocates the view that a prosecutor may never prohibit an individual from appearing before a grand jury. Based on the current case law and the Rules of Procedure, it is our opinion that, absent a statutory provision, a private citizen has no independent right to present evidence directly to a grand jury.
Footnotes
Footnotes
1 Texas' criminal non-support statute applied only to the parents of "legitimate children.
2 The Faller v. Rogers Memorandum Opinion is not published in the Federal Supplement; however it is cited here based on its nearly identical fact situation
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3 And in certain circumstances, the County Attorney and the Attorney General
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