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On Behalf of Defendants

June 02, 1985

In 1978 the California Supreme Court ruled that defendants indicted by grand juries were entitled to preliminary court hearings before they could be tried for felony crimes. Before that ruling, a district attorney could get a grand jury indictment that deprived a felony defendant of a preliminary hearing to determine if there was probable cause for a trial.

The needed reform has helped protect defendants' rights, but now the Orange County Grand Jury is urging that the county Board of Supervisors support a constitutional amendment proposed by Sen. Ed Davis (R-Chatsworth) that would overturn the 1978 decision.

The county board should have no part of it. Under the old system there was a constant danger that the grand jury could become an instrument of prosecutors and deny defendants fundamental constitutional rights and protections. Some prosecutors used the grand jury indictment procedure simply to bypass the preliminary hearing, and were sometimes able to obtain indictments on charges that would not hold up in a preliminary hearing before a judge.

In preliminary hearings, unlike grand jury procedures, an accused can confront and cross-examine hostile witnesses, testify in his own behalf, object to or present evidence and e represented by an attorney. In the grand jury room the prosecutor is almost always in complete control of the process.

The grand jury's main argument in favor of the indictment system is based on cost and expediency. It cited, in addition to several relatively lengthy preliminary hearings in Orange County in recent years, the length of time and public cost involved in the preliminary hearing going on in Los Angeles County for seven defendants accused of molesting children at the McMartin Preschool in Manhattan Beach.

But the issue is not cost. The issue is not expediency. When it comes to criminal charges, the issue must be a defendant's constitutional rights. And justice. That is why the state Supreme Court, in its 5-2 decision, concluded that "an accused is denied equal protection if he is indicted and then deprived of a preliminary hearing."

There is another practical reason for the supervisors not supporting the grand jury effort. With the present court-ordered reform, prosecutors have been bypassing grand juries to avoid a duplication of effort. This gives the grand jury more of the time that it needed before to devote to its critical function of monitoring local government to expose corruption and evaluate efficiency.

As a result, the grand jury system functions even better in its dual role as a governmental watchdog and as a criminal panel.

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