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Haley Holik | May 3, 2019
In Texas, any person accused of committing a felony has the right to a grand jury. Without historical context, though, one may wonder why Texas even bothered enshrining such a guarantee in the Texas Bill of Rights. Current practices have strayed far from the original intent of the grand jury, and the institution no longer operates as a “right” as much as it serves as a perfunctory step along the way to indictment.
The grand jury was designed to act independently of the State and provide protection to those who are still innocent under the law. The unique investigatory powers of the grand jury are for the people, not the government. Given the current law in Texas, however, it is not surprising the disparity between the original purpose of the grand jury and modern practice has grown so stark.
In Texas, prosecutors are allowed to present the same evidence to successive grand juries without limitation. This means that if grand jurors decide probable cause does not exist to charge an individual, the State’s attorney can simply convene a different grand jury. Moreover, while prosecutors are the only attorneys that present evidence to the grand jury, State’s attorneys are under no legal obligation to present exculpatory evidence. If the goal is to determine whether probable cause exists, the grand jury should have all the pieces of the puzzle. These practices undermine the independence of the grand jury and place individuals at risk of undue embarrassment, harassment, and personal costs.
But Texas lawmakers still have a chance to respond to these problems and others during the 86th Legislative Session. SB 1492 would help restore fairness and equity to grand jury proceedings while still allowing Texas to prosecute criminals. Other states have incorporated similar policies for years without experiencing negative consequences. Now is the time for Texas to do the same.
SB 1492 would codify the requirement that prosecutors present exculpatory evidence to the grand jury and preclude subsequent grand juries unless new, material evidence that was previously unknown is discovered. These bills would also bring Texas up to par regarding transcription. Under current Texas law, only the testimony of a suspect must be recorded or transcribed. Over thirty states require a higher level of transcription of the grand jury proceedings. The purpose of this reform is to facilitate case preparation for both sides, but particularly defense counsel who is disallowed in the grand jury room at all times.
The grand jury room is the only place in the criminal justice system in which a person asking for an attorney in the room will be denied. This runs counter to fairness, as individuals before a grand jury must navigate a number of legal hazards, including the possibility of self-incrimination and waiver of important privileges. SB 1492 would address this issue by providing all witnesses, including suspects, the right to presence of counsel in the grand jury room while they are testifying. Allowing witnesses to have an attorney by their side strictly for consultation purposes will ensure that individuals can participate in the proceeding without unwittingly incriminating themselves.
Opposition to SB 1492 has indicated legislation is unnecessary, in part, because prosecutors already implement these policies in certain circumstances. But our entire system of government is based on the idea that we are ruled by laws, not men. Institutional norm is an illegitimate reason to forsake fairness in our criminal justice system. Texans need the Legislature to codify these policies so every person may be afforded the same due process—regardless of jurisdiction or personal practice of a State’s attorney.
Our elected officials must prioritize reforms that ensure equity in every step of the criminal justice process, even if that means taking a hard look at ingrained policies that practitioners have come to rely upon over time. When liberty and freedom are at stake, efficiency should not serve as the only guidepost for crafting policy. Lawmakers need to take meaningful steps to restore the grand jury to the safeguard it was intended to be, and the policies embodied in SB 1492 is the way to do it.