Jeffrey Lindy
Editor's note: This article is the first in a two-part series about grand juries.
With the return of the indicting grand jury to Pennsylvania last week for cases involving witness intimidation, defense attorneys are raising concerns that the grand jury process provides much less protection for defendants, while prosecutors say that indicting grand juries are necessary to protect witnesses facing the threat of harm or even death if they testify about homicides and other serious crimes.
Criminal defense attorney Michael J. Engle, of the Law Offices of Michael J. Engle in Philadelphia, said there are no rules or mechanisms in Pennsylvania state court yet in which people subpoenaed to appear before a grand jury are advised that they are being subpoenaed as a witness who is most likely not facing criminal liability; as a subject of the grand jury who could potentially face criminal liability depending upon the development of the evidence; or as a target of the grand jury being advised that they are an imputed defendant and, "'We're coming after you and therefore you're on notice; you probably need a lawyer more than anyone else.'"
"I think it should be incumbent upon the prosecutor — whether it's a district attorney or attorney general — the prosecutor should have the obligation upon subpoenaing a witness [to ensure] those individuals are told whether or not they are the target, subject or witness to an investigation," Engle said. "They should be given that information ... so they can adequately decide how to exercise their constitutional rights."
The Philadelphia District Attorney's Office is planning on convening a separate indicting grand jury from its investigating grand jury, although the rules allow for investigating grand juries also to function as indicting grand juries.
Kirsten Heine, chief of the Philadelphia District Attorney's charging unit and who will be supervising the indicting grand juries along with fellow prosecutor Jacqueline Coelho, said there are no plans for target letters as used by federal prosecutors because the initial plan is to use the indicting grand juries post-arrest when defendants will already be on notice because they have been arrested and will have been appointed counsel.
Heine said she understands why defense counsel want to have the opportunity for cross-examination during a preliminary hearing but that indicting grand juries in witness intimidation cases reflect a "countervailing public interest" of keeping witnesses safe from being intimidated.
"In some cases a lot of pressure is brought to bear on our witnesses," Heine said. "This was what was necessary to keep them protected and make sure that someone does not just not get heard."
While prosecutors say that not having witnesses have to testify during public preliminary hearings will assuage witness intimidation, those witnesses still know they will have to testify at a jury trial, Engle said.
"All that it does is shortcut the preliminary hearing process," he said.
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