A defense attorney challenging the use of indicting grand juries in Philadelphia argued Friday in court that there is not enough transparency in the new form of charging criminal defendants to protect their rights.

Secrecy is part and parcel of the use of grand juries, said Michael J. Engle, of Greenblatt, Pierce, Engle, Funt & Flores. But the indicting grand jury, unlike in the federal system, does not make a switch from secrecy to transparency once a defendant has been indicted, Engle argued in front of Philadelphia Court of Common Pleas Judge Jeffrey P. Minehart.

"What we don't see in our system is that the secrecy is supposed to give way to transparency the moment that the defendant is accused of a crime," Engle said.

When Minehart, the supervising judge of the indicting grand jury in Philadelphia, makes his ruling, it is meant to be applicable to all cases proceeding through the indicting grand jury.

Engle, whose motion to dismiss the cases was joined by the Defender Association of Philadelphia and several other defense attorneys, said that there is no question that defendants have no constitutional rights to have a preliminary hearing or that it is constitutional to use grand juries.

But the Pennsylvania Supreme Court's enactment of the use of indicting grand juries in cases in which witness intimidation has occurred or is likely to occur is not just a procedural change within the court's purview, but a change that impedes upon criminal defendants' substantive rights, Engle said.

Minehart asked if the Supreme Court does not have exclusive jurisdiction over procedural rules.

In June 2012, the Supreme Court adopted a rule recommended by the Criminal Procedural Rules Committee to reinstate indicting grand juries in cases involving witness intimidation.

Suzan Willcox of the Philadelphia District Attorney's Office argued that the Supreme Court has exclusive power over procedure and that defendants' substantive rights are only to have a prima facie case made out against them before criminal charges are filed.

That can be done by any procedure, Willcox said.

So long as the procedure is not unconstitutional and unfair, making the process more difficult for some defendants is not a problem, Willcox said.

The Supreme Court, which has the authority to set up the process for cases in the criminal justice system, acted to respond to the fact that cases "halted" due to intimidation, Willcox said.

Under the state constitution, the Supreme Court has the power to prescribe rules for the conduct and administration of all courts in Pennsylvania so long as the rules do not abridge, enlarge or modify the substantive rights of any litigant.

Prior to 1973, there were indicting grand juries as of right, Engle said, but a constitutional amendment adopted that year got rid of the prohibition on initiating criminal cases through information. Then a statute was enacted that allowed individual judicial districts to opt to end the use of indicting grand juries in favor of only having defendants charged through informations, Engle said.

By 1993, every judicial district had done so, Engle said.

The same statute that authorized judicial districts to have criminal defendants charged by information also barred the use of indicting grand juries once the use of informations was adopted instead, Engle said.

But the court's adoption of indicting grand juries by rule not only treads upon the General Assembly's sole right to change the statute, but it modifies, if not abrogates, defendants' substantial rights, Engle said.

But Minehart said the prosecution's argument is that the Supreme Court had the right under the separation of powers between the branches of government to set the procedure for how criminal cases proceed.

Minehart also commented that an indictment requires a prima facie showing to a group of citizens that there is enough evidence to charge a defendant.

At the closing, Minehart said the grand jury process is an ongoing one because it has only been up and running since December 26.

But any issues of discovery not being turned over are ones that must be addressed, the judge said.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.