The Georgia House of Representatives just passed House Bill 941 in a landslide vote, 161-16. This bill continues to give Georgia Peace Officers the right to testify on their own behalf at grand jury proceedings, in cases involving the use of deadly force. It is absurd that this right to testify has not been afforded to any other defendants, yet was approved by a landslide for these officers. I am interested to see the public's reaction to this new bill, considering the already tainted public image of the grand jury system after Michael Brown and Eric Garner.
As the law presently exists, defendants do not have the right to testify, attend, or provide evidence to a Georgia Grand Jury. Defendants are not even entitled to notification of the existence of a grand jury investigation. Defendants cannot present evidence, put forth witnesses or testify at grand jury proceedings. Additionally, defendants do not have the right to allow their attorney to cross-examine any witnesses or be present at this hearing.
As for police officers, the law presently allows them to be notified of any grand jury proceeding, be present throughout the hearing, and to give a statement to the grand jurors without fear of being impeached through cross-examination. The law was designed with the understanding that police officers play a special role in society and are subjected to unique circumstances that warrant an explanation. It was designed to afford officers to chance to explain themselves to law people with little or no knowledge of how law enforcement works.
Georgia House Bill 941 would continue to require that police officers are notified of grand jury proceedings and would also invite them to participate in the hearing through testimony. Officers will be afforded the opportunity to make a statement to the grand jury after the prosecutor has finished presenting all other evidence. That gives officers the chance to refute any and all evidence that was presented against them. The only difference with House Bill 941 is now the police officer will be subject to cross-examination and impeachment. If this is necessary for the sake of truth finding and fairness, why do we not afford the same opportunity to all defendants?
On February 24th, the bill was read by the State Senate. As this bill moves to the State Senate vote, I am left with one question: is this a fair use of the grand jury process?
Is it Fair to All Defendants?
The grand jury process already has a tainted image in the eyes of the public. I find this to be a result of its confidentiality and the lack of public awareness to how the system was designed to work. The process was installed into our legal system as a way to protect defendants from frivolous prosecution. Most people have no idea how much influence the grand jury members have. The grand jury can question witnesses, request evidence, and even question the prosecutor. The grand jury is the check on unfettered prosecutorial power and police abuse.
Our legislature has considered the separation of officers from typical defendants to be a necessary to process cases involving deadly force. This bill will associate officers as agents of the state requiring more involvement in grand jury proceedings. I find this to be a wash argument. If all defendants are innocent until proven guilty, why separate police officers from other criminal defendants? Why would we authorize officers to prove their innocence in grand jury proceedings, when we do not afford any other defendant the same privilege?
My fear is that with Bill 941 being introduced, we are creating an imbalanced system. By treating police officers differently than everyone continues to create bias and unfairness. It also erodes public confidence in our criminal justice system when one class of defendants are treated differently than everyone else.
Is it Fair to Officers?
Even though the right to testify will be unique to peace officers, it does not come without consequences for officers to consider. Grand Jury testimony can be later used at trial as an impeachment tool by the prosecutor. It also allows Grand Jurors to find other wrongdoing that would not be exposed but for the admissions of the police officers at the hearing. Most criminal defense attorneys would likely advise police officer clients to invoke their 5th Amendment right to remain silent. Invoking the right to remain silent in front of the Grand Jury could cause jurors to assume guilt, even thought they would be instructed by the judge against that inference.
House Bill 941 does not afford peace officers the right to have their attorney cross-examine any witnesses at the proceedings. In fact, line 162-167 of the bill state that the presence of the accused's attorney is limited. Lawyers for the accused cannot question any witnesses and cannot state objections during the proceedings. The only influence the defendant's attorney has on the grand jury proceeding is the ability to advise their client while the court is in recess.
Although prosecutors already have the ability to request any defendants to testify at grand jury proceedings, that testimony may never infringe on their 5th amendment right to refrain from self-incrimination. Officers, as well as other defendants, can refuse to answer any line of questioning that may be incriminating.
A fair process is to treat all persons suspected of a crime the same. Only then will the public have confidence in our system, not matter who is accused of a crime.