Committee Comments

Rule 12.7(a) applies only to persons under investigation by the grand jury and does not reach persons not under suspicion and called only as witnesses.

The first sentence provides for compulsory attendance before the grand jury of a person under investigation. Authority for this rule is found in Ala. Code 1975, § 12-16-197, which directs the prosecutor, the foreman of the grand jury or the clerk of the court to issue subpoenas for any witnesses the grand jury desires to have appear before it, and provides that a proceeding be had against any defaulting witnesses. The proceeding contemplated by the statute is one of contempt. See Newsum v. State, 78 Ala. 407 (1885).

Rule 12.7(a) also permits a person under investigation by the grand jury to appear before that body upon written request. The rule is discretionary and is not intended to create an absolute right on the part of a person under investigation to appear before the grand jury. Federal courts have long held that a potential defendant has no absolute right to appear before a grand jury. See, e.g., Duke v. United States, 90 F.2d 840, 841(4th Cir. 1937), cert. denied, 302 U.S. 685, 58 S. Ct. 33, 82 L. Ed. 528 (1937); United States ex rel. McCann v. Thompson, 144 F.2d 604, 605 (2d Cir.), cert. denied, 323 U.S. 790, 65 S. Ct. 313, 89 L. Ed. 630 (1944).

There are several states that do not recognize a right on the part of a potential defendant to appear before the grand jury. See, e.g., State v. Salazar, 469 P.2d 157, 158 (N.M. 1970); State v. Panagoulis, 253 Md. 699, 253 A.2d 877, 883 (1969); Maiden v. State, 84 Nev. 443, 442 P.2d 902 (1968); Allred v. State, 187 So. 2d 28 (Miss. 1966); People v. Dupree, 156 Cal. App. 2d 60, 319 P.2d 39, 42-43 (1957).

However, at least one state does recognize such a right. In People v. Waters, 313 N.Y.S.2d 124, 27 N.Y.2d 553, 261 N.E.2d 265, 266 (1970), the court held that a defendant’s right to appear before a grand jury, granted by the code of criminal procedure, is a personal right and does not extend to allow an appearance by counsel. Another state, while denying that a right to appear exists, recognizes that a defendant should be allowed the privilege of being present in the grand jury room during the taking of evidence. State v. Menillo, 159 Conn. 264, 268 A.2d 667, 672 (1970).

The Advisory Committee is of the opinion that the better practice is to allow the grand jury, in its discretion, to either permit or disallow the person under investigation to appear before the grand jury. As one court stated, “The grand jury has in all ages stood between the accused and his unjust accusers.” While there is no right to cross-examine witnesses or to introduce evidence in rebuttal, “one accused of crime may often times, by himself testifying before the grand jury clear up the charges against him so that no indictment is returned.” United States v. Levinson, 405 F.2d 971, 980 (6th Cir.), cert. denied, 395 U.S. 958, 89 S. Ct. 1746, 23 L. Ed. 2d 219 (1968).

A person under investigation is given a right under the rule to consult with an attorney outside the grand jury room as a means of enforcing the right against self-incrimination. This is the practice in federal courts. See, e.g., In re Grumbles, 453 F.2d 119, 120 n.1 (3d Cir. 1971), cert. denied, 406 U.S. 932, 92 S. Ct. 1806, 32 L. Ed. 2d 134 (1972); United States v. Corallo, 413 F.2d 1306, 1330 (2d Cir.), cert. denied, 396 U.S. 958, 90S. Ct. 431, 24 L. Ed. 2d 422 (1969); United States v. Leighton, 265 F. Supp. 27, 38 (S.D.N.Y. 1967), and it is anticipated that the procedure will operate in the same way under this rule.

Rule 12.7(b) provides for a grant of immunity by the grand jury to persons under investigation who are called to appear before the grand jury. There are no provisions in Alabama law providing such immunity. Art. 8, § 189, Alabama Constitution of 1901, provides that in investigation and criminal proceedings for violations of the election law no person other than a defendant may refuse to testify on the ground of self-incrimination, but such persons may not be prosecuted for any offense arising out of the transactions concerning which he testified. Ala. Code 1975, § 12-21-223, provides that where two or more persons are jointly indicted, the court may order one party discharged from the indictment in order to testify, but such order “operates as an acquittal of such defendant provided he does testify.” Ala. Code 1975, § 28-4-318, provides in the context of investigation of violation of liquor laws that “[a] witness must not be prosecuted for any offense as to which he testifies before the grand jury; and the solicitor or any member of the grand jury may be a witness to prove that fact.”

A similar rule is in effect under the federal system. 18 U.S.C. 6002 (1970) provides:

“Immunity generally.

“Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to – “(1) a court or grand jury of the United States,

“… and the person presiding over the proceeding communicates to the witness an order issued under this part …, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal cases except a prosecution for perjury giving a false statement, or otherwise failing to comply with the order.”

The difficult part of a rule granting immunity is the scope of the immunity. On one hand, it is not permissible for the state to coerce testimony under a grant of immunity which removes the protection of the Fifth Amendment and then use information gained to prosecute for related offenses. On the other hand, a defendant should not be permitted to avoid prosecution by testifying beyond the scope of the immunity granted him. Thus, the scope of the immunity to be granted takes into consideration incrimination for other offenses in Alabama, the United States, other states and United States territories and foreign jurisdictions with whom the United States has treaties providing for extradition. It should also be clear that a witness who has been called to appear before a grand jury without a grant of immunity may not waive his right to remain silent and still obtain de facto immunity by testifying voluntarily. Likewise, a witness appearing under a specific grant of immunity could not voluntarily give incriminating testimony about offenses beyond the scope of the immunity granted and thereby obtain a de facto extension of the immunity into a broader area than intended by the court.

Because the grant of immunity from prosecution may, in a significant sense, affect the substantive rights of the parties, the issue arises of whether this rule is procedural or substantive in scope. This question seems to be answered in Ex parte Graddick, 501 So. 2d 444 (Ala. 1986), and Ex parte Gipson,375 So. 2d 514 (Ala. 1979), wherein the court set forth the procedure for granting immunity. Rule 12.7 is patterned after the procedure set out in Ex parte Graddick, 501 So. 2d 444 (Ala. 1986).

See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).