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11/28/77 OPINION JUSTICES TO GOVERNOR

November 28, 1977

OPINION OF THE JUSTICES TO THE GOVERNOR


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Grand jury, Equal protection of laws, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices. Grand Jury, Presence of counsel. Practice, Criminal, Grand jury proceedings.

A legislative bill pending before the Governor to authorize any witness before a grand jury to have counsel present and to consult with him, but prohibiting counsel from making objections or arguments or otherwise addressing the grand jury or the district attorney, would not, if enacted, impair seriously the "secrecy" aspect of grand jury proceedings, and would not violate art. 12 of the Declaration of Rights of the Massachusetts Constitution [917-921]; the bill's silence on the matter of furnishing counsel to indigent grand jury witnesses without counsel does not manifest constitutional infirmity under the equal protection of the laws requirement in the Massachusetts and Federal Constitutions [921-922].

The Justices declined to answer a remote problem of constitutionality put by the Governor in a request for an opinion with respect to a legislative bill before him. [922]

On November 28, 1977, the Justices submitted the following answers to questions propounded to them by the Governor.

To His Excellency, the Governor of the Commonwealth:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in the request of the Governor, dated November 6, 1977, for our opinion concerning a bill, Senate No. 1482, now pending before him.

The bill, of which a copy was forwarded with the Governor's request, is entitled "An Act authorizing counsel to be present at grand jury proceedings," and reads in its entirety as follows: "Chapter 277 of the General Laws is hereby amended by inserting after section 14 the following section: -- Section 14A. Any person shall have the right to consult with counsel and to have counsel present at every step of any criminal proceeding at which such person is present, including the presentation of evidence, questioning, or examination before the grand jury; provided, however, that such counsel in a proceeding before a grand jury shall make no objections or arguments or otherwise address the grand jury or the district attorney. No witness may refuse to appear for reason of unavailablity of counsel for that witness."

The Governor inquires:

"1. Would the enactment of S. 1482, authorizing the presence of counsel for a witness before grand jury proceedings, violate Article 12 of the Declaration of Rights of the Constitution of the Commonwealth?"

Stating, in the preamble to his request, that "the appointment of counsel for indigent witnesses before grand jury proceedings is not expressly mandated and does not appear to be intended by said bill," the Governor inquires further:

"2. Would the enactment of S. 1482 invidiously discriminate against indigent grand jury witnesses without counsel, thereby denying such persons the equal protection of the law guaranteed by Articles 1, 10 and 12 of the Declaration of Rights of the Massachusetts Constitution and the Fourteenth Amendment to the United States Constitution?

"3. If the answer to question 2 is in the negative, would statements before a grand jury, or the fruits of such statements, made by an indigent witness without counsel be constitutionally admissible against such person in subsequent criminal proceedings?"

We invited the submission of briefs from any official or unofficial source, and express our thanks for those submitted. *fn1 The briefs, besides discussing the legal issues, have touched on questions of policy and feasibility raised by the proposed legislation, including the question of cost and, with respect to the grand jury, of possible impairment of its investigatory function. Although Discussion of these questions is natural in argumentative briefs, we emphasize that it is not part of our task to answer them and that it would be improper for us to attempt to do so. Our task is rather the different and narrow one ...


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