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New law likely to change how prosecutors seek indictments

October 4, 2018

ASTORIA, Ore. (AP) — A new Oregon state law that requires grand jury proceedings to be recorded will likely alter how some local prosecutors seek many felony indictments.

The Daily Astorian reports he law will take effect in July after it was signed into law by Gov. Kate Brown last year. While prosecutors typically seek secretive grand jury indictments in felony cases, many have said preliminary hearings, which are open to the public, will become more common.

“It’s a pretty big change in the statute,” Clatsop County District Attorney Josh Marquis said.

During grand jury hearings, a prosecutor calls witnesses to testify in front of seven jurors. They testify under oath, but a defense attorney is not present and witnesses are not subject to cross-examination. If five of the jurors find probable cause the case moves forward with an indictment.

Preliminary hearings, on the other hand, involve defense attorneys in the process. Instead of a jury, a judge rules on probable cause.

These hearings are useful for prosecutors when they believe a witness may change their statements or otherwise not be available later in the case, Deputy District Attorney Ron Brown said. Otherwise, they largely benefit defense attorneys, who have the ability to cross-examine witnesses.

During grand jury proceedings, one juror is designated to keep handwritten notes. When the new state law takes effect, prosecutors will need to either train a juror to record the proceeding using audio equipment or hire a certified shorthand reporter.

In more than 30 years as a prosecutor, Marquis recalls just a handful of times he’s pursued a preliminary hearing rather than a grand jury in felony cases. Now, both the district attorney and Brown, who will succeed Marquis in January, expect that preliminary hearings will be requested more regularly.

“It’s a bad idea, but it’s the law now.” Marquis said.

The requirements seek to address a perceived lack of transparency in the judicial system, especially with grand juries. Every other state in the country, with the exception of Louisiana, requires grand juries to be recorded. Civil rights groups have expressed support for the law.

“This is doable. It’s done in a lot of places,” said Kirk Wintermute, an Astoria criminal defense attorney. “There are a lot of issues with the justice system, and this is one of them.”

The recordings will also give defense attorneys more ammunition when cross-examining the same witnesses later in cases.

“People often make very different statements in grand jury than they do in trial,” Wintermute said. “Getting that extra statement under oath is really important.”

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