A committee reviewing the state’s grand jury process for criminal indictments is discussing whether or not Ohio’s Constitution needs to be changed to mirror Hawaii’s system.
The Ohio Constitutional Modernization Commission’s Judicial Branch and Administration of Justice Committee met March 9 in Columbus and discussed draft versions of proposals that could possibly change the grand jury process in Ohio.
One change proposes providing a grand jury legal advisor to members of the grand jury, apart from the prosecutor’s office, a process the committee said would be similar to Hawaii’s criminal justice system.
In grand jury proceedings in Ohio, the grand jury looks at cases to decide if there is enough reason to initiate legal proceedings against the accused and issue an indictment for a felony crime. The grand jury meets secretly in the county’s court of common pleas with the prosecuting attorneys. In Fayette County they meet twice a month. In larger cities, grand juries meet daily.
The grand jury (distinguishable and separate from a trial jury) is a nine-member panel made up of public individuals selected from voter or driver registrations in the county.
The committee’s current draft versions provide three choices to consider: to propose that no constitutional changes be made to the grand jury process; make changes to the grand jury process by amending the Ohio Constitution’s Bill of Rights; or give authorization for the Ohio General Assembly to enact legislation that would change the Ohio Constitution surrounding the grand jury process.
The last time Ohio’s Constitution was amended for the grand jury process was in 1912.
“I would be concerned of any change in the grand jury process, particularly the kind of changes they’re proposing,” said Fayette County Prosecutor Jess Weade. “They want to add an independent legal advisor to the grand jury, separate and apart from the prosecutor, which is somewhat like saying prosecutors can’t be ethical and advise grand juries of what the law is in the state of Ohio.”
More than one committee member at the meeting was supportive of changing Ohio’s grand jury process to something similar to the Hawaii system. One committee member at the meeting, Jeff Jacobson, said, “[T]here are examples, not necessarily in Ohio, of the miscarriage of the indictment power.”
Another proposed change would allow for the defendant in the case to have a grand jury transcript of witness testimony. Currently transcripts of witness testimony read before the grand jury are not subject to disclosure to the defendant.
“Some things that are currently confidential would no longer be confidential, like witness testimony. Let’s say you have a rape victim who would come in and testify. As long as you’re telling the truth, it would stay confidential. One of the proposals is that their testimony must be provided to the defendant in the case. Would this proposal impact the willingness of people to come forward? I believe that it would,” said Weade.
A witness list is provided to the defendant and evidence does become available to the defendant later through the due process of discovery in the case as mandated by the rules for criminal procedure.
Dennis Mulvihill, a proponent for changing Ohio’s Constitution, said there is no fairness to the current system, and that it is fundamentally unfair and maybe even violates due process to deny the defendant the transcript.
But Weade said that there’s a lot of history to why the grand jury meets in secret and those reasons include protecting the victims, witnesses and the accused.
“There has been a lot of misinformation out there about the role of the grand jury in our criminal justice system and how it’s been abused,” said Weade.
As an example, Weade said a lot of people around the country have been excited about indictments or the lack of indictments in cases of police use of force. Weade said it may be a concern for a tiny percentage of cases but doesn’t believe anyone has demonstrated how the proposed changes being made to Ohio’s Constitution would impact those cases.
“We’re working with other prosecutors in the state in terms of how we go about fighting what we consider to be unnecessary constitutional changes,” Weade said.
Ashley can be reached at (740) 313-0355 or on Twitter @ashbunton