Appeal from the Circuit Court of DuPage County; the Hon.
PHILIP F. LOCKE, Judge, presiding. Judgment reversed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the Circuit Court of DuPage County, finding William V. Hopf, the State's Attorney for the county, in contempt of court for his wilful refusal to comply with an order of the court to produce, for the defendant, the grand jury transcript of the testimony of police sergeant, Harold Walthers, one of the witnesses. The State's Attorney was fined $50.
The contempt order arose in the case of The People v. Louis French. The grand jury returned an indictment for armed robbery against French. Prior to trial, the defendant moved for the production of the testimony of Walthers. He asserted in his motion that Walthers' testimony before the grand jury was vital to his case and necessary for the proper preparation of its defense.
The trial court granted defendant's motion and ordered that Walthers' testimony be presented to the defendant. The State's Attorney advised the court that a transcript of the testimony had been prepared; asserted that if the State, at the trial of the cause, called Walthers as a witness he would then deliver the transcript to the court for examination; suggested that, if the court found anything of an impeaching nature therein, it could then be delivered to the defendant's attorney for impeachment purposes; stated that he felt the order was premature, and refused to comply with it. The trial court then found the State's Attorney guilty of contempt. Thus, the issue before this court is whether a defendant may obtain a transcript of the testimony of a witness before the grand jury for preparation for the trial.
At the outset, it must be appreciated that the veil of secrecy surrounding grand jury proceedings is fundamental to our criminal procedure. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 400, 3 L Ed 1323, 1326 (1959); United States v. Johnson, 319 U.S. 503, 513, 87 L Ed 1546, 1555 (1943); Goodman v. United States, 108 F.2d 516, 519 (9th Cir 1939); United States v. Smyth, 104 F. Supp. 283, 301-2, 304 (ND Cal 1952); Gitchell v. People, 146 Ill. 175, 183, 33 N.E. 757 (1893); (Ill Rev Stats 1963, c 38, par 112-6.) Secrecy serves to insure the most efficient performance of the grand jury in its functions as both an accusatory and inquistorial body in that it helps:
(1) to prevent the escape of those indicted;
(2) to insure the grand jury freedom in its deliberations;
(3) to forestall subornation of perjury with witnesses who may testify before the grand jury and later at trial of those indicted by it;
(4) to encourage free and untrammeled disclosures by persons who have some information with respect to the commission of crimes; and
(5) to protect the innocent person, who is accused but exonerated, against unwarranted exposure.
In re Bullock, 103 F. Supp. 639, 642 (D D C, 1952); 8 Wigmore on Evidence, 3rd Ed secs 2360, 2361, pp 728-736 incl.
Some of the reasons for secrecy are removed after indictment. Others, obviously, are not. Further, the purpose of secrecy is designed to assure freedom of deliberation of future grand juries, and the participation of future witnesses, as well as to provide these assurances to those who appeared before the instant proceeding. United States v. American Medical Ass'n, et al., 26 F. Supp. 429, 430 (D D C, 1939). As was stated by Judge Leahy in United States v. General Motors Corp., 15 FRD 486 (D Del, 1954) at page 488:
"Revelation of the jury minutes may, or may not, have an adverse effect on the particular jurors and witnesses participating in the proceedings whose record is sought, but this alone is not the prime concern. The effect on subsequent proceedings, on jurors, on witnesses, on privacy of the system itself, is of greater moment."
That the secrecy surrounding the grand jury, is in part, designed to obtain testimony otherwise perhaps unavailable, was recently reaffirmed by the Supreme Court in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 3 L Ed2d 1323, 1327 (1959), where the court stated: "Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each witness knew that his testimony would soon be in the hands of the accused." It is of no great import that a particular witness may be willing to testify at the trial as well as before the grand jury, or that he has no fear of disclosure of his ...