Appeal from the Appellate Court for the Second District; heard
in that court on appeals from the Circuit Court of Kane County,
the Hon. John A. Leifheit, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Pursuant to their pretrial motions, the circuit court of Kane County dismissed certain counts of the indictments returned against defendants, Marvin Reed and Frederick Rodgers, on the grounds that no evidence was presented to the grand jury in support of those charges. The appellate court reversed and remanded the causes, holding that trial courts> lack authority to review the transcript of proceedings upon which an indictment is based. (98 Ill. App.3d 999.) We granted defendants leave to appeal in these consolidated cases.
The issue is whether a trial court may properly dismiss an indictment, valid on its face, on the grounds that no evidence was presented in support of the charge.
In cause No. 55595, defendant Reed was charged in an 11-count indictment with theft, theft of a motor vehicle, and conspiracy to commit theft. He moved to dismiss counts IX, X, and XI, the conspiracy charges, on the grounds that they were not supported by any evidence. The trial court relied on defendant's assertion and dismissed these counts without reading the grand jury transcript. Consequently, this transcript was never made a part of the record and is not available for review.
In cause No. 55561, defendant Rodgers was indicted by a different grand jury on the charges of theft, theft of a motor vehicle, and conspiracy to commit theft. He appeared before a different judge and moved to dismiss count III, the conspiracy charge, for lack of any evidence. After reviewing the grand jury transcript, the court granted defendant's motion. In reversing both causes, the appellate court determined that prior case law and considerations of judicial economy precluded review of the evidence presented to the grand jury.
The State contends that trial courts> lack authority to inquire into the transcript of proceedings upon which an indictment is based. It argues that case law precludes any consideration of the adequacy or sufficiency of the evidence presented to the grand jury in support of the charge. Further, the need for a prompt administration of justice prohibits any review of the grand jury transcripts.
Historically, the extent to which defendants have been afforded procedural safeguards during grand jury proceedings has been substantially limited. "Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial." (United States v. Calandra (1974), 414 U.S. 338, 349, 38 L.Ed.2d 561, 572, 94 S.Ct. 613, 620.) Thus, for example, it has been held that an indictment may not be attacked on the ground that it was based on evidence seized in violation of the fourth amendment (United States v. Calandra (1974), 414 U.S. 338, 38 L.Ed.2d 561, 94 S.Ct. 613); that it was based on hearsay evidence (Costello v. United States (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406; People v. Creque (1978), 72 Ill.2d 515, cert. denied (1979), 441 U.S. 912, 60 L.Ed.2d 384, 99 S.Ct. 2010); that it was based on some incompetent testimony (see People v. Jones (1960), 19 Ill.2d 37, 41); or that no evidence as to an essential element of the offense was presented to the grand jury. (See Annot., 59 A.L.R. 567, 579 (1929), and cases cited therein. But see Brady v. United States (8th Cir. 1928), 24 F.2d 405, 408 (indictment will be quashed unless some evidence on each element of the offense is presented to the grand jury).) In addition, as noted by the State, there are numerous cases which indicate that a court will not consider the adequacy or sufficiency of the evidence. Costello v. United States (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406; People v. Creque (1978), 72 Ill.2d 515, cert. denied (1979), 441 U.S. 912, 60 L.Ed.2d 384, 99 S.Ct. 2010; see People v. Whitlow (1982), 89 Ill.2d 322, 331.
Over the years, courts> have carved out certain exceptions to the general rule that a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury. One of the well-established exceptions involves situations in which all of the witnesses testifying before the grand jury are legally incompetent. (E.g., People v. Jones (1960), 19 Ill.2d 37, 41-42; People v. Lambersky (1951), 410 Ill. 451.) Defendants have also been permitted to challenge indictments where there are clear allegations of prosecutorial misconduct (People v. Linzy (1979), 78 Ill.2d 106, 109; People v. Sears (1971), 49 Ill.2d 14; see generally Granelli, Defense Peers Into Grand Jury, Nat'l L.J., June 22, 1981, at 1); where the prosecutor's unsworn testimony is the only evidence presented to the grand jury (United States v. Hodge (5th Cir. 1974), 496 F.2d 87); where the indictment is based on mere suspicion (People v. Hodgson (1957), 6 Misc.2d 683, 684, 167 N.Y.S.2d 291, 292); and when the grand jurors do not hear all of the evidence presented (People v. Fujita (1974), 43 Cal.App.3d 454, 478, 117 Cal.Rptr. 757, 771, cert. denied (1975), 421 U.S. 964, 44 L.Ed.2d 451, 95 S.Ct. 1952; but see United States v. Lang (7th Cir. 1981), 644 F.2d 1232). In a recent opinion, one jurisdiction intimated that grand jury witnesses may soon be permitted to have counsel present during the grand jury proceedings if prosecutors fail to fairly phrase questions posed to the witnesses. United States v. Martellano (7th Cir. 1982), 675 F.2d 940.
The cases which the State cites generally preclude any inquiry into the adequacy or sufficiency of the evidence. However, the cited cases do not address the precise question with which we are confronted: May the grand jury return an indictment unsupported by any evidence, as opposed to inadequate or incompetent evidence? Both the appellate court and the State recognize this distinction, but believe that it is "one without a difference." We disagree.
"A grand jury's function is to return an indictment against a person only when the evidence presented to it indicates that he has committed a public offense. It is no Star Chamber tribunal empowered to return arbitrary indictments unsupported by any evidence." (Greenberg v. Superior Court (1942), 19 Cal.2d 319, 321, 121 P.2d 713, 715.) Indeed, the grand jury is expected to indict an accused only if it determines that there is probable cause for believing that he or she has committed an offense. (Ill. Rev. Stat. 1977, ch. 38, par. 112-4(d).) To return a true bill where there is absolutely no evidence connecting the accused to the offense charged would be an abdication of the important responsibility with which the grand jury has been entrusted. See United States v. Costello (2d Cir. 1955), 221 F.2d 668, 677, aff'd on other grounds (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406.
In the recent case of People v. Whitlow (1982), 89 Ill.2d 322, the defendants alleged that no evidence of criminal conduct, in support of the charges, was presented to the grand jury. We undertook to review the grand jury transcript and determined that there was evidence from which defendants' illegal conduct could be inferred. Having determined that there was some evidence in support of the charges, this court declined to inquire into the adequacy of that evidence. Thus, contrary to the State's assertion, Whitlow impliedly countenanced the type of review now requested.
Further, although there is a split of authority on this question, a number of jurisdictions have held that an indictment will be quashed where there is no evidence which tends to support the charges. (E.g., Brady v. United States (8th Cir. 1928), 24 F.2d 405; People v. Hodgson (1957), 6 Misc.2d 683, 167 N.Y.S.2d 291; Greenberg v. Superior Court (1942), 19 Cal.2d 319, 121 P.2d 713; see Annot., 59 A.L.R. 567 (1929); 42 C.J.S. Indictments & Informations sec. 24(c)(1) (1944).) Indeed, many of the same decisions rejecting challenges to the sufficiency of the evidence suggest that an indictment unsupported by any evidence will be dismissed. See Kamisar, LaFave & Israel, Modern Criminal Procedure 1049 (5th ed. 1980).
To require an individual to defend himself against an empty charge is to ignore one of the primary functions of a grand jury, which is to act as a "shield" against arbitrary prosecutions. (Kamisar, LaFave & Israel, Modern Criminal Procedure 1015 (5th ed. 1980).) "Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia (1962), 370 U.S. 375, 390, 8 L.Ed.2d 569, 580, 82 S.Ct. 1364, 1373.
We do not find persuasive the State's further argument that the need for a prompt administration of justice precludes any review of the grand jury transcripts. Concededly, there are important interests in securing the prompt and efficient disposition of cases. However, attaining efficiency at the expense of justice is not an accomplishment to be admired. And it is no answer that an accused's innocence may be vindicated at trial. "For a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man's escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the ...