Van De Kamp, 033083 CAAGO, AGO 82-1107

• Case Date: March 30, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General JACK R. WINKLER Deputy Attorney General AGO 82-1107 No. 82-1107 California Attorney General Opinion Office of the Attorney General State of California March 30, 1983          THE HONORABLE THOMAS W. SNEDDON, DISTRICT ATTORNEY OF THE COUNTY OF SANTA BARBARA, has requested the opinion of this office on the following question:          1. Does a California grand jury have authority to admonish witnesses appearing before it not to reveal to others what the witness learns from his or her grand jury appearance about the matters under consideration by the grand jury?          2. What sanctions attend the violation of such an admonition by a grand jury witness?          CONCLUSION          1. A California grand jury has authority to admonish witnesses appearing before it not to reveal what questions were asked or responses given or other matters concerning the nature or subject of the grand jury's investigation which the witness learned during his or her grand jury appearance unless and until such time as the grand jury transcript is made public and except as directed by the court.          2. A violation of such an admonition by a grand jury witness is punishable as a contempt of court.          ANALYSIS          We are advised that it has been the practice in Santa Barbara County for the foreman of the grand jury to give the following admonition to witnesses appearing before the grand jury in proceedings which may lead to an indictment of crime or accusation of misconduct:

         "You are admonished not to discuss or repeat at any time, outside this jury room, the questions that have been asked you in regard to this matter, or your answers, with the understanding that such disclosures on your part may be the basis for a charge against you of 'Contempt of Court.' Of course, you are free to consult with an attorney for the purpose of seeking legal advice."

         We are asked whether such admonitions are authorized by California law, and whether any sanctions attend the disregarding of such an admonition by a witness.          A search of the Penal Code has revealed no provision which expressly relates to secrecy admonitions to grand jury witnesses. The three sections which do relate to grand jury witnesses provide as follows:          Section 929.2.1

         "A subpoena requiring the attendance of a witness before the grand jury may be signed and issued by the district attorney, or, upon request of the grand jury, by any judge of the superior court, for witnesses in the State, in support of the prosecution, for those witnesses whose testimony, in his opinion is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct."

         Section 929.3.

         "In any investigation or proceeding before a grand jury for any felony offense when a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, proceedings may be had under Section 1324."

         Section 929.4.

         "The foreman may administer an oath to any witness appearing before the grand jury."

         The oath contemplated by section 929.4 is the affirmation by the witness that the evidence given is the truth. See Code of Civil Procedure section 2094.          While no statutes were found expressly relating to secrecy admonitions to grand jury witnesses several Penal Code sections do evidence a clear legislative intention that grand jury proceedings remain secret, at least until the grand jury transcript of the proceedings is made public.          Section 915 provides:

         "When the grand jury has been impaneled, sworn, and charged, it shall retire to a private room, and inquire into the offenses cognizable by it. On the completion of the business before the grand jury, the court shall discharge it."

         Section 924.1 provides:

         "Every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or any other grand juror has voted on a matter before them, is guilty of a misdemeanor."

         Section 924.2 provides:

         "Each grand juror shall keep secret whatever he himself or any other grand juror has said, or in what manner he or any other grand juror has voted on a matter before them. Any court may require a grand juror to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before the grand jury by any person, upon a charge against such person for perjury in giving his testimony or upon trial therefor."

         Section 924.3 provides:

         "A grand juror cannot be questioned for anything he may say or any vote he may give in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow jurors."

         Section 939 provides:

         "No person other than those specified in Article 3 (commencing with Section 934), Chapter 3 of this title and in Section 939.1 is permitted to be present during the session of the grand jury except the members and witnesses actually under examination. No person shall be permitted to be present during the expression of the opinions of the grand jurors, or the giving of their votes upon any matter before them."

         Section 938.1(b) provides:

         "(b) The transcript [of the grand jury testimony] shall not be open to the public until 10 days after its delivery to the defendant or his attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending a determination as to whether all or part of the transcript should be sealed. If the court

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