Kansas Grand Juries
As required by Kansas law, the Petition was transmitted by the Clerk of the District
Court to the Shawnee County Commissioner of Elections. On May 1, 2006, the Commissioner
of Elections filed a Certification with the Clerk of the District Court in which she stated that the
signatures on the Petition had been compared with those on file in her office. Based on this
comparison, the Elections Commissioner found that the Petition requesting a Grand Jury
contained "valid signatures of more than 1,468 of the registered voters in Shawnee County on
the first 148 pages that were checked, which is more than 2% plus 100 of the total votes cast
for governor in the last preceding general election as required by K.S.A. 22-3001(2)."
On May 9, 2006, a Special Meeting of the Judges of the District Court of Shawnee
County, Kansas, was held to consider the Petition. After reviewing both the Certification and
the Petition, the District Court Judges unanimously found (with all 14 Judges participating) that
the Petition was in substantially the proper form and that it contained the signatures of the
required number of electors of Shawnee County. Thus, a Grand Jury was ordered to be
III. IMPANELING OF GRAND JURY
Pursuant to K.S.A. 22-3001(3), the names of potential Grand Jurors were drawn in the
same manner as petit jurors in the District Court of Shawnee County, Kansas. The potential
Grand Jurors were summoned to appear at the Shawnee County Courthouse on June 7, 2006.
On that date, the Court inquired of the jury panel on the record regarding their legal
qualifications, possible conflicts of interest and potential hardships. The District Attorney was
then permitted to ask questions of the jury panel on the record. After the Court excused two (2)
members who requested to be removed from the jury panel, 15 people representing a cross-
section of the citizens of Shawnee County were selected to serve as Grand Jurors.
Based on the information obtained during voir dire, the Court appointed a Presiding
Grand Juror and a Deputy Presiding Grand Juror as required by K.S.A. 22-3004. Thereafter, the
following oath was then administered to the Presiding Grand Juror on the record pursuant to
"Do you solemnly swear or affirm, as Presiding Juror of the Grand Jury, to
diligently inquire, and true presentment make, of all public offenses against the
laws of this state cognizable by this Court, committed or triable within this
county, of which you have or can obtain legal evidence, to present no person
through malice, hatred or ill will, nor leave any unrepresented through fear, favor
or affection, or for any reward or the promise of hope thereof, but in all your
presentments present the truth, the whole truth and nothing but the truth
according to the best of your skill and understanding so help you God?"
After the Presiding Grand Juror was sworn, the following oath was administered to the
other members of the Grand Jury on the record as required by K.S.A. 22-3003:
"The same oath or affirmation, which your Presiding Juror has now taken before
you on the Presiding Juror's part, do you and each of you solemnly swear or
affirm to well and truly observe on your part so help you God?"
Once the entire Grand Jury had been impaneled and sworn, the Court presented the
"Grand Jury Charge and Instructions" to the Grand Jurors as required by K.S.A. 22-3005(1).
After the Grand Jury had been charged and instructed, the Grand Jurors retired to a private
room pursuant to K.S.A. 22-3005(2). In the Grand Jury room, each of the Grand Jurors was
provided with a copy of the "Grand Jury Charge and Instructions" for use as a reference during
the Grand Jury proceedings.
IV. ISSUES PRESENTED
In the Defendant's Motion to Dismiss, the following issues were identified:
1. Whether the Grand Jury which returned the Indictment against the Defendant was
properly convened pursuant to Kansas law; and,
2. Whether the Grand Jury which returned the Indictment against the Defendant had the
authority to investigate and hand down indictments on alleged criminal conduct other than the
specific crimes alleged in the Petition requesting that a Grand Jury be convened in Shawnee
V. ANALYSIS AND AUTHORITIES
A. Grand Juries at Common Law.
The Founding fathers of the United States felt so strongly about the virtues of the grand
jury system that it is protected by our Bill of Rights. The Fifth Amendment to the United States
"No person shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury. . ."
However, the United States Supreme Court has held that the Fifth Amendment right of
indictment by a Grand Jury is not binding on the individual states through the Fourteenth
Amendment. See Hurtado v. California, 110 U.S. 516 (1884). Notwithstanding, nearly all of
the states continue to use Grand Juries as a way to investigate criminal conduct and to
commence criminal prosecutions. Moreover, in most states, Grand Juries continue to bear a
significant resemblance to those which existed at common law.
The United States Supreme Court has explained the scope of a grand jury's powers as
"Traditionally the grand jury has been accorded wide latitude to
inquire into violations of criminal law. No judge presides to
monitor its proceedings. It deliberates in secret and may
determine alone the course of its inquiry. The grand jury may
compel the production of evidence or the testimony of witnesses as
it considers appropriate, and its operation generally is unrestrained
by the technical procedural and evidentiary rules governing the
conduct of criminal trials. ‘It is a grand inquest, a body with powers
of investigation and inquisition, the scope of whose inquiries is not
to be limited narrowly by questions of propriety or forecasts of the
probable result of the investigation, or by doubts whether any
particular individual will be found properly subject to accusation.
Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63
L.Ed. 979 (1919)."(Emphasis added.)
United States v. Calandra, 414 U.S. 338, 343 (1974).
In reviewing the development of the Grand Jury at common law, one of the best
summaries which this Court has read is found in the Supreme Court of Rhode Island's decision
in Opinion to the Governor, 62 R.I. 200, 203, 4 A.2d 487 (1939). In its decision, the Rhode
Island Supreme Court wrote:
"It is unnecessary here to go at great length into the history of the grand jury. It
was so definitely fixed and established in the law of England that its composition,
purpose and scope of power in certain criminal matters were universally known
and accepted, and they are not now open to dispute. Almost from time
immemorial, the grand jury was composed of not more than twenty-three sworn
members and the concurrence of at least twelve of such members was always
necessary in order to return a valid indictment. One of its main purposes was to
protect the rights of the individual citizen against possible oppression by the
crown or its agencies in the prosecution of crimes; or . . . to safeguard the
individual's rights against private malice, party passion or governmental abuse.
The powers of the grand jury were indeed broad and were not specifically limited
merely to matters presented by the crown or the charge of the court. Certainly the
common law grand jury in England was not so limited. This readily appears from
the form of oath administered, under which it could investigate and act upon
matters which might come properly before it through such knowledge of any of
its members as was based upon their own observations or evidence, but not on
mere rumor or reports. A grand jury thus constituted functioned in this manner in
England without any substantial change for several hundred years prior to the
adoption of our constitution. No other kind of grand jury was known."
62 R.I. at 203.
The Supreme Court of Rhode Island further stated:
"[W]e must keep in mind the fact . . . that every grand jury under common law
had the power to investigate all kinds of indictable crimes committed in its
county and not merely into certain kinds of such crimes or only those called to its
attention by a prosecuting attorney or the court. Such broad powers were inherent
in the nature of every grand jury at common law and, therefore, in our opinion, it
follows that 'a grand jury' within the meaning of that term. . . . must have the
same full powers as a common law grand jury."
Even though there has been legitimate criticism of the grand jury system throughout the
history of the United States, it has withstood the test of time. Although Grand Juries are the
exception rather than the rule in Kansas, they have continued to be used on various occasions
throughout the history of Kansas. Just as it did in colonial times, the Grand Jury continues to
give representatives of the community a voice in deciding who should and should not be
prosecuted for a violation of our criminal laws.
B. History of Grand Juries in Kansas.
"In Kansas, a grand jury is a creature of statute and not of the constitution. Its function is
investigatory and accusatory in contrast to a petit jury, which determines the guilt or innocence
of an accused." (Emphasis added.) State v. Snodgrass, 267 Kan. 185, 190, 979 P.2d 664 (1999).
The primary role of a grand jury in Kansas "is to inquire into crimes cognizable by it and, upon
the concurrence of 12 or more jurors, an indictment may be found and presented to the district
court for filing." 267 Kan. at Syl. 1. "Absent a showing to the contrary, the district court must
presume that a grand jury was properly impaneled and properly performed its duties." 267 Kan.
at Syl. 2.
"Historically, the grand jury functioned primarily as a protection against arbitrary
prosecution by the State:
'It frequently stood as a barrier against royal persecution, until at length it was
regarded as an institution that secured the King's subjects against the oppression
of unfounded prosecutions by the Crown. Although that reason may not have
been the motivating factor in this country, the fact remains that the grand jury
system was adopted here and for considerations quite similar to those of the
mother country. Our adoption of the system was founded on the theory not only
of bringing wrongdoers to justice, but also of providing protection against
unfounded and unreal accusations, whether these had their origin in
governmental sources or were founded on private passion or enmity.' 38 Am.
Jur. 2d Grand Jury § 2, pp 947-98."
267 Kan. at 193.
In Snodgrass, The Kansas Supreme Court found that "the fundamental purpose of a
grand jury 'is to obtain a group of men and women who represent a fair and impartial cross
section of citizens of the county, each with his or her own individual thoughts, experiences, and
reactions.''' 267 Kan. at 195 (quoting 38 Am.Jur. 2d Grand Jury § 4, pp.948-49). Furthermore,
"a grand jury has the right and obligation to act on its own information, however acquired" and
"the oath required to be taken by grand jurors . . . requires them to inquire diligently into the
commission of crimes. . . ." 267 Kan. at 195 (quoting 38 Am. Jur. 2d Grand Jury § 7, pp. 951-
52). Thus, as representatives of the citizens, Grand Juries in Kansas possess comprehensive
"investigatory and accusatory" powers.
The Kansas Legislature provides three (3) procedural options for the commencement of
criminal prosecutions. A criminal prosecution may be commenced in Kansas by the filing of a
Complaint, an Information or an Indictment. (K.S.A. 22-3201.) The vast majority of criminal
cases in this case are commenced by the filing of a Complaint or Information. In such cases,
only one person - the prosecutor - decides whether criminal charges should be filed. Likewise,
in such cases, only one person - a magistrate or judge - conducts a Preliminary Hearing to
determine whether a person should stand trial for an alleged criminal violation. However, under
the Grand Jury option, twelve (12) or more representatives of the community must agree before
an Indictment may be returned. (K.S.A. 22-3011.) Thus, whether the Grand Jury process
provides more or less protection to an accused person continues to be the subject of legitimate
C. Whether the Current Grand Jury Was Properly Convened.
The Kansas Legislature has provided the mechanism for convening a Grand Jury in
K.S.A. 22-3001. Although the mechanism has changed several times throughout the history of
Kansas, the current statute provides two (2) ways in which a Grand Jury may be convened.
First, K.S.A. 22-3001(1) provides that "[a] majority of the district judges in any judicial district
may order a grand jury to be summoned in any county . . . when it is determined to be in the
public interest." Second, K.S.A. 22-3001(2) provides that "[a] grand jury shall be summoned in
any county within 60 days after a petition praying therefore is presented in the district court,
bearing the signatures of a number of electors equal to 100% plus 2% of the total number of
votes cast for governor in the county in the last preceding election."
As indicated above, the Grand Jury which presented the Indictment against the
Defendant in this case was convened as the result of the presentment of a Petition filed by more
than 1,468 Shawnee County electors. Upon reviewing the Petition, all 14 Judges of the District
Court of Shawnee County, Kansas, agreed that it should be accepted and that a grand jury
should be summoned. Although the words used by the Petitioners were not identical to the
language set forth in K.S.A. 22-3001(2), the District Court Judges found that the Petition
"substantially" complied with the statutory requirements.
K.S.A. 22-3001(2) provides that such a Petition "shall be in substantially the following
The undersigned qualified electors of the county of and the state of
Kansas hereby request that the district court of county, Kansas,
within 60 days after the filing of this petition, cause a grand jury to be summoned
in the county to investigate alleged violations of law and to perform such other
duties as may be authorized by law."
If a Petition is found to "substantially" comply with this statutory language and it bears
the required number of signatures of electors, "a grand jury shall be ordered to be summoned."
(K.S.A. 22-3001(2).) The Petition in question specifically includes 58 of the 59 words set forth
in the statutory form. The only word that is missing is the word "other" in the last line. While
the statute uses the words "and to perform such other duties as may be authorized by law," the
Petition uses the words "and to perform such duties as may be authorized by law." However,
the Court does not find the fact that "other" is missing to be a material or substantial change
from the statutory form.
Of more significance is the fact that the Petition contains the additional words: "Kansas
Statute 21-4301 Promoting Obscenity, possessed and sold at the following locations" and lists
four (4) area businesses which have now been indicted by the Grand Jury. Although there is no
doubt that the Petitioners were primarily concerned with convening a Grand Jury for the
purpose of seeking indictments for promoting obscenity against the identified businesses, the
question remains whether the differences between the language used by the Petitioners and the
statutory language render the Petition invalid. The answer to this question hinges on the
definition of the term "substantially" as used in K.S.A. 20-3001(1).
As the Kansas Supreme Court has found, "the term is relative and must be considered
within the context of the particular fact situation; in essence it means less than totally or the
whole. . . ." State of Kansas v. Rose, 234 Kan. 1044, 1049, 677 P.2d 1011 (1984). In Rose, the
Kansas Supreme Court noted that Black's Law Dictionary 1281 (5th ed. 1979) defines
"substantially" to mean "[e]ssentially; without material qualification; in the main; in substance;
materially; in substantial manner." 234 Kan. at 1049. In addition, the Court also
noted that "Webster’s New Collegiate Dictionary 1153 (1981) defines 'substantial' in part as
'being largely but not wholly that which is specified."' Id.
Reviewing K.S.A. 22-3001(2) in light of these definitions, it is apparent that the Kansas
Legislature used the term "substantially" since it did not intend to require strict compliance
with the statutory form. Rather, the Kansas Legislature intended to have District Court Judges
consider the "substance" of the Petition. Moreover, since Section 3 of the Kansas Bill of Rights
gives citizens the constitutional right "to petition the government," it is reasonable to conclude
that the Kansas Legislature did not intend for form to control over substance when a Petition to
convene a Grand Jury is submitted by a sufficient number of electors. Indeed, it is ironic that on
the one hand, the Defendant contends that the Kansas Grand Jury statutes infringe upon the
constitutional right of citizens "to petition the government," while at the same time he asks this
Court to simply disregard a Petition which was filed by more than 1,468 Shawnee County
From a review of the substance of the Petition, there can be no doubt that the Petitioners
sought to have a Grand Jury convened in Shawnee County. Although the Petitioners obviously
had specific targets which they wanted the Grand Jury to investigate, this does not render their
Petition invalid. Thus, the Court finds that it was appropriate for the Judges of the Shawnee
County District Court to find that the Petition "substantially" complied with the provisions of
K.S.A. 22-3001(2) and to have ordered that a Grand Jury be summoned.
D. The Scope of a Grand Jury's Jurisdiction and Powers in Kansas.
The Court next turns to the issue of whether the Indictment returned against the
Defendant in this case was within the scope of the Grand Jury's powers. It is well settled that
"the common practice [in the United States] is for the grand jury to investigate any alleged
crime, no matter how or by whom suggested to them, and after determining that the evidence
is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal
charge or indictment." (Emphasis added.) Frisbie v. United States, 157 U.S. 160, 163, 15 S.Ct.
586, 39 L.Ed. 657 (1895). "The grand jury as a powerful arm of the court has not been withered
by the legislature. In view of the broad purpose in ferreting out criminal conduct, we are
reluctant to wither that arm. . . ." (Emphasis added.) Southwestern Bell v. Miller, 2 Kan. App.
2d 558, 565, 583 P.2d 1042 (1978) (quoting with approval State ex rel. Pollard v. Marion
Crim. Ct., 263 Ind. 236, 247, 329 N.E. 2d 573 (1975))
The Kansas Supreme Court has recognized:
"We get our common law from England. It dates back to the fourth year of the
reign of James the First, or 1607, when the first English settlement was founded
in Jamestown, Virginia. The body of laws of England as they then existed now
constitute our common law. It is so fixed by statute in this state, (G.S. 1868, Ch.
119, § 3; K.S.A. 77-109.) and is generally so fixed by statute or by judicial
decisions in the other states. (Kansas Pacific Rly. Co. V. Nichols, Kennedy & Co.,
9 Kan. 235, 252. See also, Clark v. Allaman, 71 Kan. 206, 80 Pac. 571; 15A
C.J.S., Common Law, §1c, p.42.)"
It is also important to recognize that, K.S.A. 77-109 provides that the common law
continues to "remain in force" unless it is modified by the constitution, statutory law or judicial
decisions. In Clark v. Allaman, 71 Kan. 206, 80 P. 571 (1905), Justice Rousseau A. Burch
described the development of the common law from the time of the Louisiana Purchase to the
admission of Kansas into the Union. He reasoned that since "the authority
of the common law was prevalent throughout the confines of the state under every civilized
form of governmental organization from the earliest times . . . such constant adherence to its
principles could not have been occasioned by accident, or by indifference, but must have been
the natural result of a deep-seated conviction of its complete efficiency as a means of justice."
71 Kan. at 222. Thus, "the legislature enacted the statute of 1868 [the predecessor of K.S.A. 77-
109] continuing in force the common law only as modified by constitutional and statutory law,
judicial decisions, and the condition and wants of the people." 71 Kan. at 230. See also State v.
Criqui, 105 Kan. 716,719, 185 P. 1063 (1919).
This Court has reviewed numerous authorities, including those cited by the Defendant,
but finds nothing which indicates that the Kansas Legislature intended to weaken the broad
scope of powers and independence granted to Grand Jurors at common law. If the common law
is to be changed or modified, it falls within the power and authority of the Kansas Legislature
to do so in such a way which is in the public interest. See Board of County Commissioners of
Neeosho County v. Central Air Conditioning Co., Inc., 235 Kan. 977, 683 P.2d 1282 (1984).
Thus, except to the extent that the Kansas Legislature decides that it is in the public interest to
modify the traditional independence and powers of Grand Juries known at common law, a
Grand Jury in Kansas continue to possess such independence and powers.
Although the statutes governing grand juries in Kansas do not specifically set forth the
scope of the Grand Jury’s jurisdiction and powers, the historic oaths required to be
administered to Grand Jurors pursuant to K.S.A. 22-3003 are consistent with the scope of the
powers possessed by Grand Juries at common law. Specifically, Kansas law requires the
Presiding Grand Juror to swear that he or she "shall diligently inquire, and true presentment
make, of all public offenses against the laws of this state cognizable by this court, committed
or triable within this county, of which you have or can obtain legal evidence." (Emphasis
added.) Similarly, Kansas law requires the other Grand Jurors to swear that they will also abide
by the oath which was sworn to by the Presiding Grand Juror. Thus, regardless of which
statutory procedure is used to convene a Grand Jury, all Grand Jurors in Kansas continue to
take a solemn oath to "diligently inquire . . . of all public offenses against the laws of this state"
which occurred or are triable in the county in which the Grand Jury is convened.
Furthermore, K.S.A. 22-3005(1) requires the Presiding Judge to charge the Grand Jurors
and to provide "such information as he deems proper and as is required by law, as to their
duties, and as to any charges of crimes known to the court and likely to come before the
grand jury." (Emphasis added.) As such, it is apparent that the Kansas Legislature did not
intend that to restrict the investigatory powers of a Grand Jury or to create Special
Purpose/Inquiry Grand Juries to investigate only the specific criminal violations alleged in a
Petition filed by the required number of electors. Rather, the language used in K.S.A. 22-
3005(1) is consistent with the common law as well as the historic oath set forth in K.S.A. 22-
3003 since it anticipates that Grand Jurors may investigate other alleged criminal violations
which are not yet known to the Court at the time the Grand Jury is impaneled. As the United
States Supreme Court held in United States v. R. Enterprises, Inc., 498 U.S. 292 (1991): "The
identity of the offender, and the precise nature of the offense, if there be one, normally are
developed at the conclusion of the grand jury's labors, not at the beginning." Blair v. United
States, 250 U.S. 273, 282, 63 L. Ed. 979, 39 S. Ct. 468 (1919).
Finally, the Court finds the words written by the Honorable Michael B. Barbara in
Kansas Criminal Law, (Third Edition) §8.8, pp. 8-3 to 8-4, to be persuasive regarding the scope
of a Grand Jury's investigatory and accusatory powers in this state. In a section entitled the
"Functions of the Grand Jury," Judge Barbara writes:
"The [United States] Supreme Court described the function of the grand jury as
that of protecting the innocent and of determining probable cause when the
evidence so warrants. Branzburg v. Hayes, 408 U.S. 665 (1972). Another
purpose, utilized in Kansas, is to investigate matters of public concern and issue
reports of its findings (e.g. county jail conditions). The grand jury has the right to
production of witnesses and documents, question witnesses and request legal
advice from the judge and the prosecutor. It may broaden or extend the scope of
investigation over its original charge by the court." (Emphasis added.)
Thus, the Court finds that the Grand Jury which is currently impaneled had the authority
to broaden or extend the scope of its investigation to any criminal violation committed or
triable in Shawnee County, Kansas.
E. Independent Powers of Grand Juries in Kansas.
The Kansas Legislature's intent to preserve the independent powers of a Grand Jury
known at common law is also highlighted by the statutory language found in K.S.A. 22-3001 et
seq. For example, a Grand Jury is permitted to terminate its service at any time simply by
advising the court in writing that it has completed its investigation. K.S.A. 22-3013(1). In
addition, a Grand Jury is authorized to "employ special counsel, investigators, and incur such
other expense for services and supplies as it and the court may deem necessary." K.S.A. 22-
3006(3). A Grand Jury also has the power to require the Clerk of the District Court to "issue
subpoenas and other process to bring witnesses to testify before the grand jury." K.S.A. 22-
A Grand Jury has the option of commanding the prosecuting attorney to attend its
sessions to assist in the examination of witnesses and/or to provide legal advice pursuant to
K.S.A. 22-3007(1). However, if the Grand Jury does not wish to use the prosecutor in this
capacity, it has the option to retain "special counsel" to provide independent legal advice as
indicated above. Of course, it is also important to recognize that the Kansas Legislature has
specifically given the prosecuting attorney the right to appear before the Grand Jurors "for the
purpose of giving information relative to any matter cognizable by the grand jury. . . ." K.S.A.
22-3007(2). Thus, although the amount of independence which will actually be exercised varies
from Grand Jury to Grand Jury, it is ultimately the Grand Jurors who have the authority to
decide whether or not to issue an Indictment.
F. Cases From Other Jurisdictions.
The Defendant cites the Court to cases from various jurisdictions including New
Mexico, Montana, Pennsylvania, New York, Maryland and West Virginia. Although the Court
does not believe it is necessary to look to the law of other states to decide the issues presented,
it has reviewed each of the cases cited by the Defendant as well as the constitutional and/or
statutory governing Grand Juries in each of these states. After doing so, the Court does not find
the laws of these other jurisdictions to be supportive of the Defendant’s position regarding
either the convening of the Grand Jury or the scope of a Grand Jury's powers.
Unlike Kansas, the New Mexico Legislature amended its Grand Jury statute in 1993 to
state that a "district judge convening a grand jury shall charge it with its duties and direct it as
to any special inquiry into violations of law that he wishes it to make." (Emphasis added.)
N.M. Stat. Ann. 31-6-9 (2006). The amended statute authorizes the district court to "limit the
grand jury's investigation to those specific incidents identified in the petition." District Court v.
McKenna, 118 N.M. 402, 406, 881 P.2d 1387 (1994). However, prior to amending the New
Mexico statute, the inquiry of a Grand Jury could not be limited by a district judge even where
the voters petitioned for Grand Jurors to investigate a particular crime. See State ex rel.
Deschamps v. Kase, 114 N.M. 38, 834 P.2d 415 (1992). Thus, if the Kansas Legislature desires
to limit the broad investigatory powers possessed by grand juries at common law as the New
Mexico Legislature has done, it has the right to do so.
Montana law is also substantially different from Kansas law. Article II, Section 20 of the
Montana Constitution specifically provides that a grand jury may be convened "only at the
discretion and order of the district judge." For a brief period of time, Kansas had a statute
which provided that grand juries could only be convened by order of the district court. See G.S.
1868, ch. 82, sections 66 and 73. However, since 1887, Kansas has permitted grand juries to be
convened upon the presentation of a Petition by taxpayers or electors. See Laws of 1887, ch.
167. In fact, for many years, the only way a grand jury could be convened in Kansas was upon
the presentation of a Petition. See Laws of 1901, ch. 235. Interestingly, the Defendant has cited
In re Secret Grand Jury Inquiry (Doe), 170 Mont. 354, 553 P.2d 987 (1976), in which the
Montana Supreme Court found that there is "a grave need for a grand jury which may conduct
an unfettered and uninterrupted investigation." 170 Mont. at 367.
In addition, the Defendant cites the Court to a Pennsylvania case in support of his
position that the scope of a grand jury's inquiry into criminal activities should be restricted. It
should be recognized, however, that Pennsylvania law provides little (if any) guidance on the
issues presented in this case since Article 1, Section 10 of the Pennsylvania Constitution
abolished "the regular, or indicting grand jury" in 1973. See 1 Pennsylvania Law Encyclopedia,
Courts 251. Unlike Kansas, the grand jury process in Pennsylvania is "strictly regulated" and
bears little resemblance to the grand jury system know at common law since it has no power to
indict. See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 356 (3rd Cir. 2003).
Grand Juries in Pennsylvania can simply recommend to a prosecutor that a person be
charged with the commission of a crime. See Commonwealth v. Slick, 432 Pa. Super. 563, 639
A.2d 482 (1994). Moreover, in Pennsylvania, a Grand Jury "is judicially supervised from its
inception contrary to the practice in most jurisdictions, and is strictly regulated in the scope of
its inquiry." (Emphasis added.) 432 Pa. Super. at 571. Thus, unlike Kansas, all of the decisions
regarding prosecution of crimes in Pennsylvania are "vested solely" with the District Attorney.
432 Pa. Super. at 571 and 578.
In New York, "indictment by a grand jury" is a constitutional right. See Article I,
Section 6 of the New York Constitution. "In order to further the safeguards of indictment by
Grand Jury and to enable that body to fulfill its functions, the Grand Jury is accorded broad
investigative powers." People v. Lancaster, 69 N.Y.2d 20, 25, 503 N.E.2d 990 (1986). "To
fulfill its investigatory function, the Grand Jury possesses broad powers whose scope cannot be
limited." Rodriquez v. Mongenthan, 121 Misc.2d 694, 695, 468 N.Y.S.2d 833 (1983).
Moreover, even the case cited by the Defendant recognizes that "insofar as its jurisdiction is
concerned, the Grand Jury is an independent body [and] 'it follows that it could not be curtailed
by a court order unless such order is made pursuant to a clearly drawn statute explicitly limiting
it.'" Kuriansky v. Seewald, 148 A.2d 238, 241, 544 N.Y.S.2d 336 (1989)(quoting People v.
Stern, 3 N.Y.2d 658, 662, 148 N.E.2d 400 (1958)).
Although the Defendant cites cases from Maryland and West Virginia which he
contends support his argument that the secrecy requirements found in K.S.A. 22-3012,
"preclude a citizen from taking his grievance to a grand jury," both of these states have secrecy
requirements similar to Kansas. In Maryland, all grand jurors must take an "oath of secrecy"
upon being selected to serve. See Md. Courts and Judicial Proceedings Code Ann. § 8-213
(2006). Similarly, the West Virginia Supreme Court has held that "Grand juries' inner-workings
are kept secret 'to inspire the jurors with a confidence of security in the discharge of their
responsible duties, so that they may deliberate and decide without apprehension of any
detriment from the accused or any other person.'" State of West Virginia v. Barnhart, 211
W.Va. 155, 159, 563 S.E.2d 820 (2002).
As this Court stated in its Protective Order entered in Case No. 06-GJ-1 on June 7, 2006,
the United States Supreme Court has held that "the proper functioning of our grand jury system
depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 218 (1979). Some of the vital interests which are protected by the
requirement of secrecy include preserving the willingness and candor of witnesses called
before the Grand Jury; not alerting the target of an investigation who might otherwise flee,
intimidate witnesses and/or harass the Grand Jurors; and, preserving the rights of a citizen who
is exonerated by the Grand Jury. 441 U.S. at 219. Thus, in order to protect the integrity of the
grand jury system, courts "have consistently stood ready to defend [grand jury secrecy] against
unwarranted intrusion." United States v. Sell Engineering, Inc., 463 U.S. 418, 425 (1983)
(citing Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 572-573 (1983)).