APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL
DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF
LOUISIANA, DIRECTED TO THE HONORABLE J. STERLING SNOWDY,
DIVISION "C", NUMBER 19, 75
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Hans J. Liljeberg
GRANTED, ORDER VACATED, AND REMANDED FOR HEARING
case, relator, the State of Louisiana, seeks review of the
trial court's March 21, 2018 ex parte order
granting defendant's request that the grand jury
proceeding against him be recorded.
order, for the reasons discussed herein, is vacated and the
case is remanded to the trial court for a hearing. The State
was not given an opportunity to show the basis for its
position that the grand jury proceedings should not be
recorded in this case. This Court is of the opinion that
grand jury proceedings are presumed be recorded, and that the
State bears the burden of proving why recordation is not
necessary or possible to a preponderance of the evidence.
March 7, 2019, defendant, filed a Motion for Recordation of
the Proceedings of the Grand Jury Empaneled in March 2019 by
an Official Court Reporter. Upon consideration of the motion,
the trial court issued an ex parte order granting the
recordation of the grand jury proceedings by an official
court reporting. The State filed a writ application with this
court on March 22, 2019, asserting that the trial court
abused its discretion and/or prejudiced the State by
requiring the grand jury proceeding to be recorded. Facts
& Procedural History
February 14, 2019, a Fortieth Judicial District Juvenile
Court Judge found there was probable cause to hold the
defendant, a juvenile, for charges including second degree
murder. Accordingly, under La.Ch.C. art. 305, the matter was
transferred to the Fortieth Judicial District Court. The
State intends to proceed to Grand Jury to secure an
indictment against the defendant. On March 7, 2019,
defendant, filed a Motion for Recordation of the Proceedings
of the Grand Jury Empaneled in March 2019 by an Official
Court Reporter. The matter was set for a show cause hearing
on March 19, 2019, but vacated upon a change in divisions.
Judge Sterling Snowdy, issued an ex parte order granting the
recordation of the grand jury proceedings by an official
State filed a writ application on March 22, 2019, asserting
that the trial court abused its discretion and/or prejudiced
the State by requiring the grand jury proceeding to be
recorded. Arguing that the defendant's motion failed to
make a showing that recordation was necessary, the State
relies upon public policy considerations regarding the
importance of maintaining the secrecy of grand jury
proceedings. The State argued there is no constitutional
requirement that grand jury proceedings be transcribed and
La. C.Cr.P. art. 433 permits but does not require
recordation. Therefore, the State seeks a reversal of the
trial court's order or that the matter be set for a show
cause hearing to have the opportunity to respond.
responds that the legislature implicitly gives the court
authority to order recordation to carry out its duties and
responsibilities to grand jury proceedings. The defendant
argues that future in camera inspections and disclosures
would be impossible without recordation. He further argues
that the State will not suffer any prejudice from
issue before the court appears to be raised de novo. It is
this Court's opinion that there is a dearth of authority
directly on point as the two courts previously addressing the
issue cite no basis for the opinion or rely on a case which
does not address the issue before the court.
Legislative, and Case History
Louisiana Constitution grants exclusive original jurisdiction
of felony cases to the district courts. La. Const. Art. V,
§ 16 (A)(2). The courts have a duty to "control the
proceedings" so that justice is done while maintaining
dignity, order, and expedience. La. C.Cr.P. art. 17. While
the Code and criminal statutes do not specifically require
recordation, "the court may proceed in a manner
consistent with the spirit of the provisions of this Code and
other applicable statutory and constitutional provisions. La.
C.Cr.P. art 3.
Title XII Grand Jury, the Louisiana Code of Criminal
Procedure contains no language regarding what person or
entity has the authority to decide whether grand jury
proceedings are recorded and on what basis a request may be
granted. The Code does specify that the court has the
authority to direct the meetings of the grand jury. La.
C.Cr.P. art 435. The foreman of the grand jury is directed to
preside over hearings and determine rules of procedure. La.
C.Cr.P. art 436. The district attorney, as the representative
of the state, is to be the grand jury's legal advisor.
La. Const. Art. V, § 26(B). Therefore, the Code of
Criminal Procedure does not grant the State the authority to
control the manner in which the grand jury proceeds.
other appellate courts which faced this question fail to
provide a consistent standard for determining what the burden
of proving necessity of recordation is and who should carry
the burden. The State relies on In re Grand Jury
Proceedings, No. 52713 (La.App. 2 Cir. 02/14/19), in
which a writ was granted, vacating the trial court's
order requiring the proceedings of and testimony before the
grand jury to be recorded. The Second Circuit held that the
order was improper without the defendant "showing that
such recordation is necessary under the circumstances
presented in a particular defendant's case."
Id. The Second Circuit, without citing to authority,
makes a blanket assertion that there is "no support in
the law, statutory or jurisprudential, for a trial
judge's sua sponte order that all grand jury
proceedings be recorded." However, as discussed above,
both constitutional and statutory authority do indicate that
the court and the grand jury foreman, rather than the state,
control "the proceedings" and the procedural rules.
State v. Lavigne, 13-1414, 2013 WL 1212444 (La.App.
1 Cir. 9/10/13), the First Circuit denied a supervisory writ
where the trial court found the grand jury foreman had
authority to order recordation of the grand jury proceedings.
The court in this case opines that district attorneys and
trial courts, upon motion of the defendant "in certain
cases, " have the authority to order recordation. The
First Circuit cites to the Constitution and Code of Criminal
Procedure's grant of the "charge and control"
of prosecutions to the district attorney. La. Const. art V,
§ 26(B); La. C.Cr.P. art. 61. While they do cite to the
court's grant of power to control proceedings, they seem
to disregard the authority of the foreman of the grand jury
to preside over hearings and determine rules of procedure.
La. C.Cr.P. art 436. Furthermore, the First Circuit relies
upon State v. Lacaze, 2012-2131 (La. 6/17/13), 117
So.3d 915 (per curiam) to support the assertion that the
defendant must "indicate he will be greatly prejudiced
or that an injustice will be done if proceedings are not
recorded." However, that case addresses discovery of
already recorded grand jury testimony, not whether to record
the grand jury proceeding itself. Therefore, again, the First
Circuit opined without authority.
Louisiana Supreme Court has not addressed this issue on the
merits. In State v. Foster, 02-2918 (La. 10/3/03),
858 So.2d 1281 (per curiam), the Louisiana Supreme Court was
faced with the issue of whether a trial court had the
authority to order the recordation of the testimony before
the grand jury. However, it found the issue had been rendered
moot as the defendant had pled guilty and was sentenced.
Id. The court found that to consider the validity of
the trial court's order would essentially amount to an
advisory opinion since the issue was not properly before it.
Foster, 858 So.2d at 1281. However, Justice Victory,
dissenting, wrote that he would consider the issue under the
exception of the mootness doctrine as one "capable of
repetition yet evading review." Id.
appears that the Code of Criminal Procedure assumes that
grand jury proceedings will be recorded. La. C.Cr.P. article
843 requires the recording of "all of the
proceedings" in felony cases by clerk or court
stenographer. In specifying the persons who may be present
during grand jury sessions "a person sworn to record the
proceedings of and the testimony given" is listed as
well as the district attorney, attorney general, and
witnesses under examination in Louisiana Code of Criminal
Procedure article 433. In grand jury proceedings, "persons
employed to record and transcribe the testimony and
proceedings" are required to faithfully perform their
duties and keep secret the proceedings under oath. La.
C.Cr.P. Art. 441.
secrecy of grand jury proceedings should be carefully
maintained; however, this secrecy is not absolute. La. Const.
Art V § 34(A); State v. Ross, 13-175 (La.
03/25/14), 144 So.3d 932, 937; State v. Trosclair,
82-2014 (La. 11/28/83), 443 So.2d 1098, 1102. Circumstances
are set forth in Louisiana Code of Criminal Procedure
articles 434 under which disclosure of grand jury proceedings
is allowed. All persons with "confidential access to
information concerning grand jury proceedings" may
disclose testimony given before the grand jury to show
statutory irregularities or that a witness committed perjury.
La. C.Cr.P. Art. 434(A). Witnesses may discuss their grand
jury testimony with defense counsel, the attorney
general/district attorney, or with the court. Id.
Furthermore, district attorneys of one parish may direct
"any and all evidence, testimony, and
transcripts thereof" from the grand jury
proceeding to the district attorney of another parish if it
is discovered that a crime may have been committed in the
other parish. La. C.Cr.P. Art. 434(B)(emphasis added).
2012, Louisiana Legislature enacted Code of Criminal
Procedure Article 434.1, adding exceptions to grand jury
secrecy that allowed for disclosure of information,
documents, evidence, and statements by the State. For the
purposes of investigation and law enforcement, information
and documents may be disclosed to prosecutors, law
enforcement officers, investigations, and expert witnesses.
La. C.Cr.P. Art. 434.1(A). Further, the district attorney is
required to disclose favorable material evidence to the
defendant. La. C.Cr.P. Art. 434.1(B). Finally, the district
attorney may disclose inconsistent grand jury statements of
trial witnesses. La. C.Cr.P. Art. 434.1(C). Outside of these
exceptions, a party seeking ...