fully come into possession of facts, the disclosure of which would have a tendency to defeat or obstruct that purpose. Thus it was said by Thacher, J.: "It would certainly be a great breach of duty for a grand juror, while the inquest was in session, to disclose the business of that body, by means whereof persons accused and not yet arrested, might make their escape or take other measures to defeat the course of public justice. Indeed, in a certain state of case, a grand juror might thereby render himself liable to a criminal charge as an accessory after the fact, in the commission of a crime." The last sentence of this quotation might become as clearly applicable to an attendant upon the grand jury, or to the judge or clerk knowing of an indictment before arrest, or to an eavesdropper upon the deliberations of the grand jury. These voluntary disclosures might also become the subject of a proceeding for contempt of court, on the theory that, the law requiring secrecy, it becomes an interference with the duty and function of the court to preserve the same. It is certain that a grand juror would be in contempt of court and it would seem that the basis of proceedings for contempt should not rest merely upon the violation of his oath. It has been ruled, however, that the obligation of secrecy is imposed as well upon the clerk of a grand jury,65 though he be not a member and upon the state's officer authorized to attend upon their sessions to examine witnesses.66

§ 2842. Same. Duration of Pledge of.-As to how long the pledge of secrecy continues to exist depends upon the view of the policy of the law in imposing it at all, and with respect to what a disclosure refers to. Mr. Wigmore has reasoned that secrecy is imposed both as a matter for the benefit of the state and as affording a testimonial privilege. If the entire policy be that disclosure should be forbidden because knowledge might prevent arrest, it is obvious that the pledge would be of short duration, but so narrow a view has not greatly obtained. Courts have thought there

67

64 Sands v. Robinson, supra.

65 1 Greenl. on Ev. § 252.

66 In Michigan it was held that this rule prevents such an officer from stipulating for the purpose of facilitating what the testimony of defendant, prosecuted for perjury, was before the grand jury. People v. Thompson (Mich.), 81 N. W. 344.

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See also Stewart v. St., 24 Ind. 142; Kingsbury v. St. (Tex. Cr. R.), 39 S. W. 365 (not reported in state reports); St. v. Smith, 74 Iowa, 584, 38 N. W. 492; Jones v. St., 81 Ala. 79, 1 South. 32; U. S. v. Brown, 1 Sawy. 531.

67 4 Wigm. on Ev. §§ 2360-2362.

are more reasons of public policy than this for the continued observance of the obligation, but with respect to the disclosure of testimony, or of any other matter occurring in the grand jury room. Judge Bigelow said: "The reasons on which the sanction of secrecy, which the common law gives to proceedings before the grand jury are three-fold. One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made." es But it may well be supposed that state policy would go further still and that this summary is to be taken solely as to disclosure of testimony before the grand jury, and not to "the state's counsel and their fellows," as to which secrecy is also enjoined. It is apparent too that only the first might have a lasting effect, while all exigency would have terminated, in a particular case, so far as the second reason is concerned when the case has ended, or upon arrest, so far as the last reason is concerned. But if the policy of the law is to protect prosecutors as to disclosure of offenses there ought also to be a policy for the protection of grand jurors. Indeed, as we have seen from the Earl of Shaftesbury's case, the common law conception was that secrecy in behalf of grand jurors was absolutely inviolable, while that as to testimony was not so regarded. It may, however, be refining very closely to say that either the first reason stated by Judge Bigelow or the like reason suggested here as to grand jurors goes any further than the conferring of testimonial privilege after the necessity of secrecy, so far as the other reasons are concerned, has passed, unless in making disclosure another party than one making same might be affected. This might not be easily

68 Com. v. Mead, 12 Gray, 167. 69 Ala. Code 1897, § 4805; Fla. Rev. St. 1892, § 2814; Ind. Rev. St. 1897, § 1754; Iowa Code 1897(8), § 5268; Kan. Gen. St. 1897, ch. 102, §§ 110, 111; Ky. C. Cr. P. 1895, § 113; Mich. Comp. L. 1897, § 11887; Minn. Gen. St. 1894, § 7216; Mo. Rev. St. 1899, § 2506; N. M. Comp. L. 1897,

§ 988; N. Y. C. Cr. P. 1881, § 266; Tenn. Code 1896, § 7043; Tex. C. Cr. P. 1895, § 404; Wis. Stats. 1898, § 2555; Cal. P. C. § 926; Mont. P. C. 1895, § 1789; Nev. Gen. St. 1885, § 4095; Or. Anno. C. 1892, § 1257; S. D. Stats. 1899, §§ 8842, 8843; Utah Rev. St. 1898, § 4721.

done so far as a grand juror's disclosure of his opinion or vote is concerned. Indirectly or by process of elimination this could amount to a disclosure of the opinions and votes of his fellows, and if the law's policy is to take away all fear of disclosure of opinions and votes, it would seem that every disclosure, whether direct or indirect, is forbidden and at any time, near or remote. Little if any authority is obtainable upon the question of a voluntary disclosure of votes and opinions. It is patent there ought not to be such until a party has been apprehended and it seems clear that if grand jurors are entitled to freedom from apprehension on this subject a disclosure in part ought not to be left to discretion of any member of the body. The whole matter ought to be a sealed book unless public justice requires an exception to the rule.

§ 2843. Same. Statutes on this Subject.-Added to the ancient form of the oath, which is administered to grand jurors, many statutory forms contain exceptions in reference to disclosure of testimony given before the body, when required in the course of judicial procedure, or there is a specific provision of law to such effect."" In some of these statutes this disclosure is limited to a trial for perjury of a witness who has testified before the grand jury, and in many it extends as well to a case of showing whether a witness' testimony "is consistent with or different from the evidence given by such witness before such court," as an examination of these statutes will show. In only one state does the exception extend alike to testimony, opinions and votes.70 In some states it is specifically provided outside of the statutory form of oath that grand jurors are not compellable to disclose opinions and votes," but such a statute is perhaps unnecessary, as what is stated as to disclosure of testimony is merely to provide for an exception to the rule against any disclosure. These statutes refer generally to competency of evidence and of grand jurors being compellable to disclose, but they leave us as much in doubt as to duration of the pledge of secrecy, so far as voluntary extra-judicial disclosure is concerned,

70 Idaho P. C. § 5293; Ga. Code 1895, § 5198. In Louisiana it is provided that the vote of a sick or deceased member may be testified about after adjournment. La. Rev. L. 1897, § 2141.

71 Fla. Rev. St. 1892, § 2813; Ill. Rev. St. 1874, ch. 38, § 412; Kan.

Gen. St. 1897, § 112; Mass. Rev. L. 1902, ch. 218, § 13; Mich. Comp. L. 1897, § 11887; Mo. Rev. St. 1899, § 2507; Wash. C. & Stats. 1897, § 6820.

72 People v. Northey, 77 Cal. 618; People v. Naughton, 38 How. Pr. Rep. 430.

73

as was the case at common law. It has never been supposed at all, that a witness called before a grand jury was by such incidental circumstance precluded from testifying before the court, and it does not for this reason seem altogether clear why the policy of secrecy should be enforced as being relief from apprehension on the part of witnesses that their testimony would be afterwards disclosed. There arises quite a violent presumption, where they are called to testify after indictment found, that they testified before the grand jury as they testified before the court, and their greater apprehension would be in not having their testimony on both occasions consistent. Judge Ruffin arguing from a common-law standpoint, thought the consequence of a doctrine of preventing grand jurors from disclosing, when called by a court, the testimony of witnesses "would be alarming" as tempting witnesses to commit perjury without the fear of punishment and, therefore, as both a lessening of the credibility of testimony before the jury, and exposing citizens to arbitrary accusations and arrests. Certainly the law ought not to have any policy tending to the screening of perjury, but this question is so generally concluded by express statutory provision, that its old common law importance has been ended. Judge Ruffin reasoned, however, that so far as voluntary extra-judicial disclosure is concerned, or compulsory disclosure as regards opinions and votes, there exists no time or occasion for such to be made, principally because this might "impair that perfect freedom from external bias which a grand juror ought to feel." Specific provision for exception under stated circumstances presumes a general continuousness of the pledge of secrecy.

§ 2844. Same. Testimonial privilege. The question of testimonial privilege claimed because of the oath or requirement of secrecy is not directly on the line of this article, but it is at least somewhat related thereto, and its treatment appears proper in this place. This pledge or requirement has a two-fold aspect-one as concealment tends directly to the prevention of abortive results in attempted detection of crime in securing the presence of an accused and his unobstructed prosecution, and another as securing freedom and impartiality in the performance of their general duty by grand jurors. Certainly there ought not to be any testimonial privilege under the former view, and the ordinary exception we have adverted to in the next preceding section so indi

73 4 Wigm. on Ev. § 2360, p. 3312. 74 St. v. Broughton, 7 Ired. 96.

cates. But is there a mere testimonial privilege than can be waived by a grand juror called to testify as to those other things around which there is thrown the veil of secrecy? If the suggestion made ante 2842 with respect to voluntary extra-judicial disclosures is sound, it is difficult to see how there is a waivable privilege at all because there is a tendency by one waiver toward disclosure, not consented to of another thing, and that other thing may only be, practically, of a vote or opinion, as our statutes generally provide for disclosure of testimony. Therefore, the condition of proper disclosure would be a waiver by each and every member of a grand jury. It is hardly to be thought that a matter of that sort should be canvassed by a court. But this question is also foreclosed by some of our statutes and almost every statutory form of oath reads "shall" and there seems no very persuasive argument for its being construed as "may." In Florida specific provision says he is "not allowed." In Georgia communications between grand jurors are excluded." In Illinois the statute reads "must," except a grand juror may be questioned as to a communication by him or his vote. where he is charged with perjury."

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§ 2845. Bringing Matters to the Attention of a Grand Jury.The ancient form of the grand jury oath (that employed in Bracton's time) required of them to "truly inquire, and due presentment make, of all such matters as you are charged withall on the Queen's behalf" etc.78 Considering this oath as their commission it is to be noted, that it omits that feature in the present day oath which obligates the jury similarly as to things which may "otherwise come to your knowledge." But notwithstanding the seeming limitation in the ancient oath, the practice at common law was not so restrictive, nor has any such restriction been considered to apply in this country where no statutory form of oath has been prescribed, as by federal statute and by statute in New Jersey, Pennsylvania, Maryland, Delaware, North Carolina, South Carolina, Louisiana and the Territory of Hawaii." They have the right to originate charges,80 and so it is likewise held in states where the

75 Fla. Kev. St. 1892, § 2813. See also Kan. Gen. St. 1897, ch. 102, § 112; Mass. Rev. L. 1902, ch. 218, § 13; Mo. Rev. Stat. 1899, § 2507; Ohio Rev. St. 1898, § 7205; Wash. C. & Stats. 1897, § 6820; Wyo. Rev. St. 1837, § 3234.

76 Ga. Code 1895, § 5198. 77 Ill. Code 1897, § 5269. 78 Book of Oaths (London, 1649) 206.

79 1 Whart. Cr. L. (7th Ed.) § 453. 80 Blaney v. St., 74 Md. 153, 21 Atl. 547; McCullough v. Com., 67