State v. Gray

Or Const, Art I, §11, of the Oregon Constitution entitles Defendant to have his counsel present in the grand jury room during his testimony.

Defendant filed a writ of mandamus to decide on the issue if Defendant was entitled to have counsel present in the grand jury room during his testimony. The trial court denied this motion. Defendant argues that appearance before a grand jury is a “critical stage” of prosecution and therefore he is entitled to have counsel present. The State contends the proceedings are closed to all, other than certain individuals and are not adversarial. Article I, § 11, of the Oregon Constitution entitles Defendant to have counsel present in an advisory capacity in the grand jury room during his testimony. The Court reasoned that when Defendant was charged by information, criminal prosecution began. Defendant’s testimony is the equivalent to him testifying at trial because he is under oath and the testimony will be recorded and could be used against him. The opportunities for prejudice are present. A defendant who has already been charged and is testifying under oath, has the right to have counsel present for that testimony. The Court held Defendant is not entitled to have counsel conduct a direct examination of him or make formal evidentiary objections. A peremptory writ will issue.