The Pennsylvania Senate Judiciary Committee is currently holding hearings to study possible changes to the Pennsylvania Grand Jury Statute. I contend that Section 4552 of the statute should be stricken for reasons discussed below.

Title 42 Pa C.S. Section 4552 of the grand jury statute which permits a grand jury to issue a report critical of the conduct of an individual, accusing him or her of incompetence or wrongdoing without recommending criminal charges, is a violation of Article I, Section 1 of the Pennsylvania Constitution, as it permits the issuance of a final judicial order damaging a person's reputation without the due process of law required by Article I, Section 11, of the Pennsylvania Constitution.

Article I, Section 1, of the Pennsylvania Constitutions provides, “All men are created equally free and independent, and have certain inherent and indefensible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

Article 1, Section 11 of the Pennsylvania Constitution provides, “All courts shall be open and every man for an injury done him in his land, good, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. …”

Title 42 Pa. C.S. Section 4541, et seq. created the Investigating Grand Jury. The grand jury act permits the grand jury to issue a presentment for criminal charges and a report which does not recommend criminal charges. A comparison of the two sections is instructive for the comparison of due process protections provided by the issuance of a presentment compared to the issuance of a report.

Section 4551 (a) authorizes the investigating grand jury to issue a presentment, recommending a person be charged with a criminal offense. Section 4551 (c) authorizes the attorney general or his designee to thereafter prosecute that persons on the charges listed in the presentment. The accused person is granted full use of the criminal procedure, including a preliminary hearing, pretrial motions, and a jury trial with the right to examine prosecution witnesses, present evidence in his or her own behalf, and, if convicted, a full right of appeal before an appellate court. Although the grand jury does not provide the accused with certain rights of confrontation and presentment of evidence, courts have held the right of a full trial and appeal following presentment satisfies due process.

A far different scenario is involved in the issuance of an investigative report. Section 4552 permits the grand jury to issue a critical investigative report naming individuals who the grand jury finds are involved in public corruption or organized crime. The grand jury may issue a report at any time, and have it presented to the supervising grand jury judge pursuant to Section 4552 (a). The judge examines the report, and if it is supported by a preponderance of the evidence, the judge may then order the report to be filed as a formal court document, pursuant to Section 4552 (b). If the supervising judge determines that the report is critical of an individual, the court, in its sole discretion, may permit the individual to file a response that will be docketed with the report, pursuant to Section 4552 (e). This procedure defines the total rights of a person so named in the report. This procedure is totally lacking in the due process of law required for the protection of a person's reputation as required by the Pennsylvania Constitution. There is no opportunity to present evidence, no opportunity to cross examine a witness, no required notice. The proceedings of the grand jury are secret, and are not available to the party so named, even if the person is given the chance to reply. This report becomes a formal court document for full public examination. Moreover, the flimsy statutory procedure contained in subsections 4552 (b) and (e) are simply a façade. I have been able to find only one instance when a supervising grand jury judge has refused to file a grand jury report. There is a question of how many supervising grand jury judges actually make an examination to determine if the report is supported by a preponderance of the evidence. I have been able to find only one instance when a supervising grand jury judge gave the subject person or institution permission to file a reply with the report. That occurred when attorneys for the Catholic Diocese of Philadelphia were negotiating with the district attorney regarding a final outcome of the investigation and convinced the supervising judge to permit them to file a response. Once the court accepts the report, it is docketed with the clerk of court for full public examination. It carries the weight of the final decision of a government body.

The grand jury should be confined to its original purpose—determining if there is probable cause to charge a person with a crime. It should not be a social commentator. Issuing such reports makes the grand jury the fourth branch of government, as it is not a part of the legislature, the judiciary, or the executive.

Moreover, the report differs from a presentment, in other ways than described above. In a presentment the grand jury hears evidence of the conduct of a person or persons involved in activity that may be criminal. The grand jury is given instructions as the elements of the criminal offense involved. The jurors vote whether the prosecutor has presented evidence that would indicate there is probable cause that the person or persons committed that crime. In grand jury reports, there are no recognized standards given to the grand jury to determine if the public official's conduct violates some ethical norm. In reality it is the prosecutor who submits some norm of morality or vague standard of conduct which the person named in the report never sees.

The Pennsylvania Constitution Article 1, Section 11, requires due process for any public report which damages a person's reputation. Reputation is a protected right under the Pennsylvania Constitution. Pa. Const. Art. 1 Sec. 1. Only a few state constitutions contain such a right. Pennsylvania courts have held that an individual's right to protect his or her reputation cannot be abridged without compliance with constitutional standards of due process, Hatchard v. Westinghouse Broadcasting, 532 A.2d 349 (Pa. 1987).

Publication of a report containing derogatory information about an individual causes damage, primarily in the form of reputational harm, see Simon v. Commonwealth, 659 A.2d 631 (Pa. Cmwlth. 1995) (public issuance of a report containing names and reported connections between organized crime and racketeering in the bingo industry causes damage to reputation); Pennsylvania Bar Association v. Commonwealth, 607 A.2d 850 (Pa. Cmwlth. 1992) (public issuance of a report containing names of attorneys representing claimants suspected of fraud posed a serious threat to the attorneys' reputation); Wolfe v. Beal, 384 A.2d 1187, 1189 (existence of government records containing information that might subject a party to negative stigmatization is a threat to that party's reputation).

Generally, due process requires “adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case,” as in J.P. v. Department of Human Services, 170 A.3d 575, 580 (Pa. Cmwlth. 2017).

In Pennsylvania Bar Association, the Pennsylvania Bar Association challenged the constitutionality of a statute requiring insurers to report the names of attorneys who represented claimants suspected of fraud. The court held the statute unconstitutional and noted that the statute's failure to require that attorneys be notified, prior to publication, was “disturbing.” The court held that notice is “necessary to both inform the interested parties of the pending action and to provide an opportunity to present objections.”

In Simon, petitioners contended that the Pennsylvania Crime Commission's report identifying them as connected to organized crime within the bingo industry, was issued without providing legally sufficient notice. The court noted that the commission's failure to require that petitioners be notified prior to publication and allow a public hearing only after the report was made public, was a clear violation of due process.

Likewise, in J.P., the court held that placement of a teacher's name on an alleged child abuse registry based solely on an investigator's determination was a violation of due process. The court noted that “'some form of hearing is required before an individual is finally deprived of a [protected] interest' because 'the right to be heard before being condemned to suffer grievous loss of any kind … is a principle basic to our society.”

The grand jury reporting statute clearly fails to provide individuals with the opportunity to be heard, and the chance to defend him or herself at a meaningful time and in a meaningful manner. This is a clear abrogation of state-protected rights without procedural due process.

Some members of the criminal defense bar have argued that a grand jury report permits a prosecutor to exercise his discretion to permit a person who is marginally involved in a criminal matter to avoid a criminal charge. In other words, they want to bargain with the prosecutor to allow the client to avoid prosecution in return for a negative grand jury report on the client's activities.

The prosecuting attorney always has the power to exercise leniency. All this proposal does is to encourage a prosecutor to include a person whose conduct is borderline criminal in the report with the agreement of the person's lawyer, to damage the reputation of that person. This is a sellout on the part of prosecutors and defense counsel. If a person should not be charged, the prosecutor should make that decision and not use an unconstitutional report as a bargaining chip.

Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at [email protected].