Philadelphia District Attorney Seth Williams told The Philadelphia Inquirer that most shooting prosecutions in the city are complicated by witness intimidation. Enabling witnesses to testify in secret before grand juries should help prosecutors counter that.
"This is very significant," Williams said.
The policy change reverses a 1976 decision abolishing indicting grand juries, saying they're unnecessary. As a result, prosecutors could use grand juries to return presentments, which are detailed reports that recommend charges be brought. But once those charges were filed, a preliminary hearing still had to be held—requiring witnesses to testify publicly—so a district judge could determine if probable cause existed for the charges to be tried in Common Pleas Court.
By contrast, charges filed through grand jury indictments go directly to trial.
The rule change, which takes effect in six months, doesn't give prosecutors unlimited discretion to use grand juries, however.
"It's limited in scope to situations where witness intimidation has occurred, is occurring or is likely to occur," said Daniel Fitzsimmons, the chief trial deputy for the Allegheny County district attorney's office. Fitzsimmons was a member of the Criminal Procedure Rules Committee, which recommended the Supreme Court ratify the change.
Under the new rule, prosecutors will have to petition the county's president judge for permission to empanel a grand jury and file a document giving probable cause that witness intimidation is a problem in a particular case, Fitzsimmons said.
Despite those limits, defense attorneys criticized the ruling, saying it prevents defendants and their attorneys from closely questioning and testing the reliability of prosecution witnesses. They also argued that, despite grand jury secrecy, people close to an investigation can still identify and intimidate potential witnesses.
"Do you think that there's anybody in a community where there is an investigation that doesn't know who testified before a grand jury?" said Jeffery Lindy, a Philadelphia defense attorney. "Everybody knows. It's not going to protect anybody."
Pittsburgh defense attorney James Ecker agrees and said grand juries are unfair.
"The problem I have with the new rule is the same problem I've always had with grand juries: A DA or a prosecutor can do whatever they want in a given case because there's no defendant there to protect themself, there's no lawyer there to protect the defendant," Ecker said.
Fitzsimmons contends the grand juries "certainly will be a very useful tool for prosecutors, especially in case of violent crimes."