The opinion
Weintraub, C. J.
(concurring). When a grand jury surveys public buildings and institutions and reports its visual observations, for example, that a jail or hospital is overcrowded or undermanned, or that the premises need repairs or replacement, and recommends the appropriation of funds to meet the needs it observed, there is no appreciable problem. But when a grand jury embarks upon an investigation of crime and returns a presentment imputing blame to some *403 one, the situation is dramatically different. The grand jury then reports, not the product of its sensory observations, but rather findings based upon the testimony of others. I can think of no fact-finding procedure more hostile to the basic tenets of the judicial process than the procedure of a grand jury. It meets in secret; it conducts its hearings unilaterally; there is no opportunity in the individual affected to cross-examine witnesses against him or to produce evidence in his favor.
It is no palliative to have the assignment judge examine the secret record to see if the evidence warrants the aspersion. A record made in the manner I have described can never warrant a finding of a final character. We must remember that with respect to indictments for crime, the grand jury makes no finding of guilt. Its single role is to determine whether there is sufficient cause to justify a trial, and upon the trial the petit jury must be instructed that the indictment is no evidence whatever of the truth of the charge. The unilateral, secretive process of the grand jury is well calculated to sift charges and to determine which ones warrant trial. Indeed the grand jury was invented to protect the individual against the ordeal of a trial of an arbitrary charge. But when a process thus designed to protect the individual against an unfounded charge is converted into a final trial and results in the condemnation of an individual, the basic purpose of a grand jury is subverted and indeed by a procedure wholly unsuitable as a vehicle for that final decision. It does not matter that the individual is not jailed or fined on the basis of the report; public censure by an agency of the judiciary is punitive in any practical sense of the word. Nor am I impressed with the thought that public officers should accept such condemnation as the price of their public position. It is unfair to the officer. It is equally unfair to the public, for its confidence in its officials is shaken by a secret process which denies the public an opportunity to learn whether the condemnation accords with the ultimate truth.
*404 Hence I agree that the first two portions of the presentment should be suppressed. For the same reason, I would suppress the third portion as well. Insofar as the presentment states the members of the vice squad “were soon well known to the gambling fraternity and proved an uneffeetual means of combatting the gambling element,” I find nothing disturbing. But when the grand jury added that “Although their record was shameful, they were allowed to continue in the same capacity,” an assault was made upon an individual. Fairly read, it means that some individual with knowledge that “their record was shameful” continued the officers as members of the vice squad. That the word “shameful” might be understood to mean something beyond ineffectiveness simply heightens the condemnation, and that the individual who is the object of the broadside is unnamed merely aggravates the matter since the public may then identify the offender with individuals the grand jury did not have in mind. But wholly apart from the aggravating circumstances to which I have just referred, this portion of the presentment castigates an individual or individuals and should be suppressed. It would be something else if a grand jury, after reporting that it could not find evidence of crime, recommended the authorization of other detectional methods or an investigation by competent agencies of the problem of coping with organized gambling. That kind of a report would be consonant with the nature of grand jury proceedings, but the allocation of blame to an individual who has no forum to dispute the truth of the verdict is something I cannot reconcile with elementary fairness.
I have little difficulty with a report of conditions which the grand jurors themselves observe, as I said at the outset of this opinion. My trouble is with reports of “conditions” which a grand jury finds on the basis of testimony adduced before it. It is difficult to think of all possible reports of “conditions,” but I fear there will be few which will not simultaneously reflect upon some identifiable individuals. How can the judiciary strike a fair balance between the *405 public good a presentment may do and the public harm it inflicts by the inferential condemnation of an individual? I am not sure that a reconciliation is possible. The majority opinion holds that if the grand jury record, considered in the light of the proof the individual offers the court, does not conclusively support the imputation, the presentment shall be suppressed. It seems to me that when the individual offers any proof that the imputation is unwarranted, the presentment would probably fall, because it is unlikely that in such circumstances the grand jury testimony, untested by cross-examination, could be accepted as “conclusive.” Another possible approach would be a full-blown trial before a court at which the witnesses before the grand jury would be called. I agree that a trial would be an unwarranted burden upon all concerned. Perhaps it would do merely to permit the complaining individual to offer his sworn statement, to be filed with the presentment so that he who looks may read. Finally, it may be that, if there is no feasible solution, we should in such matters join the jurisdictions which hold that a grand jury should indict or be silent. In that connection I would also consider whether the power to present serves as an expedient to refrain from returning indictments which should be found. At the present, I have no confident answer. I think it unnecessary to give one since I believe the third portion of the presentment should be suppressed upon the face of it.
Jacobs and Hall, JJ., vote to reverse and remand but do not join in the court’s opinion which they believe may adversely affect the public interest by unduly restricting presentments.
For reversal on majority opinion—Justices Francis, Proctor, Schettino and Haneman—4.
For reversal on separate opinion—Chief Justice Weintratjb—1.
Concurring in the result—Justices Jacobs and Hall—2.