Opinion

Cummiskey v. Superior Court

  • 3 Cal. 4th 1018
  • 13 Cal. Rptr. 2d 551
  • 92 Daily Journal DAR 15656
  • 839 P.2d 1059
  • 92 Cal. Daily Op. Serv. 9407
Court
California Supreme Court
Filed
Nov 23, 1992
Status
Published
Author
Mosk
On the bench
Lucas, Mosk, Kennard
Cited by
61 cases
Authority
More cited than 5.4%

trial court instructed grand jury that “an indictment should be found” when there is sufficient cause”

How later courts described this case

  • trial court instructed grand jury that “an indictment should be found” when there is sufficient cause”
  • conc. & dis. opn. of Kennard, J.

Written by the judges who cited it.

The opinion

MOSK, J., Concurring and Dissenting.

While I agree with Justice Kennard’s concurring and dissenting opinion in general, I am not convinced that the trial court should give substantial deference to the grand jury indictment when considering a motion under Penal Code section 995.

As pointed out in Hawkins v. Superior Court (1978) 22 Cal.3d 584 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ]—and indeed, in the facts of the instant case— genuine grand jury independence is largely a “fiction” (id. at p. 590). As a result we noted: “The problem of excessive prosecutorial influence is not solved by the availability of judicial review, for the same lack of objectivity, however inadvertent, which affects the grand jurors when they vote to indict infects the record for purposes of review. Excluded from the grand jury room, the defense has no opportunity to conduct the searching cross-examination necessary to reveal flaws in the testimony of prosecution witnesses or to expose dubious eyewitness identifications. This lack of defense participation in the development of the reviewable record creates a heavy bias in favor of a finding that the grand jury indictment was based on probable cause.” (Id. at p. 591, fn. omitted.)

Although a preliminary hearing as a means of double-checking on an indictment’s sufficiency is no longer a constitutional requirement, despite *1038 Hawkins , there is still no less need for an adequate review of the evidence that ultimately compels a defendant to submit to the travail of a criminal trial. That can only be accomplished by objective—not deferential—analysis by a trial judge.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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