The opinion
Nolan, J.
(dissenting). I dissent. The court correctly acknowledges that the rule of secrecy imposed on proceedings of the grand jury is founded in two important principles: (1) the need to protect persons from notoriety if probable cause is not found and; (2) the need to shield the grand jury from any outside influences, “which may distort their function to investigate and accuse.” The trouble with the opinion lies in its abject failure to demonstrate that either principle has been violated in this case.
This failure, perhaps, explains why the court today made three references to the case of Commonwealth v. Favulli, 352 Mass. 96 (1967) (the most recent case of actual controversy on this subject decided by this court), and in each reference cited only to the dissent and never to the decision of the majority which found nothing constitutionally irregular in the simultaneous presence, on two occasions, of six prosecutors in the grand jury room. Id. at 106 . At least one of these prosecutors had earlier interviewed a witness who was interrogated by the grand jury while that prosecutor was present. The court said, “The presence of a particular person who has previously interviewed a witness *78 being interrogated may tend to hold the witness to his previous testimony. That is always the possibility if the prosecutor present is the one who has interviewed the witness in the course of the investigation. There is no intimidation involved in this.” Id. at 107 .
The court’s reliance on Commonwealth v. Harris, 231 Mass. 584 (1919), is regrettable because there the defendant’s plea in abatement and proof demonstrated that the persons present were not authorized. Here, Trooper Brien was not an interloper, but a person authorized by the judge to be present as a security measure.
The laudable rule of secrecy is relative, not absolute. The judge found that the defendants were advised of their right to remain silent before the grand jury and of their right to counsel in accordance with G. L. c. 277, § 14A. He ruled that they voluntarily and knowingly waived those rights. The judge also found that Trooper Brien, after taking an oath to preserve the secrecy of the grand jury, was ordered to be present for security purposes. He found and ruled that his presence had no adverse influence on Ferrara or on the grand jury. We should not disturb such findings.