Commonwealth v. McCloskey

Concurring and Dissenting Opinion by

Mr. Justice Eagbn :

I agree with the conclusion of the majority that the denial of a preliminary hearing to the individuals and corporations indicted in this case violated neither the Pennsylvania Rules of Criminal Procedure nor constitutional due process. However, I strongly disagree with the majority’s ruling that an individual who is compelled to appear and testify before a grand jury may constitutionally be denied the opportunity of consulting with his legal counsel outside the grand jury room during his testimony. I agree completely with Judge Spaeth in the court of original jurisdiction that such a denial violates the individual’s rights guaranteed by the Fifth and Sixth Amendments.

A person accused of crime must be afforded the assistance of counsel during every “critical stage” in the prosecution process. Admittedly a witness before a grand jury is not an “accused” in a technical sense. However, the law should consider the realities of the *149 situation and a reading of the limited record before us is convincing to me that the individuals here involved were “accused” in a very real sense when they testified before the grand jury. Moreover, they were at least potentially defendants; their testimony was compelled and eventually they were indicted at least in part on what they themselves were compelled to disclose. Under such circumstances, they were entitled to the minimum protection of having the opportunity of consultation with counsel before answering any questions.

Additionally, a witness before a grand jury need not answer any incriminating questions. Resolution of the scope of the privilege against self incrimination and the applicability of the waiver doctrine on a question-by-question basis frequently presents a difficult problem. I cannot see how an untrained layman can be expected to possibly discern whether or not an answer to a particular question will subject him to the danger of incrimination. To deny him the opportunity of adequate consultation with his counsel is to render his right under the Fifth Amendment meaningless.

Aside from every other consideration, fundamental fairness, which is the cornerstone of due process, mandates that the opportunity of such assistance be afforded. The secret proceeding before a grand jury is pregnant with the possibility of coercion, intimidation and overreaching. One commentator pointedly described the situation thusly: “A potential defendant who is brought before the Grand Jury without an attorney at his side is almost helpless. He is faced with a barrage of questions, often improper in the normal judicial setting, thrown at him by a group of reasonably intelligent citizens excited at the prospect of playing both lawyer and detective. This torrent of interrogation is, of course, directed by a skilled prosecutor capable of utilizing the Grand Jury as the tool to obtain incriminating evidence from the mouth of a nervous witness. The upset and *150 confused witness does not know whether to respond to the questions and risk having his answers used against him at a trial or claim the Fifth Amendment, creating suspicion in the eyes of the jurors and risking a contempt charge. In this atmosphere, the proceeding takes on the attributes of a Star Chamber. There is no comparable institution in our entire society which sanctions secret interrogation of a person ‘legally’ denied access to counsel.” Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 189 , 190 (1966).

Finally, an inconsistency in the reasoning of the majority opinion must be noted. On the one hand, the opinion states that if a witness were permitted to leave the grand jury room to consult with counsel this “would be a serious interruption and impair continuity in a grand jury investigation.” But in the next breath the opinion states that if a witness is confronted with a question which tends toward incrimination he may “come before the court and obtain a ruling as to whether or not he should answer the question.” Apparently, in the minds of the majority the last mentioned procedure would not constitute a “serious interruption” of the grand jury investigation.

In this connection may I also say that, while I agree that courts and their agencies should persistently strive towards the objective of increased efficiency, such efficiency should always be within legal limits and “should never be made the end goal of a system dealing with life and liberty.”

Mr. Justice Jones joins in this opinion.