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Office of Attorney General:
D.A. Authorized to Issue Grand Jury Subpoena at Any Time
Opinion Says It Doesn’t Matter if Members of Body Have Not Been Impaneled
By a MetNews Staff Writer
It’s no impediment to the issuance of a subpoena to testify before a grand jury that no panel has yet been formed, the Office of Attorney General has declared in an opinion.
Responding to an inquiry from El Dorado District Attorney Vern Pierson, Deputy Attorney General Susan Duncan Lee said in an opinion released Friday:
“[P]rosecutors may lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled. The prosecutor’s subpoena power and the court’s enforcement power exist regardless of whether the grand jury has been impaneled.”
Penal Code Section
She pointed to Penal Code §939.2 which says:
“A subpoena requiring the attendance of a witness before the grand jury may be signed and issued by the district attorney…for witnesses in the state, in support of the prosecution, for those witnesses whose testimony, in his opinion is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct.”
Lee wrote:
“Given that the language of section 939.2 contains no temporal limitation, it appears to allow prosecutors to issue criminal grand jury subpoenas at any time.”
1935 C.A. Opinion
She acknowledged that the Court of Appeal, in 1935, held in In re Peart, under the governing statute then in effect, that the consent of the Grand Jury is a requisite for issuance of a subpoena by a district attorney, but said:
“[T]he Penal Code was amended to grant district attorneys clear independent authority to subpoena ‘those witnesses whose testimony, in his [the district attorney’s] opinion is material in an investigation before the grand jury....’ ”
The deputy attorney general declared:
“[N]othing in the amended or current statute, or in any other statute, confines the prosecutor’s subpoena power as it exists post-Peart to periods when a criminal grand jury is impaneled. This is not surprising. If the prosecutor does not need a particular grand jury’s permission or approval to issue a subpoena in the first instance, there is no apparent utility or justification for requiring the prosecutor to wait until a particular grand jury is impaneled before issuing it. especially when doing so in advance will facilitate presenting matters to that grand jury once it is impaneled.”
The opinion is No. 23-401.
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