Arizona Court of Appeals Division One Holds That A Prosecutor Must Convey to the Grand Jury Some Detail Regarding the Defendant’s Proposed Testimony As Well As a Defendant’s Request to Testify.

Nadia Bashir’s four-year-old son drowned in the family swimming pool.  A criminal investigation followed, as part of which Ms. Bashir’s counsel sent a ten-page letter to the prosecutor detailing the family’s history; the son’s health conditions, development and schooling; and details from the incident that differed from those reported by law enforcement.  Ms. Bashir’s counsel attached to its letter numerous, supporting documents.  Shortly thereafter, defense counsel informed the prosecutor that Ms. Bashir wanted to testify if the case was presented to the grand jury, and requested that the State present the grand jury with the information contained in the ten-page letter and attachments.

When presenting the case to the grand jury, the prosecutor said only that Ms. Bashir had requested to testify,  making no mention of the information contained in the ten-page letter.  After some discussion, the foreperson informed the prosecutor that the majority of jurors elected not to hear Ms. Bashir’s testimony.  The grand jury then returned an indictment, charging Ms. Bashir with negligent homicide and negligent child abuse.

Ms. Bashir filed a motion to remand arguing, among other things, that by failing to provide even a simple outline of Ms. Bashir’s testimony, the State had precluded the grand jury from making an informed decision about whether to hear her testimony, in violation of the rule announced in Trebus v. Davis, 189 Ariz. 621, 944 P.2d 1235 (1997).  The trial court denied the motion, stating that Ms. Bashir had failed to show that the State’s presentation of the evidence was not fair and impartial.  Ms. Bashir moved for reconsideration on the sole ground that the State failed to convey to the grand jury any information about her proposed testimony.  The trial court denied this motion, as well. 

In Trebus v. Davis, id. at 621, 944 P.2d 1235, the Arizona Supreme Court addressed the responsibility of a prosecutor who learns a defendant wishes to testify before the grand jury in conjunction with A.R.S. § 21-412 and Ariz. R. Crim. P. 12.6, noting that:

Under A.R.S. § 12-412 and Rule 12.6, the grand jury is to decide if it wishes to hear a defendant or his evidence.  It can make an informed decision only if, on the one hand the defendant’s request provides information with some degree of detail, at least as to the subject and outline of the proposed evidence, and, on the other hand, if the prosecutor conveys that information to the grand jury.  We believe the statute and rule contemplate both requirements. 

Ms. Bashir argued and the Court of Appeals agreed that Trebus requires a prosecutor to provide some degree of detail to the grand jury, at least as to the subject and outline of the proposed testimony.  The Court noted that the prosecutor always has the duty to present clearly exculpatory evidence to the grand jury; Trebus requires something more.  Additionally, the grand jury, not the prosecutor, makes the choice whether to hear from a defendant.  As such, the Court of Appeals held, when a defendant has requested to testify and provided some detail of the proposed testimony and evidence, the prosecutor must convey that information to the grand jury in a fair and impartial manner in order for the jury to make and informed decision.

Because the prosecutor failed to convey any information to the grand jury beyond Ms. Bashir’s desire to testify, the Court of Appeals remanded for a new determination of probable cause by the grand jury. 

Judge Irvine authored the opinion; Judges Swann and Portley concurred.