dissenting:
¶ 1 I begin by examining the relevant provisions of the Multi-county Grand Jury Act.1 The majority Order states that the Act “does not contain any provision authorizing any witness or other person to present evidence.”2 This assertion is somewhat misleading: The Act does provide that the Mul-ti-county Grand Jury may: compel the attendance of witnesses; compel the testimony of witnesses under oath; require the production of documents, records and other evidence; and exercise any investigative power of any grand jury of the state.3 The Act expressly provides that all matters not specifically governed by its provisions shall be subject to the general provisions governing grand juries.4 Like the Order, I look to the grand jury provisions for guidance, but I believe the majority misinterprets those provisions.
¶2 Because Section 335 fails to define “accused,” the majority Order emphasizes the language in Section 333 allowing for written testimony from witnesses “taken in a preliminary examination of the same charge,” and asserts that the proximity of this section to Section 335 indicates that “accused” refers to a person already charged with an offense. This interpretation ignores other language in the statute. Under Section 333, a grand jury may also hear and receive testimony offered by witnesses and may receive legal documentary evidence.5 The Order also refers to State v. Edens6 which confines the term “accused” to one who has been indicted or is in actual custody or has been arrested during the prosecution of an offense. Yet the definition adopted in Edens arises in a criminal trial context, while this case involves a grand jury proceeding. These two situations are clearly distinct. The Order suggests the Legislature' could have chosen a broader term than “accused” in Section 335, but nothing in the grand jury statutes suggests the Legislature intended to limit “accused” in Section 335 to persons already charged with a crime. Indeed, this robs the section of its force, since most persons targeted for a grand' jury investigation have not been charged with any crime. The language in Section 333 is much broader in scope than the majority’s interpretation allows.
¶3 I would equate “accused” with “target” or “potential defendant.” In this respect, I would define an “accused” as a person as to whom the prosecutor or the grand *1001jury has substantial evidence linking her to the commission of a crime, and who, in the judgment of the prosecutor, is a putative defendant.7 Using this definition, Judge Powers here had the authority to order the State to tell Lindsay Morgan and Tait if they were targets of the grand jury investigation.
¶ 4 In- the context of a grand jury proceeding, I believe that an accused- has a right to be notified of her status. Section 335 requires the grand jurors, upon request of the accused, to hear evidence for the accused.8 This ease demonstrates the importance of affording a witness this right. If Lindsay Morden and Tait had received “target” warnings, they would have had the opportunity to present witnesses on their behalf. Without this right to notice, the State could simply refuse to classify a person as an accused, as here, until the proceedings ceased and thereby deprive a grand jury witness of a statutory right.
¶ 5 There is also a potential federal constitutional right involved. In United States v. Washington, the Supreme Court explicitly held that grand jury witnesses are not constitutionally entitled to “target” or “potential defendant” warnings.9 In Washington, the Court appeared to rely on the fact that prior to his testimony, the grand jury witness was given warnings concerning his right to remain silent and his right to avoid self-inerimi-riation.10 The Supreme Court has not yet addressed the question of whether any Fifth Amendment warnings whatsoever are constitutionally required for grand jury witnesses. Three Circuits for the U.S. Court of Appeals have concluded that failure to provide any warning at all is error.11 My recommendation is that, to avoid this potential problem and to preserve state statutory rights, the State should provide the witness with a notice regarding her status as a witness and a warning, (if the witness is a target or an accused) in writing at. the time she. is ordered to appear before the grand jury.
¶ 6 ■ I am authorized to state that Judge Johnson joins in this dissent.
. 22 O.S.1991, § 350 et seq.
. Order at 999, ¶ 10.
. 22 O.S.1991, § 354.
. 22 O.S.1991, § 350.
. 22 O.S.1991, § 333.
. 565 P.2d 51, 52-53 (Okl.Cr.1977), overruled on other grounds in Buis v. State, 792 P.2d 427 (Okl.Cr.1990).
. The Department of Justice also uses this definition. See U.S. Attys. Man. 9-11.150.
. 22 O.S.1991, § 335.
. United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1820, 52 L.Ed.2d 238 (1977).
. Washington, 431 U.S. at 188-89, 97 S.Ct. at 1819-20 (events including warnings and the police investigation clearly put respondent on notice that he was a suspect).
. United States v. Jacobs, 547 F.2d 772 (2d Cir.1976)(suppressing grand jury testimony as a sanction for failing'to provide warnings of target status); United States v. Crocker, 56,8 F.2d 1049, 1056 (3d Cir.1977)(endorsing the practice of the Second Circuit); United States v. Pacheco-Ortiz, 889 F.2d301 (1st-Cir.1989)(finding the-prosecutor’s failure-to give target warnings was error but declining to impose sanctions). The majority’s narrow interpretation of “accused" would deprive a trial court of the authority to consider this potential constitutional question. The Legislature cannot prohibit a trial court from deciding a constitutional issue, and I do not believe it intended that result.