If his allegations are to be believed, Thomas Lee Goldstein suffered an injustice as a result of the failure of our judicial system that is difficult to conceive — serving 24 years in prison for a crime he did not commit — and now seeks through a civil lawsuit to gain some small measure of the justice that has previously eluded him. I agree with the majority that the strong policy in favor of grand jury secrecy generally does not permit discovery of grand jury transcripts and materials except for that which fits into the narrow categories defined by statute. I also agree with the majority that Penal Code section 924.21 is one avenue Goldstein may use to access grand jury materials. But as the majority also acknowledges, its position, and that of courts of the state for over 125 years, is consistent with a recognition of an "absolute necessity" exception to the rule against discovery of grand jury materials. (See ExParte Sontag (1884) 64 Cal. 525, 526, 528-529 [2 P. 402] (Sontag).) I write separately to affirm that there is indeed such an absolute necessity exception, and to explain in my view what showing a civil litigant must make in order to fit within that exception.
We affirmed in Daily Journal Corp. v. Superior Court (1999)20 Cal.4th 1117, 1129 [86 Cal.Rptr.2d 623, 979 P.2d 982]) that "whatever exercise of authority to disclose grand jury materials has not been expressly permitted by the Legislature is prohibited." (See alsoMcClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1179 [245 Cal.Rptr. 774, 751 P.2d 1329] (McClatchy).) Yet "it is axiomatic that cases are not authority for propositions not considered." (Peoplev. Alvarez (2002) 27 Cal.4th 1161, 1176 [119 Cal.Rptr.2d 903,46 P.3d 372].) Neither Daily Journal nor McClatchy, both of which involved requests by the press for public disclosure of grand jury materials, considered a case in which nondisclosure would cause injustice to a civil or criminal litigant. As explained below, our cases strongly suggest that disclosure would be available on the proper showing of need and the *Page 237 resulting injustice if disclosure is not made, and when the disclosure would not undermine the goals underlying grand jury secrecy.
As an initial matter, this court has long recognized "common law principles as supplementary to the applicable California statutes relating to grand juries." (People v. Superior Court (1973 Grand Jury) (1975)13 Cal.3d 430, 440, fn. 11 [119 Cal.Rptr. 193, 531 P.2d 761]; see alsoFitts v. Superior Court (1936) 6 Cal.2d 230, 240-241 [57 P.2d 510].) InFitts, the court concluded that the concurrence of 12 grand jurors was necessary to return an accusation against a public official. Although no statute spoke to the issue, the court based its conclusion on the common law. "The grand jury system is a product of the common law. . . . The members of the first constitutional convention in providing for a grand jury must have had in mind the grand jury as known to the common law. . . . The convention of 1879, like the convention of 1849, by failing to make further provisions as to the grand jury left to the legislature all questions affecting the grand jury not expressly covered by the Constitution. The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common-law grand jury as claimed by the respondents." (Fitts,supra, 6 Cal.2d at pp. 240-241.)
We have also recognized that common law principles should be employed as a means of interpreting statutes related to grand jury secrecy. (McClatchy, supra, 44 Cal.3d at pp. 1172-1173.) Although grand jury secrecy was the rule under common law, an exception was recognized under certain circumstances when a breach of secrecy is in furtherance of justice. As stated in an 1882 treatise more or less contemporaneous with our second constitutional convention, and quoted in Sontag: "But when, for the purposes of public justice, or for the protection of private rights, it becomes necessary, in a court of justice, to disclose the proceedings of the grand jury, the better authorities now hold that this may be done," subject to certain exceptions. (Thompson Merriam on Juries (1882) § 703, p. 740 (Thompson Merriam), quoted in Sontag,supra, 64 Cal. at p. 526.) The "better authorities" to which the treatise refers are state judicial authorities reflecting the development of the common law. (Thompson Merriam, supra, at p. 740, fn. 4, and cases cited therein.) In Sontag, the question was whether a defendant attempting to have his indictment set aside could require a grand juror to declare whether he voted for the indictment. (Sontag, supra,64 Cal. at p. 526.) After quoting the treatise above, the court discussed various cases and treatises that addressed that particular question and then declared that "[i]n this State the whole matter is regulated by statute." (Id. at p. 527.) It proceeded to expound on former section 903, which, inter alia, expressly prohibited grand jurors from disclosing how they or other grand jurors voted. *Page 238
The Sontag court then concluded: "It is contended that the right to move on the ground that the indictment was not properly found necessarily includes the right to prove the fact by the testimony of those only who can know the fact. But there are many legal rights which cannot be established by certain witnesses. . . . The mere inconvenience or difficulty of proving the fact ought not to overrule the many grave objections to a procedure not only not directly authorized, but expressly forbidden by the Code, which may interfere with the complete freedom of exposure of alleged offenses which it is the design of the institution of grand juries to secure, and conflict with other principles of public policy which are subserved by keeping inviolate the secrets of the grand jury room — except when their disclosure is absolutely necessary.". (Sontag, supra, 64 Cal. at p. 528, italics added.)
In Shepherd v. Superior Court (1976) 17 Cal.3d 107 [130 Cal.Rptr. 257,550 P.2d 161], plaintiffs sued the City of Emeryville and various city officials in connection with the alleged wrongful death of their son at the hands of several Emeryville police officers. They sought to discover materials in the possession of the Alameda County District Attorney that had been presented to the Alameda County Grand Jury, which had refused to return an indictment against the police officers. (Id. at pp. 113-114.) The court rejected the Alameda County District Attorney's argument that denial of the grand jury material was supported by United States v.Procter Gamble (1958) 356 U.S. 677, 683 [2 L.Ed.2d 1077, 78 S.Ct. 983] (Procter Gamble), in which the court held that wholesale discovery of grand jury transcripts was not available absent a "compelling necessity." First, the Shepherd court pointed out that the plaintiff did not "seek to learn what evidence was or was not presented to the grand jury, or the content of that body's deliberations upon it. What she seeks are materials which may or may not have been so presented. We do not perceive that any significant derogation of the policies underlying grand jury secrecy is here at stake." (Shepherd, supra, 17 Cal.3d at p. 127.) Second, "as the high court was careful to point out, there may be cases of urgent and particularized need in which those policies [of secrecy] must be made to yield to some extent in order to accommodate the demands of truth and fairness in civil litigation. Although the `"indispensable secrecy of grand jury proceedings" [citation] must not be broken except where there is a compelling necessity [,] [t]here are instances when that need will outweigh the countervailing policy.' (. . . Proctor Gamble,supra, 356 U.S. 677, 682. . . .)" (Shepherd, supra, 17 Cal.3d at p. 127.)
In People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 [92 Cal.Rptr.2d 829], the court held that, despite the lack of an express statutory provision, the capacity of defendants to reasonably set aside their indictments pursuant to section 995 would be undermined if such defendants were forbidden to discover nontestimonial grand jury materials, including oral and written advisements given the grand jury by the district attorney. *Page 239 (78 Cal.App.4th at pp. 435-436.) The court recognized a rule permitting defendants to grand jury discovery material "necessary to . . . bring a section 995 motion to set aside [their] indictment." (Id. at p. 436.) The majority in the present case correctly recognize that this case serves as an example of an absolute necessity exception that "could operate without eroding the interests served by grand jury secrecy." (Maj. opn., ante, at p. 232, fn. 11.)
The recognition of a common law "absolute" or "compelling" necessity exception to the grand jury secrecy rule is consistent with the development of the law in other jurisdictions. For example, in State v.Hartfield (1981) 290 Ore. 583 [624 P.2d 588], the Oregon Supreme Court considered whether a defendant could obtain a tape recording of the state's chief witness given to the grand jury that had indicted the defendant. The trial court had refused such access, finding no statutory authorization for such a disclosure. The Supreme Court reversed. It noted that there were two statutory exceptions to grand jury secrecy under the relevant statute, Oregon Revised Statutes section 132.220, which provides: "A member of a grand jury may be required by any court to disclose: [¶] (1) The testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court. [¶] (2) The testimony given before such grand jury by any person, upon a charge against such person for perjury or false swearing or upon his trial therefor." Although neither of these provisions was construed to assist the defendant, the court allowed discovery of the tape recording under a nonstatutory judicial exception of long standing, in which such material is discoverable "`when permitted by the court in the furtherance of justice.'" (Hartfield, supra, 624 P.2d at p. 590.) The court quoted from a venerable treatise, 1 Bishop on Criminal Procedure (2d ed. 1872) section 859: "`[W]hen the reasons for keeping the testimony private have passed away, the obligation of secrecy would seem to have ended also. Yet when, in addition to this, the claims of public justice must go unsatisfied unless the disclosure is made, the same reason which originally required secrecy requires that the secret be no longer kept.'" (Hartfield, supra, 624 P.2d at p. 591, italics omitted.) It appears that most jurisdictions have likewise adopted some sort of furtherance of justice exception to the grand jury secrecy rule.2 *Page 240
Thus, the absolute or compelling necessity exception has been invoked both in the context of criminal indictments, as in Sontag, and civil lawsuits and discovery, as in Shepherd. Given the existence of a common law compelling necessity exception not strictly based on statute, the question is, what must a civil litigant show in order to qualify for that exception? What a compelling necessity is not, and therefore impliedly what it is, was suggested by the United States Supreme Court in Procter Gamble. There, a grand jury had refused to return a criminal antitrust indictment against the defendants. The government filed a civil suit against the defendants and the defendants sought the grand jury transcripts the government was relying on to prepare its civil case. (Procter Gamble, supra, 356 U.S. at pp. 678-679.) The high court held the district court had abused its discretion in granting wholesale access to grand jury transcripts. After reciting the reasons for maintaining grand jury secrecy, the court stated: "This `indispensable secrecy of grand jury proceedings,' [citation] must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity. [¶] No such showing was made here. The relevancy and usefulness of the testimony sought were, of course, sufficiently established. If the grand jury transcript were made available, discovery through depositions, which might involve delay and substantial costs, would be avoided. Yet these showings fall short of proof that without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done." (Procter Gamble, supra,356 U.S. at p. 682.)
Moreover, the notion of absolute necessity implies a necessity so compelling that it outweighs the strong countervailing interests in grand jury secrecy. This principle is elucidated in Douglas Oil Co. v. PetrolStops Northwest (1979) 441 U.S. 211, 220 [60 L.Ed.2d 156, 99 S.Ct. 1667] (Douglas Oil), which interpreted a former version of rule 6(e) of the Federal Rules of Criminal Procedure (18 U.S.C.), providing that disclosure of grand jury transcripts may be made "`when so directed by a court preliminarily to or in connection with a judicial proceeding.'" The court concluded that the one seeking disclosure must show, inter alia, "that the need for disclosure is *Page 241 greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed." (Douglas Oil, supra, at p. 222.) The court made clear that "[s]uch a showing must be made even when the grand jury whose transcripts are sought has concluded its operations. . . . For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties." (Ibid.)
Although the compelling necessity test suggested by the California case law discussed above is more stringent than the test adopted in DouglasOil, that case is instructive in the present context. Even if a plaintiff in a civil case were to show a strong need for grand jury materials, and that such materials would be in the furtherance of justice, the plaintiff's discovery request could not be granted if to do so would undermine the reasons for grand jury secrecy recited in the case law and strongly implicit in the state's legislation regarding grand juries. Moreover, this need for secrecy is substantial not only when the grand jury is performing its criminal indictment function but also when, as in this case, it performs its investigatory function. "Compared with indictment proceedings, the efficacy and credibility of watchdog investigations no less require that witnesses testify without fear of reproach by their peers or their superiors. Though the watchdog investigation and report serve a different social purpose than the criminal indictment, eliciting candid testimony is obviously critical to both functions of the grand jury." (McClatchy, supra,44 Cal.3d at p. 1175.)
In light of the above, in cases in which a civil plaintiff seeks transcripts of a grand jury investigation, in my view the litigant must show (1) that the information sought is necessary to prosecute his or her claim; (2) that the information cannot reasonably be obtained through the usual means of civil discovery short of resorting to grand jury materials — "mere inconvenience or difficulty of proving the fact" is not sufficient (Sontag, supra, 64 Cal. at p. 528); (3) that granting the request will not undermine the essential functions of grand jury secrecy, including that of ensuring that the disclosures will not chill the testimony of future grand jury witnesses; (4) that the request is narrowly tailored to accomplish these ends. Although the above is more strict than under federal law (see Douglas Oil, supra, 441 U.S. at p. 222) and those of many state jurisdictions, anything less would appear to be inconsistent with the strong policy of grand jury secrecy that finds its expression in our statutes. *Page 242
In the present case, as the majority note, Goldstein has not articulated, and the Court of Appeal did not rely on, an absolute necessity standard. Whether he can do so on remand remains to be seen.3