Walter E. Simpson, the Little Rock Police Chief, was criticized in a grand jury report. The report states that Simpson failed “before and after his arrival” to exert the leadership necessary to prevent members of the Pulaski County sheriff’s office from tampering with evidence at the scene of the murder of Alice McArthur. The special grand jury was empaneled and the report was received by the j udge of the Fourth Division of the Circuit Court of Pulaski County. Simpson moved that the personal criticism of him be expunged. The court denied the motion. By a writ of certiorari we order the circuit judge to expunge the matter from the report and from the record.
The overriding issue is whether a grand jury should be allowed to punish by j udicially approved public censure for non-criminal conduct which is, in the opinion of the jury, improper.
The Declaration of Rights of the present Constitution of Arkansas provides that a grand jury may proceed by presentment or indictment. In some jurisdictions, grand jury reports are referred to as presentments. See Dession & Cohen, The Inquisitorial Functions of Grand Juries, 41 Yale L.J. 687, 705 (1932). In Arkansas presentments have never been considered the same as reports. Here, a presentment served the same function as an indictment and was differently described only because the investigation had been initiated by the grand jury. State v. Cox, 8 Ark. 436 (1847); Ex Parte Faulkner, 221 Ark. 37, 251 S.W.2d 822 (1952). There is no constitutional provision authorizing grand jury reports. It is clear that the grand jury found no criminal conduct on the part of Simpson and did not intend to return either a presentment or an indictment. Likewise, there is no statutory authority for grand jury reports. However, in Ex Parte Faulkner, supra, we took notice of the fact that “in this State, it has long been the custom and practice for grand juries to make written reports to the court concerning their investigations.”
The majority of courts considering the issue have disallowed reports unaccompanied by presentment or indictment. See cases collected in Application of United Electrical Radio & M. Workers, 111 F. Supp. 858, 866 n.26 (S.D.N.Y. 1953).
The reasoning for the rule is sound. It is founded on the grand jury process and fundamental fairness. The inquisition is conducted in secret. Ark. Stat. Ann. § 43-927 (Repl. 1977). A juror commits a criminal offense if he discloses any of the evidence. Ark. Stat. Ann. §§ 43-928, 929. One being inquired about has no right to know that statements may be made against him. He has no right to confront his accusors. Ark. Stat. Ann. § 43-919. He has no right to cross-examine into the truth or falsity of the allegations. Ark. Stat. Ann. § 43-918. He has no right to testify and, at the same time, has no right to refuse to testify because the self-incrimination doctrine is inapplicable to non-criminal conduct. Consistent with the secret process, the public and the press have no right to read the grand jury minutes. The report is a state publication which carries the aura of approval by the judge who accepted it. The public and the press have no way to look behind it to determine its fairness or its accuracy. On the theory that judges have an absolute privilege against libel suits, and that the grand jury is an arm of the court, grand juries are probably immune from libel suits. See Restatement of Torts, § 589 (1938); Hayslip v. Wellford, 196 Tenn. 621, 263 S.W.2d 136, cert. denied, 346 U.S. 911 (1953).
With the secret inquisitorial process as the background, it obviously becomes manifestly unfair to allow a grand jury report to publicly censure a person for an offense unknown to the law. If allowed to stand, the censure would be accepted as a matter of fact with the censured person never having been afforded an opportunity to rebut the supposed fact. The censured person could not be indicted for the non-offense and would never be given the right to be found not guilty.
All of the factors discussed above have led this Court to state, in Ex Parte Faulkner, supra:
Grand juries are clothed with broad inquisitorial powers and the power to investigate should necessarily include the right and duty to report the result of such investigations. So long as grand jury reports relate to general conditions affecting the public welfare and without reflecting specifically upon the character, or censuring the conduct, of individual citizens they serve a wholesome purpose and are frequently followed by beneficial results to the community.
Many states have carved out an exception to the general rule of disallowing reports unaccompanied by indictments. That exception is for reports criticising public officials. This Court in Ex Parte Faulkner, supra, found it unnecessary to decide whether we recognized such an exception but, in an indication of intention, stated:
It would seem that the weight of authority supports the proposition that it is improper for a grand jury to present with words of censure and reprobation a public official or other person by name without presenting him for indictment and the accused has the right to apply to the court to have the objectionable matter expunged from the court records. 24 Am. Jur., Grand Jury, § 36; 38 C.J.S., Grand Juries, § 34(3). Ex parte Robinson, 231 Ala. 503, 165 So. 582; Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141; In re Report of Grand Jury of Baltimore City, 152 Md. 616, 137 A. 370; In re Report of Grand Jury, 204 Wis. 409, 235 N.W. 789; In re Presentment to Superior Court, 14 N.J. Super. 542, 82 A.2d 496.
The trial judge, in his brief, urges us to adopt the exception. All of the reasons for the general rule also mitigate against the exception for public officials. In addition, there is a grave danger that grand jury reports, which are state judicial publications, may readily be used as instruments of unfair partisan politics. We refuse to adopt the exception.
Certiorari must be granted for yet another reason. Even those states which have adopted the exception will not allow a report which contains no facts but mere opinion. See In re Crosby, 126 Misc. 250, 213 N.Y.S. 86 (Sup. Ct. 1925). The reference to Simpson states that he failed to exert leadership over members of the sheriff’s office. The allegation does not contain a statement of fact. It is opinion only.
An overlapping of investigative authorities exists in Arkansas. The sheriff’s office had a duty to investigate the murder just as did the city police. Neither could lawfully exclude the other. Each could lawfully gather evidence. In such a situation, the extent to which leadership could properly be exerted by the leader of one group over the other group is solely a matter of opinion. In this area Simpson’s opinion may be as valid, or even more valid, than the jurors’ opinion. The report does not provide even the barest facts surrounding the supposed failure to exert leadership “before and after his arrival.”
A writ of certiorari is granted ordering the circuit judge to expunge the matter from the report and from the record.
Hickman and Purtle, JJ., dissent.