specially concurring:
I join in the majority opinion; however, I think the issue is sufficiently important that I wish to be even more specific with *511respect to the basis for the result we have reached.
The State relies on Marston’s, Inc. v. Strand, 114 Ariz. 260, 560 P.2d 778 (1977). I agree with the majority that a close reading of Marston’s does not disclose a holding contrary to the case sub judice. If Mar-ston’s had held that the Attorney General may issue subpoenas to compel a grand jury appearance without the knowledge and consent of the grand jury itself, I would consider the decision unwise. However, the issue is not what was stated or implied in Marston’s; the problem here is to determine the proper function of the prosecutor and grand jury under our statutes. This question was left open in Marston’s, Inc., supra.
As pointed out in the majority opinion, the result reached could be based on precedent interpreting a similar statute or on the need for conformity of procedure before state and county grand juries, as required by A.R.S. §§ 21-408 and 21-427(A). More important than these factors, however, is the historical relationship between the function of the prosecutor and the grand jury. When considered in this light, I find that the most rational interpretation of the statutes is that they require that the grand jury be the investigatory body and that the prosecutor assist it, not that the prosecutor act as investigator and the grand jury as his or her assistant.
The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.” ... The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.
United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979) (quoting United States v. Calandra, 414 U.S. 338, 342-343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974).
Given this background and the concept of the grand jury as a device to protect the citizen against unwarranted governmental intrusion or harassment, I am unwilling to construe a statute which is at best ambiguous in a manner contrary to the historical purposes of the grand jury.
It is true that by rule federal procedure now permits the practice which was attempted by the Arizona Attorney General in this case. However, as pointed out in the majority opinion, federal felony prosecutions may only proceed by indictment, while state prosecutions may proceed by either indictment or information. The interpretation of the statute which we here adopt is not a serious hinderance to law enforcement in Arizona, since the Arizona prosecutor may dispense with the grand jury and start the proceedings necessary for filing an information. It is only when the prosecutor wishes to make use of the grand jury for investigatory purposes that he or she must have its approval for the issuance of subpoenas, and it is at this very point that citizens may need the protection of the grand jury to prevent unwarranted intrusions into their lives and their records. Even in federal practice, it is considered procedurally improper to use a subpoena compelling grand jury appearance for the purpose of procuring attendance of the witness for office interrogation. Durbin v. United States, 221 F.2d 520, 522 (D.C.Cir. 1954). The subpoena is a form of the court’s process and the prosecutor has not been granted use of that power for interrogation except in the presence of the grand jury itself. United States v. DiGilio, 538 F.2d 972, 985 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Since the subpoena may not be used unless it is the prosecutor’s intent that *512the witness appear in the presence of the grand jury, it seems reasonable that witnesses be subpoenaed only with the prior knowledge and consent of that body. If the prosecution cannot convince the grand jury of the necessity and propriety that the witness attend or produce documents, then it may be best that the person be left alone, thereby reducing the risk of abuse in the grand jury proceedings.
The possibility of abuse if the grand jury is made subsidiary to the prosecution is more than mere speculation. It has been the subject of comment; see Holderman, “Preindictment Prosecutiorial Conduct in the Federal System,” 71 J.Crim.Law & Criminology 1 (1980) 1; J. Best, “Government Misconduct” (August 1980) (paper delivered before the Section of Litigation of the American Bar Association). It has been a subject considered by case law which reveals that more than a few indictments have been quashed for prosecutorial misconduct. See, e.g., United States v. Samango, supra; United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); Durbin v. United States, supra. Cf. United States v. DiGilio, supra.
This is not to suggest that the prosecutors, the attorney general or the various state regulatory agencies are unmindful of their responsibility to temper law enforcement with a respect for the rights of our citizens. I do suggest, however, that history, precedent and common sense tell us that the historical protection given citizens against unwarranted intrusion or harassment at the hands of the occasional overzealous government officer ought not to be weakened in the absence of some showing of good reason.
Given the lack of statutory mandate, the precedent of Ex parte Peart, supra, the danger of abuse by unwarranted intrusion into the lives of private citizens, and the historical purposes of the grand jury as a buffer against such evils, it is important that we continue to utilize the grand jury as the investigatory body with assistance of the prosecution, rather than vice versa. Therefore, I concur with Justice Gordon’s statement that the Attorney General in this case “acted in excess of his authority when he issued the subpoena” to Gershon for appearance before the State Grand Jury without the prior consent of that body.
. A comprehensive article by James F. Holder-man, former United States Attorney for the Northern District of Illinois. The article is reprinted in National Law Review Reporter, Vol. 1, No. 4.