dissenting:
I respectfully dissent from the majority’s interpretation of section 112 — 4(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b)). Initially, I disagree with the majority’s conclusion that section 112 — 4(b) is not unclear. While the section directs that a target witness be informed of certain rights, it is not clear who has the duty to so admonish the witness or when such admonishments should be made.
The majority finds that the State’s Attorney is not required to apprise a target witness of the rights specified in the last sentence of section 112 — 4(b). The majority does not address who should provide such warnings since the target witness herein, defendant, had an attorney who advised him prior to his testimony. I am not fully persuaded that the State’s Attorney is not charged with the duty to inform a target witness of his or her rights. Although the United States Supreme Court has not conclusively determined that warnings are constitutionally required when a witness testifies before a grand jury (United States v. Mandujano (1976), 425 U.S. 564, 48 L. Ed. 2d 212, 96 S. Ct. 1768; United States v. Washington (1977), 431 U.S. 181, 52 L. Ed. 2d 238, 97 S. Ct. 1814), Illinois has long provided for such warnings (see, e.g., People v. Cochran (1924), 313 Ill. 508). The Illinois Supreme Court has recently overruled Boone v. State (1894), 148 Ill. 440, in People v. J.H. (1990), 136 Ill. 2d 1, based upon the remedy provided in that case (indictment was quashed in Boone because the prosecutor failed to advise the defendant of his constitutional rights before the grand jury), finding instead that suppression of the grand jury testimony would be a proper remedy. I do not read J.H. as providing that there was no violation of the defendant’s rights in Boone which would go unremedied today but only that the remedy in Boone is no longer applicable. I note that the target witness in J.H. had received warnings by the prosecutor. (See generally People v. Green (1988), 179 Ill. App. 3d 1; People v. Wurster (1980), 83 Ill. App. 3d 399.) From a practical standpoint, it would behoove a State’s Attorney to admonish a target witness rather than leave to chance that such rights will be given, as is the result under the majority’s opinion. It would also remove any problems due to the attorney-client privilege should it be necessary to determine whether a witness’ attorney advised the witness of his or her rights off the record. No issue regarding privilege was raised in the instant case.
In any event, the majority finds that the instant defendant’s attorney advised defendant of his rights. Under section 112 — 4(b), a target witness has the right to be accompanied by an attorney “who shall advise [the witness] of his rights during the proceedings.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).) It is evident from the legislative history that this provision was intended to allow the witness’ attorney to be physically present in the grand jury room during the proceedings. The other justices find, however, that a target witness’ attorney is not required to provide the specific admonishments found in the last sentence of section 112 — 4(b) in advising the witness of his or her “rights.” They interpret the first sentence as merely providing that the role of the attorney for the target witness is to give the witness advice during his or her testimony whenever the witness has a question about his or her rights.
I do not disagree that a target witness’ attorney would be present to advise the witness of his or her rights during the proceedings. The attorney’s role in this respect is broader than merely advising the witness of the specific rights enumerated in the last sentence of section 112 — 4(b). However, such “rights” would obviously include the right to refuse to answer questions which may tend to incriminate the witness and that anything the witness says could be used against the witness in a court of law. I find that the last sentence specifies what those “rights” must include, at a minimum, when a witness’ attorney “shall advise him of his rights during the proceedings.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).) Furthermore, the phrase “during the proceedings” indicates the time that such admonishments must be given. I base this interpretation on the fact that the purpose of the first sentence in section 112 — 4(b) is to ensure that the witness’ attorney is physically present during the proceedings to advise the witness of his or her rights. Also, prior case law in Illinois shows that such admonishments should be given at or during the proceedings. The close proximity of the warnings to a target witness’ testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness as well. See Washington, 431 U.S. at 191, 52 L. Ed. 2d at 247, 97 S. Ct. at 1821.
While the majority’s opinion states that a target witness’ attorney is not required to give any specific admonishments under section 112 — 4(b), the effect of its decision has placed that duty on the witness’ attorney. It acknowledges that certain rights must be given to the target witness, but that there is no duty on the State’s Attorney to so advise the witness. By the majority’s reasoning, the duty to admonish the witness herein fell on the witness’ attorney in the absence of some other individual advising the witness. Thus, the “rights” the witness’ attorney was required to give the witness included the specific rights listed in section 112 — 4(b). The majority’s decision has placed the duty to provide specific admonishments on the witness’ attorney despite their conclusion that there is no such duty on the witness’ attorney.
Since the witness’ attorney gave the instant defendant certain admonishments prior to the proceedings, the majority concludes that the statute was met. I disagree. The rights must be given “during the proceedings.” The defendant’s attorney’s affidavit does not provide that the rights were given during the grand jury proceedings but “just prior to” the grand jury testimony. I believe requiring such advice during the proceedings largely removes any questions concerning how long “prior to” the testimony is too long to make the warnings effective. Therefore, I do not believe the statute has been complied with, and I would reverse.