SuperDave, do you know why the R's weren't called to testify to the grand jury? I can't understand why all of the 4 people who were in the house that night weren't called to testify? 1 is dead, 1 who was a child did testify, but the 2 adults didn't testify...why?
I'm not sure if this is legally correct or not (I'll try to look it up later if no one else remembers), but it seems I remember that this was tied to the Fifth Amendment. Just like an accused person can't be forced to testify, neither can they be compelled to answer to a GJ if they are the focus of that GJ investigation. Way back when this was going on, it seems like Hunter denied that anyone was the focus of the GJ. There was speculation that he made that statement so that if the GJ wanted, they would be able to subpoena the adult Ramseys. But then they never did. They called nearly every other member of the family (including a minor, because he could not be charged), but not Patsy or John. Had they been called, they would have been asked questions similar to a trial -- not like a police interrogation. So would it have served any purpose to call them knowing they would not get truthful answers to their questions? (I don't think so.) And then there's the question of how much information would have to be shared with them if they were called.
I've read over some of the CO statutes regarding GJ proceedings, and I tried to read some of a book titled
Grand Jury Practice, by Howard W. Goldstein (until my eyes started glazing over). The most applicable CO statute seems to be
C.R.S. 16-5-204 (Witnesses before a grand jury - procedure), in addition to the other statutes that deal with the individual criminal procedures. I couldnt find anywhere that it refers to someone being the focus of a GJ investigation, unless the person has already been arrested and charged with a crime, where the powers of a GJ are used to gather fact in support of the existing charges. However, when a person (
any person) is summoned to testify before a GJ, they have certain rights which the GJ may not have wanted to grant them by their subpoena. Ill post the entire portion of the section that addresses this with the pertinent portions bolded:
TITLE 16. CRIMINAL PROCEEDINGS
CODE OF CRIMINAL PROCEDURE
ARTICLE 5. COMMENCEMENT OF CRIMINAL ACTION
PART 2. INDICTMENTS AND INFORMATIONS
NOTICE
(I)You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.---(II)Anything you say to the grand jury may be used against you in a court of law.---(III)You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.---(IV)If you cannot afford or obtain an attorney, you may request the court to appoint an attorney to consult with or represent you.
(b) Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.
(c) Repealed.
(d) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.
(e) Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.
(f) An authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. The reporter's notes and any transcripts which may be prepared shall be preserved, sealed, and filed with the court. No release or destruction of the notes or transcripts shall occur without prior court approval.
(g) Upon application by the prosecutor, or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his own grand jury testimony, or minutes, reports, or exhibits relating to them.
(h) Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness's written approval, shall be entitled, prior to testifying, to examine and copy at the witness's expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made to any law enforcement or prosecution official or under an oath required by law that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he shall be furnished, upon request, a copy of such transcript and shall not pay a fee.
So if a person is summoned to appear (
my synopsis):
- They can have an attorney with them to advise them during their testimony.
- The lawyer cannot make objections, arguments, or address the grand jury (as they would do in a trial). Further, if the lawyer does become disruptive, they can be forced out of the proceedings (How long would it have taken Lin Wood to get expelled?).
- The witness in a GJ can at any time invoke the Fifth Amendment and refuse to answer.
- If requested by the witness (or legal council), before giving testimony he/she will be furnished with prior statements made by them (or about them, as I understand (h) above) and any reports or exhibits relating to them (This is the reason the attorney representing BR -- even as simply a witness -- was given a copy of the 911 recording.). Basically, this means that PR and JR would be supplied with any of the incriminating evidence pertaining to them that the GJ might have.
So it seems to me, knowing the unstated circumstances around the GJ and the possibility of Ramsey testimony, there was a cat and mouse game, or an intricate dance being performed. On the prosecution side, they (DAs office, GJ, and BPD) were investigating what happened with no particular POI. The Ramseys (being the innocent victims) wanted to assist, but wouldnt provide any information that would lead to an indictment against them, so they wouldnt have wanted to invoke the Fifth. Were they called, all information, police reports, expert opinions, and testimony by others pertaining to them would be given over to them and their attorneys (which would aid in their defense if charges were ever pursued). In effect, what purpose would it have served to call them as witnesses?
While reading through the statutes at
http://www.lexisnexis.com/hottopics/Colorado/, I also ran across a couple of things I thought were interesting. Not to get too far OT from the original question, but Ill just mention them here so were aware of them.
Spousal privilege,
marital privilege,
spousal immunity, are all terms describing the fact that a person does not have to give testimony against their spouse. This is a
privilege -- not a
right, and states are allowed to define the extent to which it can be used. CO specifically denies this privilege in the cases of Class 1, 2, and 3 felonies (
CRS 13-90-107. Who may not testify without consent - definitions):
(II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1) (a) (IV) and (1) (a) (V), C.R.S.
It is also denied as it may apply in a case of child abuse:
The marital privilege cannot be invoked to exclude a spouse's testimony in a case involving child abuse. People v. Corbett, 656 P.2d 687 (Colo. 1983).
Besides spouses, this same statute (
CRS 13-90-107) defines the privilege as it is allowed to attorneys, clergy, physicians, etc.
In
C.R.S. 18-6-401,
Wrongs to Children, (Child Abuse) it states specifically
(Dr. Beuf needs to read this):
The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for a violation of this section.
Further in this statute:
(7) (a) Where death or injury results, the following shall apply:
(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony except as provided in paragraph (c) of this subsection (7).
Paragraph (c) of this subsection states:
(c) When a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child, such person commits the crime of murder in the first degree as described in section 18-3-102 (1) (f).
Clarifications after this statute state:
Inaction may be act of mistreatment. The child abuse statute proscribes acts of mistreatment which include inaction as well as action. People v. Jennings, 641 P.2d 276 (Colo. 1982).
"Knowingly". The requirement of "knowingly" in former subsection (1) did not refer to the actor's awareness that his conduct was practically certain to cause the proscribed result; instead, "knowingly" referred to the actor's general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he committed an act against the well-being of the child. People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Thompson, 756 P.2d 353 (Colo. 1988).
One more interesting tidbit I ran across in
C.R.S. 18-6-701, (
Contributing to the delinquency of a minor) that Ill just copy for anyone to decide for themselves how (or if) it applies here:
An adult may be charged with violating this statute regardless of whether the minor was actually charged with or convicted of a crime or whether the minor was old enough to be charged with or convicted of a crime. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).
The statute does not require that a minor child be charged or convicted of a crime or that the child be older than ten years old for a person to be found guilty of contributing to the delinquency of a minor. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).
