302 A.3d 1006
STATE of Delaware,
v.
Thomas PONZO, Defendant.
ID Nos. 2303005845
2302015372
Superior Court of Delaware.
Submitted: July 21, 2023
Decided: September 5, 2023
Kevin B. Smith , Deputy Attorney General, and Georgia C. Pham, Deputy Attorney General, DEPARTMENT OF JUSTICE, Dover, Delaware, Attorneys for the State of Delaware.
Tasha M. Stevens-Gueh, Esquire, ANDREW & STEVENS-GUEH, LLC., Georgetown, Delaware, Attorney for the Defendant.
OPINION
Clark, R.J.
Defendant Thomas Ponzo seeks Court approval to record grand jury witness testimony. In support, he cites two Delaware rules of criminal procedure that conflict. One rule permits the recording of grand jury proceedings only by court order. The other rule, which is Delaware's version of the Jencks Rule, requires the State to produce any recorded grand jury witness testimony if the same witness later testifies at trial or in an evidentiary hearing. The conflict between the two arises because the Superior Court does not permit such recording. In fact, the Court has not exercised its discretion to approve a request to record grand jury proceedings since it adopted both rules in their current form in 1992. As a result, one rule recognizes a defendant's right to certain materials while the other leaves no practical remedy because the material never comes into existence.
Nevertheless, despite this unfairness, for the reasons discussed below, (1) Delaware's requirement for court approval to record grand jury proceedings, and (2) the Superior Court's longstanding practice of denying such requests are constitutional and otherwise lawful. Mr. Ponzo's contention that the Court has no option other than to grant his request as a matter of course contradicts the structure of the controlling rule which requires court approval. That requirement for court approval, in turn, requires a court to exercise discretion based upon a movant's showing of good cause. Because Mr. Ponzo identifies no specific facts to differentiate his case from any other case presented to a Delaware grand jury, the Court must deny his motion.
Despite the lawfulness of the current scheme, Mr. Ponzo's motion highlights a marked unfairness for criminal defendants. Delaware's practice of not recording grand jury testimony deviates from the federal system and a significant majority of state systems. Many of those jurisdictions, including the federal courts, opted to change their rules after grappling with the same or similar issues. A change to Superior Court Criminal Rule 6(e)(1) would be necessary, as well as advisable, to provide procedural fairness for criminal defendants like Mr. Ponzo. Systemically, such a rule change would also provide better insulation against some of the procedural irregularities in Delaware's grand jury system discussed below.
I. BACKGROUND
As summarized above, this motion turns on the partial conflict between two Court rules. As background, the Court will first discuss the two rules. It will then highlight relevant aspects of Delaware's grand jury system, including its long-entrenched practice of not recording grand jury proceedings, before discussing the case's relevant factual and procedural background.
A. Applicable Court Rules
This case turns primarily on the interpretation and application of Superior Court Criminal Rule 6(e)(1) (hereinafter " Rule 6(e)(1)"), adopted in 1992. That Rule provides that grand jury proceedings, except for deliberations and voting, "may be recorded ... only with the approval of the court." 1 The language in this Delaware provision is unique among state and federal jurisdictions.
As an important comparison, Federal Rule of Criminal Procedure ("FRCrP") 6(e)(1) has required the recording of grand
jury proceedings since 1979. Before 1979, the federal system provided for discretionary recording of grand jury proceedings as does Delaware's current rule. Because of the similarities between the past federal practice and the current Delaware practice, federal case law that examined the federal practice prior to 1979 is instructive when considering Mr. Ponzo's challenge.
The other relevant rule, Superior Court Criminal Rule 26.2 (hereinafter " Rule 26.2"), provides certain procedural rights to a defendant. Specifically, it requires the State to disclose prior statements of witnesses immediately after the State calls those witnesses to testify at trial or at an evidentiary hearing. Rule 26.2(f)(3) includes the following within its definition of a statement subject to production: "[a] statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury." 2 Notably, Delaware first adopted Rule 26.2 in 1992 at the same time it added paragraph (e)(1) to Rule 6. 3 Unlike Delaware's Rule 6(e)(1), however, Delaware's Rule 26.2(f)(3) mirrors its 1979-adopted federal counterpart.
Both Delaware's and the federal version of Rule 26.2(f)(3) are based on the provisions of a federal statute, 18 U.S.C. § 3500. This statute, also known as the Jencks Act, codifies a modified version of the rule first announced by the United States Supreme Court in Jencks v. United States (the " Jencks Rule"). Delaware's Rule 26.2(f)(3) implies that there should be recordings of grand jury witness testimony available for disclosure in some cases. Notwithstanding that implication, neither the parties nor the Court could identify a single recording of a grand jury proceeding in Delaware since the Court adopted the current rule in 1992.
B. Delaware's Grand Jury Process
On the one hand, Delaware's grand jury system provides important procedural protections for criminal defendants. On the other, it serves as a necessary tool to permit the prosecution of criminal conduct. In Delaware, the grand jury serves as an appendage of the Superior Court and any records of its proceedings remain within the Court's control. 4 As the Delaware Supreme Court has recognized, "[f]or more than two hundred years, Delaware's Constitutions have afforded its citizens the right of being proceeded against in a felony criminal prosecution only upon an indictment by the grand jury." 5 These provisions "establish the grand jury as a constitutional body" and "preserve the historical and highly prized safeguard of [g]rand [j]ury action ...." 6 In that way, the review serves "as a vital check against the wrongful exercise of power by the State and its prosecutors." 7 By longstanding tradition, "[i]n federal and state jurisdictions the grand jury serves as a shield
against official tyranny, malicious prosecution, and ill-advised, expensive trials." 8
According to one treatise on criminal procedure, Delaware is one of 18 states that, in addition to the District of Columbia and the federal system, guarantee the accused a right to indictment by a grand jury on felony charges. 9 In Delaware, grand jury proceedings supersede preliminary hearing proceedings. An indictment, issued by a grand jury, establishes probable cause for felony charges with finality in the Superior Court and serves as the basis for jurisdiction in the Superior Court absent a waiver of indictment by a defendant. 10
Historically, the grand jury had an investigatory role in addition to an accusatory function. 11 Many jurisdictions, including the federal system, use their grand juries for investigative purposes. As the State acknowledged at oral argument, however, Delaware grand juries are virtually never investigative. 12 They are not used in that manner, no doubt, because Delaware's Attorney General has statutory subpoena power available to support criminal investigations. 13 Most other jurisdictions, by contrast, do not provide their chief prosecutors with such power. 14 In fact, the Delaware Attorney General's compulsory investigative power is so great that it both predates and postdates an indictment by continuing from the outset of the case until the end of the prosecution. 15 Given such broad subpoena power, Delaware's Attorney General has little tactical incentive to ask for Court approval to record grand jury proceedings.
Delaware Superior Court Rule 6(d), as its federal counterpart, specifies who may be present during the proceedings. It limits attendance to the grand jurors, the attorney general, the witness under examination, interpreters (if needed), and a stenographer or operator of a recording device. 16 Proceedings "may be recorded stenographically or by an electronic recording device only with the approval of the court." 17 No one but the grand jurors themselves may be present during their deliberation or voting, and the deliberation and votes can never be recorded. 18 Furthermore, counsel for Mr. Ponzo contended at oral argument that prosecutors rarely attend grand jury proceedings in Delaware, 19 and the State did not contest his assertion.
The common law shields the substance of grand jury proceedings from disclosure with a "veil of secrecy." 20 Superior Court Criminal Rule 6(e)(2) reflects that general rule of secrecy by providing that no one...
