In a county that uses an on-call grand jury (impaneled only when needed), can the district attorney's office issue subpoenas in advance, before the grand jurors are sworn in?

Subject

Whether prosecutors may lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled, particularly in counties that use a Penal Code § 904.6 on-call grand jury rather than a standing grand jury.

Plain-English summary

El Dorado County District Attorney Vern Pierson asked the AG a procedural question that has caused "good-faith disagreement" among California prosecutors. His county's superior court doesn't impanel a standing criminal grand jury under Penal Code § 904.6. Instead, it impanels one only when needed. So the DA's office plans cases in advance, asks the court for grand jury dates, and then issues subpoenas before the grand jurors have been sworn in. Some prosecutors think this is fine. Others worry that the 1935 In re Peart decision (Court of Appeal) requires waiting until the grand jury is actually impaneled before subpoenas can issue.

The AG concluded the early-issuance practice is lawful. Three reasons:

1. Penal Code § 939.2 has no temporal limit. The statute authorizes a DA to sign and issue subpoenas "for those witnesses whose testimony, in [the district attorney's] opinion is material in an investigation before the grand jury." Nothing in the statute confines that authority to periods when a grand jury is sitting. The general subpoena power in Penal Code § 1326 likewise has no temporal bar.

2. In re Peart was effectively overridden. The 1935 Peart case held that prosecutors needed grand jury approval before issuing subpoenas. The legislature amended former § 1326 in 1937 to give DAs independent subpoena authority. The current § 939.2 carries forward that grant. The Peart dictum about "pendency of some proceedings in court" being needed to warrant a subpoena (drawn from an 1899 Iowa case) is distinguishable: the early-issuance practice contemplates an impaneled grand jury by the time the witness must testify.

3. Federal courts and most other states permit the practice. In re Grand Jury Proceeding (1st Cir. 1981) and similar cases endorse advance issuance. According to the Beale et al. Grand Jury Law and Practice treatise, at least 48 states permit prosecutors to issue subpoenas before the jury is impaneled. The rationale is practical: early subpoenas keep witnesses available, preserve evidence, and avoid delay.

A safety valve exists. If the grand jury is never impaneled, or the matter never gets before it, the witness can move in superior court to quash the subpoena. The court alone has enforcement power; the grand jury itself is "outside the enforcement process."

What this means for you

District attorneys and their investigators

You can plan grand jury matters and issue subpoenas in advance, particularly in counties using on-call § 904.6 grand juries. This opinion gives you concrete authority to point to. Practical guardrails:

1. Sign subpoenas yourself or through your investigator. Section 939.2 names the DA, the DA's investigator, or (on grand jury request) a superior court judge as authorized signers. Don't have other staff sign.
2. Make sure the grand jury will actually be impaneled in time. The opinion's authorization assumes the witness will appear before an impaneled grand jury. If you issue subpoenas and then the impanelment falls through, you'll face motions to quash.
3. Document the materiality. The statute requires the testimony to be "material in an investigation before the grand jury." Brief notes in your case file of why each witness is material protects against later challenges.
4. In counties with standing grand juries, this still applies. The opinion isn't limited to § 904.6 on-call grand juries. The reasoning applies to any grand jury context, though the practical need for advance subpoenas is most acute when there's no standing body.

Witnesses subpoenaed to a grand jury that hasn't been impaneled

The subpoena is enforceable. You can move in superior court to quash if you have grounds (privilege, irrelevance, harassment, scope). If the grand jury never gets impaneled or the matter never reaches it, that's a strong basis for a motion to quash. Don't refuse to comply on the theory that no grand jury is sitting yet; you risk contempt.

Criminal defense attorneys

If you represent a witness called to testify before a not-yet-impaneled grand jury, the standard motion to quash arguments still apply. Add: if there's no concrete plan for impanelment by the time of testimony, that may be grounds. The AG's opinion explicitly contemplates this challenge ("the witness could make a motion in the superior court to quash the subpoena, giving reasons why the subpoena should not be enforced").

County court administrators

If your county uses a § 904.6 on-call grand jury, expect prosecutors to coordinate with you on impanelment dates so they can issue subpoenas in advance. Setting predictable session windows helps DAs schedule witnesses and avoid quash motions for stale subpoenas.

Common questions

Q: What's a section 904.6 grand jury?

The California Constitution requires every county to impanel at least one grand jury per year (Cal. Const., art. I, § 23; Penal Code § 905). Section 904.6 separately allows a county's superior court to impanel a second grand jury, which has "sole and exclusive jurisdiction" to return criminal indictments (§ 904.6(d)). Many counties use § 904.6 grand juries on an on-call basis, impaneled only when prosecutors have a case ready.

Q: Can the grand jury direct the DA to issue subpoenas after the grand jury is impaneled?

Yes. Section 939.2 authorizes subpoenas "for those witnesses whose testimony, in [the DA's] opinion is material" and "for such other witnesses as the grand jury, upon an investigation pending before them, may direct." The grand jury retains its independent power to direct subpoenas, but that power doesn't crowd out the DA's independent power.

Q: Does the subpoena have to be returnable to a specific grand jury?

The subpoena commands the witness to appear at a specified time and place. Best practice is for the subpoena to be returnable to the grand jury that the prosecutor expects to be impaneled. If the date slips, the prosecutor can re-issue.

Q: What if the witness ignores the subpoena because there's no grand jury yet?

The witness risks contempt. The superior court, not the grand jury, enforces subpoenas. The AG was clear: "the grand jury itself is entirely outside the enforcement process, so whether a specific grand jury is impaneled is immaterial to a subpoena's enforcement."

Q: Does this apply to civil grand jury subpoenas?

The opinion is about criminal grand juries. Civil grand juries (oversight grand juries that report on county government) have different statutory powers. The reasoning may transfer in part, but the statutory anchors are different.

Background and statutory framework

Two grand jury types operate in California:

• The "regular" grand jury under Penal Code § 905 and Cal. Const., art. I, § 23, impaneled in every county at least once per year.
• The § 904.6 grand jury, an additional grand jury that the superior court may impanel on AG, DA, or court motion, with sole and exclusive jurisdiction to return criminal indictments.

The DA's grand jury subpoena authority comes from Penal Code § 939.2, which allows the DA, the DA's investigator, or (on grand jury request) any superior court judge, to issue subpoenas "for witnesses in the state, in support of the prosecution, for those witnesses whose testimony, in [the DA's] opinion is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct."

The general subpoena statute, Penal Code § 1326, parallels § 939.2 for trial subpoenas.

The historical question came from In re Peart (1935) 5 Cal.App.2d 469, which construed an earlier version of § 1326 to require grand jury approval before a DA could issue subpoenas. The legislature responded with the 1937 amendment to § 1326 (Stats. 1937, ch. 215), which gave the DA independent authority. The Beale, Grand Jury Law and Practice, treatise treats Peart as overridden. The current § 939.2 carries the post-amendment language.

The AG previously addressed grand jury subpoenas in 74 Ops.Cal.Atty.Gen. 186 (1991) and 107 Ops.Cal.Atty.Gen. 86 (2024), both consistent with this opinion's analysis.

The grand jury's structural independence from the prosecutor is established in Johnson v. Superior Court (1975) 15 Cal.3d 248 and Williams v. Superior Court of San Joaquin County (2019) 38 Cal.App.5th 1022. But that independence concerns the grand jury's deliberative function (Penal Code § 939 keeps deliberations private), not the prosecutor's investigative subpoena power.

Citations

• Cal. Const., art. I, § 23 (annual grand jury)
• Cal. Penal Code § 904.6 (additional grand jury)
• Cal. Penal Code § 905 (annual grand jury per county)
• Cal. Penal Code § 925 (grand jury investigative duties)
• Cal. Penal Code § 935 (DA appearance)
• Cal. Penal Code § 939 (grand jury session privacy)
• Cal. Penal Code § 939.2 (grand jury subpoenas)
• Cal. Penal Code § 939.8 ("shall find an indictment")
• Cal. Penal Code § 1326 (general subpoena power)
• In re Peart (1935) 5 Cal.App.2d 469 (1935 case, effectively overridden)
• Branzburg v. Hayes (1972) 408 U.S. 665 (citizen obligation to comply with grand jury subpoena)
• Johnson v. Superior Court (1975) 15 Cal.3d 248 (grand jury as buffer)
• Williams v. Superior Court of San Joaquin County (2019) 38 Cal.App.5th 1022 (structural independence)
• McGill v. Superior Court (2011) 195 Cal.App.4th 1454 (grand jury subpoena power)
• In re Grand Jury Proceeding (1st Cir. 1981) 568 F.2d 782 (federal practice)
• 74 Ops.Cal.Atty.Gen. 186 (1991); 107 Ops.Cal.Atty.Gen. 86 (2024) (prior AG)
• Beale et al., Grand Jury Law and Practice (2d ed., December 2023 update), § 6.2

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-401.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA, Attorney General
SUSAN DUNCAN LEE, Deputy Attorney General

No. 23-401
August 9, 2024

The HONORABLE VERN PIERSON, EL DORADO COUNTY DISTRICT ATTORNEY, has requested an opinion on a question relating to criminal grand juries.

QUESTION PRESENTED AND CONCLUSION

May prosecutors lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled?

Yes, prosecutors may lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled. The prosecutor's subpoena power and the court's enforcement power exist regardless of whether the grand jury has been impaneled.

BACKGROUND

The California Constitution and the Penal Code provide that at least one grand jury shall be drawn and impaneled each year in each county. Penal Code section 904.6 provides that the superior court in each county may also impanel a second grand jury, upon the request of the Attorney General or the District Attorney, or on the court's own motion. When a second grand jury is formed pursuant to section 904.6, it has "sole and exclusive jurisdiction" to return criminal indictments. A criminal grand jury's functions include reviewing evidence presented by prosecutors, hearing testimony from witnesses, and determining whether probable cause exists to indict a defendant on criminal charges.

Our requestor is the El Dorado County District Attorney. He informs us that in his county, the superior court has elected not to have a standing section 904.6 criminal grand jury, but instead to impanel a criminal grand jury for limited times, as needed. In response, the district attorney's office plans several criminal grand jury matters in advance of the grand jury's impanelment, and then asks the court to assemble a criminal grand jury during a specific time range. When the court confirms the dates of the next section 904.6 criminal grand jury session, but before the grand jurors are impaneled, the district attorney issues subpoenas. According to the district attorney, there is a "good-faith disagreement" among prosecutors about the issue, and the district attorney now asks for our view as to whether this practice is permissible. As discussed in more detail below, we conclude that it is.

ANALYSIS

Prosecutors play a central role in criminal grand jury proceedings. District attorneys may at all times appear before the grand jury for the purpose of giving information or advice on matters cognizable by the grand jury, and may question witnesses whenever they think it necessary. In addition to summoning the witnesses and gathering other evidence for a particular grand jury investigation (such as physical evidence, recordings, documents, reports, etc.), the prosecutor presents the criminal grand jury with that evidence and asks the grand jurors to consider issuing an indictment against one or more persons based on the evidence and law presented. A prosecutor is also responsible for providing legal guidance to the grand jury, by presenting the applicable legal standards and helping to ensure that the grand jurors understand the law. The relationship between a prosecutor and a grand jury is functionally collaborative, but the grand jury has exclusive power to make its decisions independently of the prosecutor.

The subpoena is the instrument by which witnesses are compelled to appear in a legal proceeding. When properly served, a facially valid subpoena carries all the potential force of the judicial system behind it. "Every citizen has an obligation to comply" with a subpoena to attend a grand jury. Prosecutors have broad general statutory power to subpoena witnesses to appear in support of criminal prosecutions. Prosecutors also have specific statutory power to subpoena witnesses to appear at grand jury proceedings. Penal Code section 939.2, the grand jury statute that discusses subpoenas, provides:

A subpoena requiring the attendance of a witness before the grand jury may be signed and issued by the district attorney, [the district attorney's] investigator or, upon request of the grand jury, by any judge of the superior court, for witnesses in the state, in support of the prosecution, for those witnesses whose testimony, in [the district attorney's] opinion is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct.

Given that the language of section 939.2 contains no temporal limitation, it appears to allow prosecutors to issue criminal grand jury subpoenas at any time. But, according to our requestor, some prosecutors have raised a concern that case law precludes California prosecutors from subpoenaing witnesses in advance to appear before a yet-to-be-impaneled grand jury. Specifically, in 1935, the Court of Appeal in In re Peart construed Penal Code section 939.2's predecessor statute as requiring prosecutors to have the grand jury's approval before subpoenaing a witness to appear. As we understand it, some have argued that this holding, which has never been judicially overruled, may prevent district attorneys from subpoenaing witnesses until after a criminal grand jury has been impaneled. We disagree.

The issue in Peart was whether a district attorney could issue subpoenas to compel the attendance of witnesses when the grand jury had not directed the district attorney to do so. Peart noted that, under the statutes existing at that time, the duties of a prosecutor with respect to a grand jury were merely to "attend upon" and "give advice" to a grand jury, not to coordinate or initiate the grand jury's investigations. Moreover, under former Penal Code section 1326, subpoenas were to be signed and issued by the district attorney "for such witnesses as the grand jury, upon investigation pending before them, may direct." Given that statutory language, Peart held that a district attorney could not issue grand jury subpoenas unless directed to do so by the grand jury.

First, as we have previously observed, in the wake of Peart, former section 1326 "was immediately amended to 'overrule'" that decision and provide the district attorney with the authority that the court found lacking. Specifically, the Penal Code was amended to grant district attorneys clear independent authority to subpoena "those witnesses whose testimony, in his [the district attorney's] opinion is material in an investigation before the grand jury . . . ."

But while the requestor acknowledges broad agreement among prosecutors that the post-Peart legislative amendments mean that a district attorney no longer needs the grand jury's permission to issue subpoenas on its behalf, there remains a question as to whether the grand jury must at least be impaneled before the district attorney may do so. We acknowledge the distinction drawn here, but conclude it is of no moment. First, nothing in the amended or current statute, or in any other statute, confines the prosecutor's subpoena power as it exists post-Peart to periods when a criminal grand jury is impaneled. This is not surprising. If the prosecutor does not need a particular grand jury's permission or approval to issue a subpoena in the first instance, there is no apparent utility or justification for requiring the prosecutor to wait until a particular grand jury is impaneled before issuing it, especially when doing so in advance will facilitate presenting matters to that grand jury once it is impaneled.

The request also points to a passage from Peart in which that court—in response to the petitioner's claim that he was unlawfully confined for disobeying a subpoena when there was no investigation before the grand jury—cited the following language from the 1899 Iowa case of Chambers v. Oehler et al.:

We take it that the pendency of some proceedings in court is necessary in order to warrant the issuance of process for witnesses. There being no case pending in this instance, the justice had no authority to issue a subpoena for a witness. The subpoena having been issued without authority, plaintiff was justified in disobeying it.

This passage does not alter our analysis or conclusion. Again, the controlling California Penal Code provisions place no temporal limits upon a prosecutor's issuance of a grand jury subpoena to a witness that the prosecutor intends to testify before a grand jury that is later impaneled. In any event, a closer reading of Chambers v. Oehler reveals that the improperly-issued subpoena in that case required the witness's appearance at a date and time when there was no action pending before the justice who issued it. That holding has no bearing on the lawfulness of the practice at issue here, which contemplates that the witness will appear before an impaneled grand jury in relation to a matter that is properly before that grand jury by the time the witness appears.

And if, for some reason, the criminal grand jury is not impaneled by the time the witness has been called to appear, or the matter to which the witness's testimony pertained has not come before a sitting grand jury by that time, then the witness could make a motion in the superior court to quash the subpoena, giving reasons why the subpoena should not be enforced. But even in that event, the power either to quash or enforce a grand jury subpoena lies in the superior court alone. The grand jury itself is entirely outside the enforcement process, so whether a specific grand jury is impaneled is immaterial to a subpoena's enforcement. In our view, the fact that a sitting grand jury is not needed to enforce a subpoena provides additional evidence that the Legislature does not require there to be a sitting grand jury before the prosecutor may issue one in the first instance.

Before leaving the subject entirely, we note that several federal courts have expressly endorsed the practice of issuing subpoenas in advance of the grand jury being convened. And it appears that most States permit the practice as well. While California's Penal Code does not authorize the practice in express affirmative terms, we believe for the reasons discussed above that the controlling statutes authorize prosecutors to issue criminal grand jury subpoenas without regard to the impanelment of a particular grand jury, so long as the grand jury will be impaneled to hear the relevant matter by the time the witness must appear before it.

For all the above reasons, we conclude that prosecutors may lawfully issue criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding where the grand jury that will hear their testimony has not yet been impaneled.