State v. Gray

                                       116

Argued and submitted February 23, a peremptory writ will issue July 28, 2022


                       STATE OF OREGON,
                       Plaintiff-Adverse Party,
                                  v.
                           RANDY GRAY,
                         Defendant-Relator.
                    (CC 21CR19107) (SC S068673)
                                    

     In an original mandamus proceeding before the Oregon Supreme Court,
relator, a criminal defendant who had already been charged with a felony by district attorney’s information, invoked his statutory right under ORS 132.320(12)
to appear before the grand jury that was considering whether to indict him on
felony charges. Relator also sought to have his counsel present in the grand jury
room during his testimony. After the trial court denied his motion to allow counsel to appear, relator sought mandamus relief from this court, and the Court
issued an alternative writ. Held: (1) Once the state constitutional right to counsel
under Article I, section 11, of the Oregon Constitution, has attached, a defendant generally has the right to have counsel present during a proceeding when
the presence of counsel could protect the defendant against prejudice as to the
criminal charges; (2) a defendant voluntarily testifying before the grand jury
under ORS 132.320(12) will be questioned by district attorney under oath, with
testimony recorded and available for use against the defendant at trial; (3) without counsel’s presence, defendant might be prejudiced by accidentally waiving an
evidentiary privilege, making statements against interest, or presenting testimony in a way that contradicts (or seemingly contradicts) any later testimony at
trial; and (4) accordingly, relator here is entitled to have his counsel present in
the grand jury room during his testimony.
    A peremptory writ will issue.



    En Banc
    Original proceeding in mandamus.*
  Rian Peck, Visible Law LLC, Portland, argued the cause
and filed the brief for defendant-relator. Also on the brief
was Christopher Marin Hamilton, CBMH Law, Portland.
   Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the brief for plaintiff-adverse party. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
______________
   * On petition for alternative writ of mandamus from an order of the
Multnomah County Circuit Court, Angel Lopez, Judge.
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   Cassidy Rice, Portland, filed the brief for amici curiae
American Civil Liberties Union of Oregon and Oregon
Criminal Defense Lawyers Association.
  GARRETT, J.
  A peremptory writ will issue.
118                                                State v. Gray

        GARRETT, J.
         This matter is before us as an original mandamus
proceeding. See Or Const, Art VII (Amended), § 2. Relator
invoked his statutory right to appear before the grand
jury that was considering whether to indict him on felony
charges. Relator also sought to have his counsel present in
the grand jury room during his testimony. After the trial
court denied his motion to allow counsel to appear, relator
sought mandamus relief from this court. We allowed an
alternative writ and now conclude that, on the facts presented here, Article I, section 11, of the Oregon Constitution
entitles relator to have his counsel present in the grand jury
room during his testimony.
                          I.   FACTS
        The relevant facts are procedural and undisputed.
        Relator is the defendant in the underlying case in
Multnomah County Circuit Court. In April 2021, he was
charged by district attorney’s information with (among
other things) the felony of assaulting a public safety officer,
ORS 163.208.
          A district attorney’s information may initiate a felony prosecution. See ORS 131.005(9)(a), (b) (defining “district attorney’s information”); Or Const, Art VII (Amended),
§ 5(4), (5) (listing circumstances when information may serve
as accusatory instrument). With certain exceptions, however, felony charges can go to trial only on indictment by the
grand jury. Or Const, Art VII (Amended), § 5(3) (a person
may be charged with a felony “only on indictment by a grand
jury”).
        Shortly after the information was filed, relator’s
defense counsel notified the district attorney that relator
intended to appear as a witness before the expected grand
jury proceeding. Such an appearance is authorized by ORS
132.320(12)(a), which provides, in part:
       “A defendant who has been arraigned on an information
   alleging a felony charge that is the subject of a grand jury
   proceeding and who is represented by an attorney has a
   right to appear before the grand jury as a witness if, prior
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   to the filing of an indictment, the defense attorney serves
   upon the district attorney written notice requesting the
   appearance.”
         In addition to giving notice that relator would exercise his statutory right to appear, relator’s counsel later
emailed the district attorney, expressing relator’s desire to
have his counsel present in the grand jury room and asserting that he had a right to the presence of counsel under the
Sixth Amendment to the United States Constitution. The
district attorney did not agree to counsel being in the grand
jury room.
         Relator then filed a motion in the trial court for an
order allowing counsel to attend. He noted that his right
to counsel had already attached. He contended that the
Sixth Amendment to the United States Constitution meant
that the exercise of his statutory right to testify before the
grand jury carried with it a right to have counsel present. A
defendant has a right to the presence of counsel at all “critical stages” of a criminal prosecution. See, e.g., Rothgery v.
Gillespie County, 

, 212 & n 16, 

, 

 (2008) (summarizing “critical stages”). Relator’s
written argument asserted a right to counsel only under
the federal constitution; he did not, at that time, assert any
claim under state law.
          The state objected to the motion on the ground that,
by statute, grand jury proceedings are closed to all but certain designated persons, of whom a witness’s attorney is not
one. See ORS 132.090(1) (subject to certain limited exceptions, “no person other than the district attorney or a witness actually under examination shall be present during
the sittings of the grand jury”). In the state’s view, while
ORS 132.320(12) allowed relator to testify, it did not provide for relator’s counsel to be admitted into the room, and
the legislative history showed that the legislature did not
expect counsel to be allowed entry. The state contended that
relator’s constitutional argument was incorrect under State
v. Miller, 

, 

 (1969) (grand jury
is a “closed and nonadversary proceeding”).
       At the hearing, relator made the additional argument that the Oregon Constitution gave him the right to
120                                              State v. Gray

have his counsel present in the grand jury room. He also
expanded on his contention about what that right entailed,
arguing for the first time that his counsel could not only be
present but could take an active role, including objecting to
questions and directing relator not to answer questions.
         The trial court denied relator’s motion, ruling that
relator’s exercise of his statutory right to appear before the
grand jury did not entitle him to have his counsel present in
the room with him, but that counsel could wait outside and
be available for consultation.
         Relator then filed this proceeding, seeking a writ
of mandamus directing the trial court to grant his motion.
We allowed an alternative writ, and after briefing and argument, the matter is now before us. Relator contends that
the trial court erred, and that relator’s appearance before
the grand jury, though voluntary, is nonetheless a “critical
stage” of the prosecution that entitles him to have his counsel present in the grand jury room. The state argues that
the legislature, in enacting the statute that gives relator the
right to testify, did not create a statutory right to have counsel present, and that relator’s exercise of his statutory right
to appear does not trigger a constitutional right to have his
counsel present in the room with him.
                     II. DISCUSSION
A.    Overview of Grand Juries in Oregon
         “The origin of the grand jury is veiled in obscurity.”
State v. Gortmaker, 

, 

 (1983),
cert den, 

 (1984) (footnote omitted); see id. at
510-12 (reviewing available history). The cases agree, however, that the grand jury serves a “high function,” not only
of bringing to trial those persons justly accused of crimes,
but also of safeguarding the citizenry against arbitrary,
malicious, or unfounded prosecutions. Id. at 512; see United
States v. Mandujano, 

, 

, 

 (1976) (describing grand jury as “an integral part of
our constitutional heritage” whose “historic office has been
to provide a shield against arbitrary or oppressive action, by
insuring that serious criminal accusations will be brought
only upon the considered judgment of a representative body
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of citizens acting under oath and under judicial instruction
and guidance”); State v. Burleson, 

, 

 (2007) (grand jury “serves a crucial role in protecting
individual liberties” by being “a brake on the state’s potential abuse of the accusatory process”).
        The institution of the grand jury is provided for in
the Oregon Constitution, which also gives the legislature
authority to enact implementing legislation. See Or Const,
Art VII (Amended), § 5(1)(b) (permitting legislature to enact
statutes for “[d]rawing and summoning grand jurors”).
         The grand jury is composed of seven persons sworn
to inquire of crimes committed or triable in the relevant
county. Or Const, Art VII (Amended), § 5(2); ORS 132.010.
The crimes may be submitted to the grand jury by the district attorney, ORS 132.330, or by a member of the grand
jury, ORS 132.350.
          In Oregon, a felony may be charged initially by the
mechanism of either a grand jury indictment or a district
attorney information. See ORS 131.005(9)(b) (for felonies,
district attorney information “serves to commence an action,
but not as a basis for prosecution thereof”). With certain
exceptions, however, felony charges in the state can only go
to trial on indictment by the grand jury. Or Const, Art VII
(Amended), § 5(3) (a person may be charged with a felony
“only on indictment by a grand jury”). The exceptions are
where the person waives indictment, id. § 5(4), or after a preliminary hearing where a magistrate finds probable cause
that the person committed a crime punishable as a felony,
id. § 5(5) (or the person waives a preliminary hearing).
         The grand jury considers whether “all the evidence
before it, taken together, is such as in its judgment would,
if unexplained or uncontradicted, warrant a conviction
by the trial jury.” ORS 132.390. If the grand jury decides
to indict, then it endorses the indictment as a “true bill.”
ORS 132.400. If the grand jury decides not to indict, then
it endorses the indictment as “not a true bill,” the effect of
which is to dismiss any pending charge against the defendant. ORS 132.430. Five grand jurors must concur to indict
a defendant. Or Const, Art VII (Amended), § 5(2); ORS
132.360.
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         The grand jury hears the testimony of witnesses
under oath. See ORS 132.100 (requiring foreperson to administer oath to any witness). The testimony is recorded and, in
some circumstances, may be used as evidence against the
defendant at trial. ORS 132.250(1)(a) (district attorney’s
duty to have proceedings recorded); ORS 132.260(1)(b), (c)
(record must include “[t]he name of each witness appearing
before the grand jury” and “[e]ach question asked of, and
each response provided by, a witness”); ORS 132.270(7)(a)
(permitting recording to be used as provided in several identified sections of the Oregon Evidence Code).
        The district attorney1 has an active role in grand
jury proceedings. The district attorney is required to “attend
upon and advise the grand jury when required.” ORS 8.670.
He or she may submit indictments to the grand jury. ORS
132.330.
         In general, the district attorney conducts the examination of witnesses before the grand jury. ORS 132.340
(“when required by the grand jury,” the district attorney
“must … attend its sittings … to examine witnesses in
its presence”). The district attorney is thus excepted from
the prohibition against persons being present when the
grand jury is taking testimony:
        “Except as provided in subsections (2) and (3) of this section and ORS 132.250 and 132.260, no person other than
    the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.”
ORS 132.090(1).2 The grand jurors are not required to rely
on the district attorney’s questioning, however; they may
question the witnesses themselves. See Miller, 

 (noting that person testifying before grand jury would
be “subject to questioning by the district attorney and the
grand jurors”).
     1
       A deputy district attorney may also perform that duty. See ORS 8.780
(“[S]ubject to the direction of the district attorney, [a deputy district attorney] has
the same functions as the district attorney.”).
     2
       An interpreter may attend. ORS 132.090(3). If approved by the circuit
court, a child up to the age of 12 or an intellectually disabled person may be
accompanied by a parent or guardian. ORS 132.090(2). To address a witness’s
needs, the circuit court may also authorize a guard or medical or special attendant to attend. 

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B.    Defendant’s Statutory Right to Testify Before Grand Jury

         The case before us arises from a relatively recent
statutory change to grand jury proceedings. In 2015, the
legislature granted defendants the right, codified at ORS
132.320(12), to appear and testify in grand jury proceedings
when a defendant has been arraigned on a felony allegation
and is represented by counsel. It is undisputed that relator
gave proper written notice of his intention to exercise that
right. The dispute concerns whether relator’s exercise of that
right carries with it a right to have his counsel present in
the grand jury room during relator’s testimony. In the discussion below, we begin with the legislature’s enactment of
the statute in 2015. Although neither party argues that that
statute directly or fully answers the constitutional right-tocounsel question, it is relevant context for our consideration
of that question. See State v. Davis, 

, 

 (2011) (when right to counsel has attached, court
“evaluate[s] the particular circumstances, the nature of the
evidence, and the like to determine the scope of the right to
counsel” (citations omitted)).

         The relevant statutory text regarding a defendant’s
right to testify is contained in ORS 132.320(12). That subsection provides:
         “(12)(a) A defendant who has been arraigned on an
     information alleging a felony charge that is the subject of a
     grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness
     if, prior to the filing of an indictment, the defense attorney
     serves upon the district attorney written notice requesting
     the appearance. The notice shall include an electronic mail
     address at which the defense attorney may be contacted.

        “(b) A district attorney is not obligated to inform a
     defendant that a grand jury proceeding investigating
     charges against the defendant is pending, in progress or
     about to occur.

        “(c) Upon receipt of the written notice described in
     paragraph (a) of this subsection, the district attorney shall
     provide in writing the date, time and location of the defendant’s appearance before the grand jury to the defense
124                                                State v. Gray

   attorney at the indicated electronic mail address. In the
   event of a scheduling conflict, the district attorney shall
   reasonably accommodate the schedules of the defendant
   and the defense attorney if the accommodation does not
   delay the grand jury proceeding beyond the time limit for
   holding a preliminary hearing described in ORS 135.070(2).

       “(d) Notwithstanding ORS 135.070 and paragraph (c)
   of this subsection, in order to accommodate a scheduling conflict, upon the request of the defendant the time
   limit for holding a preliminary hearing described in ORS
   135.070(2) may be extended by a maximum of an additional five judicial days and the district attorney and the
   defendant may stipulate to an extension of greater duration. During a period of delay caused by a scheduling conflict under this subsection, ORS 135.230 to 135.290 shall
   continue to apply concerning the custody status of the
   defendant.”

          Textually, ORS 132.320(12) does not address whether
defense counsel may be present in the grand jury room when
the defendant testifies. But defense counsel has a central
role in the entire right. To begin with, the very existence of
the right to testify is made contingent on the defendant having defense counsel. ORS 132.320(12)(a) (defendant’s right to
testify applies only if defendant “is represented by an attorney”). It is defense counsel who is authorized to give the district attorney notice if the defendant wants to testify. 

 It is
defense counsel who receives the notice from the district attorney of when the defendant will appear. ORS 132.320(12)(c).
In the event of a scheduling conflict, the district attorney
must reasonably accommodate the schedules of both the
defendant and defense counsel. 

 The role accorded to
defense counsel—especially the last point, that the district
attorney must make efforts to schedule the defendant’s testimony in a manner that also accommodates the schedule
of defense counsel—at least raises the question whether the
legislature expected that defense counsel would be present
in the grand jury room for the defendant’s testimony.
         That possible inference from the text, however, is
countered by the statutory context. The legislature has been
quite clear in identifying who may, and who may not, be present in the grand jury room. See ORS 132.090 (so providing).
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No statutory provision authorizes a witness to have counsel
present in the room.
          The legislative history of ORS 132.320(12) confirms
that conclusion. The statutory right to testify set out in ORS
132.320(12) was introduced as Senate Bill (SB) 825 (2015),
and enacted by Oregon Laws 2015, chapter 586, section 1
(it has not been amended since). The testimony indicated
that there was an existing but varying practice in Oregon
of allowing defendants to voluntarily testify before a grand
jury. If a defendant asked to testify, district attorneys would
often grant the request.3 The concern was that it was not a
consistent practice; the statute was intended to formalize
the practice and make it uniform.
         The legislative history is clear on the issue before
us: Although the legislature intended to formalize a defendant’s right to appear before the grand jury and testify, that
intent did not include the right to have counsel present in
the room during that testimony. More than one legislator
commented on that aspect of the bill. For example, at a public hearing before the House Committee on the Judiciary,
Representative Barton confirmed that the bill made no provision for defense counsel in the room:
    “Just in case the Court of Appeals ever reviews this transcript, I want to be very clear that the bill that we are
    reviewing right now does not provide defense counsel entry
    into the grand jury room.”

Audio Recording, House Committee on Judiciary, SB 825,
May 13, 2015, at 0:24:25 (statement of Rep Brent Barton),
https://olis.oregonlegislature.gov (accessed July 21, 2022).
    3
      The practice had been noted in passing in Miller, 

 (mentioning possibility that a defendant might “voluntarily testify” before grand
jury). The witnesses before the legislature agreed that it happened; they disagreed only on how frequently a prosecutor declined to let the witness testify.
Compare Audio Recording, House Committee on Judiciary, SB 825, May 13,
2015, at 0:30:45 (statement of Jeff Howes, First Assistant to Multnomah County
District Attorney), https://olis.oregonlegislature.gov (accessed July 21, 2022) (“[I]f
the defense attorney would make that overture, ‘my client would like to come
testify,’ I don’t know of a prosecutor personally that would turn that down.”),
with 

 at 0:49:20 (statement of Jason Short) (“I’ve asked for my clients to testify
before the grand jury, and that’s been denied. … I’ve also asked, and it’s been
accommodated.”).
126                                                 State v. Gray

He then expressed his concern about the absence of counsel
when the defendant would be testifying under oath:
   “It’s in the interest of the accused that I am extremely
   reluctant. I’ve never practiced criminal defense law. But
   you don’t have to be Clarence Darrow to figure out that
   having your client cross-examined on record under oath, in
   ways that are coming in at trial, without you being there,
   only bad things can happen. And it just seems like there’s
   no better way for an innocent person to go to jail than for
   them to go in and do this. It makes me extremely nervous
   on behalf of your clients.”

 at 0:25:30. Gail Meyer, appearing as a witness on behalf
of the Oregon Criminal Defense Lawyers Association
(OCDLA), responded:
   “This is a reform that is very much embraced by the
   National Association of Criminal Defense Lawyers, and
   the American Bar Association got there first [i.e., had
   already proposed it]. And the reason is, once the indictment is returned, all hell breaks loose. I mean it just does.
   And if there is an explanation that can be provided by the
   target of the grand jury—‘consider this from my vantage
   point, I understood that I was under fear of bodily harm
   if I didn’t do X’—that is something for the grand jury to
   consider before the indictment. And so this is a reform
   that is very much embraced. And again, it’s embraced
   by a wide spectrum of organizations. But it’s fully vetted by the defense bar and it’s a national concern. And
   there are some states that are doing this. And again,
   Representative Barton—… this does occur in Oregon. It’s
   not like we’re inventing an opportunity that doesn’t happen. What the bill attempts to do is structure it, so that
   there isn’t ad hoc, disparate application of this around the
   state.”

 at 0:26:05.
         The legislative history further shows that the legislature declined to have the defendant’s testimony conducted
in the form of direct and cross examinations. As introduced,
the bill had permitted a defendant to first “give evidence” to
the grand jury, then be examined by prosecutor and grand
jury. The introduced bill would have amended ORS 132.320
to include a subsection (12)(e) providing:
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       “When the defendant appears as a witness before the
    grand jury pursuant to this subsection, the defendant shall
    be permitted to give any relevant and competent evidence
    concerning the charges under consideration and, after giving evidence, is subject to examination by the district attorney and the grand jury.”
SB 825 (2015), Introduced. That provision was deleted, however. See SB 825 (2015), House Amendments to A-Engrossed
(June 1, 2015). As the legislative history shows, both the
prosecutors’ bar and the defense bar thought it was unnecessary, even without counsel in the room. The prosecution
believed it would allow a defendant to engage in unconstrained speechmaking. Audio Recording, House Committee
on Judiciary, SB 825, May 13, 2015, at 0:10:25 (statement
of Gail Meyer, OCDLA) (“The district attorneys were concerned that this language allowed the defendant to simply
give a monologue—their phrase, ‘to speechify’—and then be
subject to cross-examination.” (Emphasis in original.)). The
defense bar expected defense counsel to be working with the
prosecutor before any testimony is given. Counsel would thus
be aware if the prosecutor was likely to treat the defendant
as a hostile witness and seek only to obtain incriminating
confessions, and presumably counsel would then discourage
the defendant from testifying.4
         In summary, then, the legislative history confirms
what the text and context suggest: The statutory right to
appear before the grand jury does not also entail a statutory
right to have counsel present in the grand jury room during
the testimony. It also shows that the legislature expected the
defendant to testify in the same manner as other witnesses.
C. State Constitutional Right to Counsel
         Having concluded that the statute giving relator the
right to appear before the grand jury makes no provision for

    4
      As Meyer would later testify:
    “[U]sually you would never get your client in without having discussed this
    pretty much in-depth with the district attorney before you do it. And our
    thought is, if you really have a very hostile district attorney, you probably
    aren’t going to agree to do this.”
Audio Recording, House Committee on Judiciary, SB 825, May 13, 2015, at
0:42:15 (statement of Gail Meyer).
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his counsel to be present, we turn to relator’s constitutional
arguments. As we will explain, we agree with relator that he
has a state constitutional right to have his counsel present in
the grand jury room during his testimony, although, contrary
to relator’s argument, that right is limited to having counsel
advise and direct relator regarding his testimony. Because we
conclude that such a right exists under the state constitution,
and because relator does not argue that he would be entitled
to any additional or greater relief under the federal constitution, we have no need to address relator’s argument under
the Sixth Amendment. See State v. Cookman, 

, 32
n 15, 

 (1996) (when court held that application
of statute violated state constitutional prohibition against
ex post facto laws, court did not need to consider whether it
also violated federal prohibition against ex post facto laws);
State v. Medinger, 

, 92 n 1, 

 (2010)
(accepting argument that, “because the federal [legal] standard is less stringent” than Oregon law, determination that
arrest was not supported by probable cause under Oregon
law obviated need to reach federal question).

      1.   Overview

        The right to counsel is set out in Article I, section 11,
of the Oregon Constitution.5 It provides, in part:
       “In all criminal prosecutions, the accused shall have
    the right … to be heard by himself and counsel[.]”

         This court has repeatedly addressed the meaning of that provision, including in Davis, 

, and
State v. Prieto-Rubio, 

, 

 (2016). In
Davis, this court examined the provision’s text, its history, and this court’s prior case law interpreting it, then
used the identified underlying principles to inform how
the court should apply them to modern circumstances.
See Davis, 

 (summarizing steps and citing
     5
       We note that an implicit right to counsel is found in the right against self-incrimination in Article I, section 12, of the Oregon Constitution. See, e.g., State
v. Scott, 

, 

 (2007) (explaining that “[t]he right against
self-incrimination [in Article I, section 12] includes a derivative right to counsel
during custodial interrogation,” and discussing cases). Relator makes no argument under Article I, section 12, and accordingly, we do not address it.
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cases);6 

 (analyzing those steps in connection
with right to counsel under Article I, section 11). In Prieto-Rubio, this court followed Davis and applied it in a different
context. Although the precise holdings of both cases are not
on point, they analyzed the history and purposes of the right
in a way that is helpful to considering the issue before us.
         In brief: The right to counsel had been understood
historically to focus on trial. See Davis, 

 (summarizing conclusions from text); 

 (summarizing
history); 

 (summarizing early Oregon caselaw);
see also Prieto-Rubio, 

 (same). Changes in the
nature of criminal prosecutions and law enforcement, however, led first the United States Supreme Court and then
this court to extend the right to certain pretrial proceedings. Davis, 

 (summarizing United States
Supreme Court caselaw); 

 (summarizing this
court’s prior caselaw); see Prieto-Rubio, 

(same).
          A defendant’s right to counsel under both the state
and federal constitutions generally begins when criminal
proceedings have been initiated, at which point the right is
said to attach. See Davis, 

 (discussing federal
cases); 

 (discussing state cases). Yet the attachment of the right to counsel is separate from the scope of
that right: Even after the right has attached, not all pretrial
proceedings require the presence of defense counsel. 

 (federal law); 

 (state law). The right to
have counsel present exists only as to those pretrial proceedings that implicate the need to protect a defendant’s right to
a fair trial.
    6
       Earlier cases had addressed Article I, section 11, but Davis was the first to
do so using the approach to constitutional interpretation summarized in Priest v.
Pearce, 

, 

 (1992) (the “three levels” of analysis for a
state constitutional provision are “[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation”). See Davis, 

 (noting that court had never previously applied that methodology to
Article I, section 11). In applying that methodology, we seek “to understand the
wording in the light of the way that wording would have been understood and
used by those who created the provision, and to apply faithfully the principles
embodied in the Oregon Constitution to modern circumstances as those circumstances arise.” State v. Hirsch / Friend, 

, 

 (2005),
overruled in part on other grounds by State v. Christian, 

, 

 (2013) (internal quotation marks and citations omitted).
130                                                State v. Gray

        In State v. Newton, 

, 

 (1981),
overruled in part on other grounds by State v. Spencer, 

, 

 (1988), a plurality of this court used
language drawn from the United States Supreme Court’s
Sixth Amendment cases to express the relevant standard
for when a defendant has a right to the presence of counsel
under Article I, section 11:
   “Any pre-trial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state’s case may
   be enhanced or the defense impaired due to the absence
   of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of
   counsel.”
Newton, 

 (giving as examples the surreptitious questioning of an indicted defendant, and the participation of a defendant in a post-indictment lineup identification). Later cases reiterate the same standard in different
words, but always focusing on whether the absence of counsel would risk prejudice to the defendant’s legal interests.
See State ex rel. Russell v. Jones, 

, 

 (1982) (“[A] criminal defendant’s guarantee of the
assistance of counsel exists at least at all court proceedings
from arraignment through probation revocation as well as
all post-indictment out-of-court critical stages where, without the assistance of counsel, the legal interests of the defendant might be prejudiced.”); State v. Sparklin, 

, 

 (1983) (“[O]nce a person is charged with
a crime he or she is entitled to the benefit of an attorney’s
presence, advice and expertise in any situation where the
state may glean involuntary and incriminating evidence
or statements for use in the prosecution of its case against
defendant.”); Prieto-Rubio, 

 (“[U]nder Article I,
section 11, the scope of the right to counsel encompasses
stages in criminal proceedings in which counsel’s presence
could prevent prejudice to a defendant.”).
      2. Application
         In this context, one of the first questions to consider is whether there is a “criminal prosecution[ ],” because
the text of Article I, section 11, makes the right to counsel
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applicable only in that instance. It is not disputed that
relator, having already been formally charged by a district
attorney’s information, is the accused in a criminal prosecution. It is also undisputed that relator’s right to counsel has
attached.
         We turn, then, to the question whether relator’s voluntary testimony before the grand jury is such that he has a
right to have counsel present in the grand jury room during
that testimony. We conclude that he does.
         As a preliminary matter, we note that this situation
appears to fall squarely within the text of Article I, section 11.
In State ex rel. Russell, this court addressed whether the
defendant had the right to the presence of counsel at a presentence interview before a probation officer. We began with
what we called the “short answer.” As Article I, section 11,
provides that an accused has the right “to be heard by himself and counsel,”
   “[a] short answer, therefore, is that counsel cannot be
   excluded from any stage of the criminal prosecution at
   which a defendant is to be ‘heard[.]’ ”

.
        Such a simplistic approach does not fully represent
the more detailed legal test set out in our caselaw, discussed
above. But it does offer some support for relator’s position, which we now consider in light of that more detailed
framework.
         As noted above, a defendant generally has the right
to the presence of counsel during a proceeding when the
presence of counsel could protect a defendant against prejudice as to the criminal charges. See Prieto-Rubio, 

 (right to counsel exists where “counsel’s presence could
prevent prejudice to a defendant”); Newton, 

(defendant has right to presence of counsel when “the state’s
case may be enhanced or the defense impaired due to the
absence of counsel”).
        Here, relator will be questioned by the district attorney, and under oath. That testimony will be recorded, and it
could be used against relator at trial. As sworn testimony in
132                                             State v. Gray

response to the district attorney’s questions, the proceeding
has similarities to a defendant taking the stand at trial.
The opportunities for prejudice are manifest: The defendant
might waive an evidentiary privilege by failing to claim it,
or he might make statements against interest, or he might
present testimony in a way that contradicts (or seemingly
contradicts) any later testimony at trial. The state is correct
that the legislature, in enacting ORS 132.320(12), did not
intend to convert the grand jury into an “adversarial” proceeding. And the legislative history reflects an expectation
that, in the main, defendants will not choose to appear before
grand juries in circumstances where the interactions are
expected to be particularly adversarial. At the same time,
we cannot ignore the fact that a defendant who exercises the
statutory right to appear will already have been charged
with a crime. That fact alone lends an inherently adversarial quality to a prosecutor’s questioning of the defendant
that is not present with respect to any other witness.
          We also agree with relator that counsel’s presence
in the grand jury room during the defendant’s testimony
would lessen the risk of prejudice. In State ex rel. Russell,
we found a constitutional right to the presence of counsel
when there was only a low chance that counsel would be
able to protect a defendant’s interests. Regarding the right
to counsel at a presentencing interview before a probation
officer, this court noted that “little purpose” would often be
served by the presence of counsel, and that later procedural
opportunities meant that there “rarely” would be a “risk of
irremediable harm” if counsel were absent. 

-
18. “Yet, circumstances are conceivable where the presence
of counsel would be helpful.” 

. That was sufficient
for this court to hold that the defendant had a right to have
counsel present for the presentencing interview.
         The same is also true for relator’s testimony before
the grand jury. At a minimum, counsel’s presence means
that relator may consult with a fully informed counsel, who
will have directly heard the question and can provide relator with informed advice.
        We note that there is a common practice of grand
jury witnesses stationing their counsel outside the grand
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jury room so that the counsel may be consulted during the
witness’s testimony. See Sara Sun Beale et al., Grand Jury
Law and Practice § 6:30 (Westlaw 2d ed Dec 2021 update)
(“Generally a witness who has retained counsel is permitted
a reasonable opportunity to consult with counsel outside the
grand jury room before and during his testimony.”). We do
not think that the presence of counsel outside the grand jury
room is a sufficient substitute for the presence of counsel
inside the room for a defendant who has been charged and
whose right to counsel has attached. An attorney who is not
present must rely on a hearsay version of the question, one
stripped of context, and relayed by a person who is unlikely
to be educated in the law. An attorney who hears the question directly, and in the context in which it was asked, will
be better equipped to provide advice.
         We therefore agree with relator. Under Article I,
section 11, a defendant’s appearance before the grand jury,
albeit voluntary, is a critical stage of the prosecution that
triggers the constitutional right to have counsel present.
        The state contends that that conclusion is inconsistent with this court’s decision in Miller, 

. The
issue in that case was whether the defendant had validly
waived his right to indictment by grand jury when he was
unrepresented at the time. 

. This court considered whether the decision to waive indictment was a critical
stage, and it held that it was not:
   “[United States Supreme Court case law requires] legal
   representation for an accused at a time when he must take
   steps or make a choice which is likely to have a substantial effect on the prosecution against him. We do not perceive that waiver of grand jury is such a choice, as we do
   not believe that such a waiver is actually determinative of
   whether criminal proceedings could or would be brought.”

. This court then added:
       “Had defendant chosen to insist upon indictment, there
   is nothing that a lawyer could have done to represent him
   before the grand jury, because that is a closed and nonadversary proceeding. All that a lawyer could have done
   for him was warn him not to voluntarily testify in front of
   the grand jury where, while unrepresented, he would have
134                                                State v. Gray

   been subject to questioning by the district attorney and the
   grand jurors.”

 The state focuses on the court’s statement that, if a defendant did choose to voluntarily appear before the grand jury,
he or she would be “unrepresented.”
          We think that the state reads too much into the
words “while unrepresented.” In general, the only time the
defendant would be permitted to be in the grand jury room
would be as a witness. But Miller was issued before any
statute provided a defendant with a right to make such an
appearance, and the court was not addressing focused arguments by a defendant whose right to counsel had attached
and who sought to appear before the grand jury as a matter
of right.
         The state suggests that finding a right for counsel
to be present in the grand jury room would imply that courts
must also allow defense counsel to attend the entirety of the
grand jury proceeding—or, more sweepingly, that defense
counsel must be permitted to be present for any number of
other events during an investigation and prosecution, such
as police interviews of every witness. We disagree. We are
addressing whether a defendant, who has already been
charged, whose right to counsel has attached, and who is
testifying under oath when questioned by the district attorney, is entitled to have counsel present in the room for that
testimony. We have expressly held that “[c]ollecting and
recording existing evidence does not require the presence
of defense counsel.” State v. Tiner, 

, 

 (2006), cert den, 

 (2007) (no right to have
counsel present for photographing of defendant’s tattoos).
Moreover, as the United States Supreme Court stated in
United States v. Ash, 

, 

, 

 (1973):
   “ ‘None of the classical analyses of the assistance to be
   given by counsel … suggests that counsel must be present when the prosecution is interrogating witnesses in the
   defendant’s absence even when, as here, the defendant is
   under arrest; counsel is rather to be provided to prevent
   the defendant himself from falling into traps devised by a
   lawyer on the other side and to see to it that all available
   defenses are proffered.’ ”
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-17 (quoting United States v. Bennett, 409 F2d
888, 899-900 (2d Cir), cert den, 

 (1969) (Friendly, J.));
see also Ash, 

 (“In all cases considered by the
Court, counsel has continued to act as a spokesman for, or
advisor to, the accused.”).
         We have agreed with relator that he has the right
to have counsel present in the grand jury room during his
testimony. But relator also asserts that he is also entitled
to have counsel conduct the direct examination of him and
then make formal evidentiary objections to the district attorney’s questions. Relator does not anchor those assertions
in any authority beyond the constitutional right to counsel
generally, and we do not agree that the right to the presence of counsel necessitates the expansive role that relator
envisions. The statutes contemplate that the questioning in
the grand jury room will be done by the prosecutor and the
grand jurors, ORS 132.340; see Miller, 

, and
there is no judge present to rule on evidentiary objections,
see ORS 132.090 (listing limited set of persons who may be
present during grand jury proceedings). The legislative history furthermore shows that, when the legislature created
a charged defendant’s right to voluntarily testify before the
grand jury, it declined to create a process of direct and cross
examinations. Providing for questioning to be done by anyone else would effect a significant and disruptive change
to the grand jury process that the legislature rejected and
that is not necessary to vindicate the right that Article I,
section 11, protects. That right functions as a shield, see
Prieto-Rubio, 

 (right to presence of counsel is to
“prevent prejudice to a defendant”): It protects defendants
against questioning that could cause them to make admissions against their interest, waive a privilege, or otherwise
prejudice their defense at trial. As such, that constitutional
right is vindicated by having counsel present who can hear
the questions that are asked, advise and direct the client
with respect to answering them, and, if necessary, advise
the client to terminate the testimony.
                     III.   CONCLUSION
        For the foregoing reasons, we conclude that, when
a defendant seeks to testify before a grand jury under ORS
136                                           State v. Gray

132.320(12), the defendant has a state constitutional right
to have counsel present in the grand jury room for consultation during the defendant’s testimony. Counsel may advise
or direct the defendant as to questions that are asked, but
performance of the consultative function does not extend to
examining the defendant or any other witness.
        A peremptory writ will issue.