Ivey v. State , 82 Nev. 448 ( 1966 )

OPINION

By the Court, Thompson, J.:

This appeal is from an order denying a petition for habeas corpus. A grand jury indictment was returned, charging Ivey with statutory rape. In line with Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966), Ivey petitioned for habeas to secure a copy of the transcript of the testimony of the witnesses who appeared before the grand jury, in order that he might determine whether reasonable or probable cause was shown to hold him for trial.¹ The district court apparently believed that an in camera inspection of the transcript by the court on the issue of probable cause would satisfy our holding in Shelby, and denied relief.

It is true that in Shelby we were not asked to decide whether the trial court, in camera, could resolve probable cause, when faced with a habeas petition bottomed on the failure of the state to show the existence of probable cause to hold the accused for trial. Yet that opinion carried strong statements bearing on the point. We there wrote: “We know that pretrial inspection and copying of the transcript of the testimony of the witnesses who appeared before the grand jury will, to some degree, diminish the traditional secrecy of grand jury proceedings, and allow the discovery of evidence heretofore denied the indicted defendant.” Id., 82 Nev. 204, 210, 414 P.2d 942, 945. Furthermore, we pointedly overruled the dictum of Victoria v. Young, 80 Nev. 279, 284, 392 P.2d 509, 512 (1964), that a defendant “is not even entitled to a transcript of the grand jury proceedings.” Id., 80 Nev. 279, 284, 414 P.2d 942, 945, 946. Those expressions are not consonant with an in camera review. They can only mean that an accused must be allowed to test probable cause in an adversary manner. This cannot be accomplished unless he is supplied a copy of the transcript.

In our opinion the notion of an in camera review by the court denies precepts which are basic to our system of justice. In this country, criminal justice is accusa-torial, not inquisitorial. One has a right to be free from harrassment and restraint if probable cause for trial is not shown to exist. That right necessarily carries with it the right to know what evidence was formally received by the grand jury and supplied the basis for its indictment. Surely the quality of justice is enhanced by adversary contention. A court needs the assistance of counsel for both sides if it is to judge wisely. We now hold that a copy of the grand jury transcript of the testimony of the witnesses appearing before it must be furnished the accused if, by habeas corpus, he challenges probable cause to hold him for trial.

We reverse the order below, and direct the district court to furnish the petitioner with a copy of the grand jury transcript within 30 days from this date. If not so furnished, the indictment shall be dismissed and the petitioner discharged from custody or restraint.

Zenoff, D. J., concurs.

1 NRS 34.500(7) authorizes discharge from custody or restraint, if one is not committed upon a criminal charge with reasonable or probable cause.