State v. Jose Alfaro: Obtaining Secret Grand Jury Testimony

In a highly publicized case State v. Jose Alfaro, presently pending in Palm Beach County's Circuit Court the State has alleged that Jose Alfaro murdered his victim Steven Febonio by shooting him in the back of the head; the State has alleged that Alfaro shot Febonio because he owed him money for carpentry work Febonio had done for Alfaro.; the murder took place in 2009 and is set for trial in mid May of this year.

Board Certified criminal trial attorney Michael B. Cohen is representing Alfaro and has entered a not guilty plea on Alfaro's behalf denying the charges filed by the State.

Cohen today argued a defense's motion to compel the State to produce secret Grand Jury testimony of one of the witnesses who claim the Alfaro confessed that he had shot Febonio in the above manner as alleged in the State's Indictment; The Motion was taken under advisement by Circuit Court Judge Richard Oftedall who is expected to render a decision on the motion within a week.

Although the defense had already obtained a sworn statement of the witness as well as deposition testimony of the same witness, Cohen argued the secret grand jury testimony of the witness should be disclosed to the defense since it was important to resolve a conflict in her testimony; On an earlier occasion the witness had stated that Alfaro had allegedly confessed to shooting the victim, while on deposition at a later date she stated that Alfaro had only first hit the victim; this conflict in the testimony,Cohen argued , required the Court to conduct an in camera (or private) review of the grand jury testimony so that the transcript could be made available to the defense if the court found that such a conflict was corroborated before the grand jury when the witness testified.

The law of disclosure concerning grand jury testimony is quite pertinent to both this case and many other serious criminal cases.

In the federal system although grand jury testimony is secret pursuant to rule 6 e of the Federal Rules of Criminal Procedure and not discoverable prior to trial, under a provision of the federal criminal code (Title 18 USC section 3500) known as the Jencks Act, the defense is entitled to the grand jury witnesses's testimony after the same witness testifies before a trial jury prior to the cross examination of that witness by the defense. If a witness does not testify at trial however then a defense attorney to obtain the grand jury testimony of the witness must allege and prove a "particularized need" for such testimony.

In State Court practice however , the defense is not entitled to a copy of the grand jury testimony of a witness even after the witness testifies at a jury trial.

Florida Statute Section 905.27 authorizes limited release of grand jury evidence for (1) deciding the dependability of testimony (2) determining if perjury transpired or (3) in continuance of justice; The defense must show a particularized need sufficient to justify the revelation of the generally secret grand jury proceedings; thus once a grand jury investigation ends disclosure is proper when justice requires it.

Cohen is hoping therefor to obtain an Order compelling the State of Florida to disclose the grand jury testimony of this witness based upon these principles of law.