The decision in Mason is troubling for several reasons. What was at issue was the presentation of some evidence that either (1) the jury would not otherwise have heard or (2) which came in a prohibited form. If the same evidence was used at trial (heard by the petit jury), then where was the harm in the grand jury considering it? Even if it was not used or useable at trial, does the mere fact it came before the grand jury in the wrong way (because the wrong person asked the question) make it hurtful? Furthermore, since the evidence at trial was sufficient, how does one determine the defendant was harmed by what happened before the grand jury? Is not the proper question whether the substance of the evidence was material or calculated to produce a true bill that should never have been returned? Is that not the only way any influencing of the proceeding would prove harmful? Surely there was nothing wrong in using the grand jury to further law enforcement's investigation.

This decision exalts form over substance merely to prove the State must follow the more recent rule about how evidence is to be presented to the grand jury. Of greatest concern, the holding further implies that whenever evidence is heard by a grand jury that it was not entitled to hear, its decision (to indict) is in jeopardy. To me, that is a scary thought. Furthermore, if, as it seems, the detectives could have been present and communicated their thoughts to the prosecutor to regurgitate to Richards, why conclude there was an improper "added" imprimatur. I am sure the grand jurors already knew the police thought they had uncovered the correct theory of the case.

The court variously speaks of the independence, autonomy, secrecy, impartiality, integrity, and "abuse" of the grand jury (none of which seem to be much affected or furthered by the statutory amendments). The court should be focusing on whether there was good cause for the case to go to trial apart from the tainted evidence (in other words, how the function of the grand jury was affected). That is what I think the trial judge meant by predicting the court of appeals would hold the error of the prosecutor harmless.

If there was a good basis for return of a true bill, then a different remedy for the prosecutor's misinterpretation of the statute should be found because the indictment is not truly faulty or different from what it should (or will) be. If the legislature intended to mandate the remedy chosen by the Court for the presence of, and questioning by, the police, it finds its source from something other than the language used in the two statutes. In short, I question the concession that Mason's motion to quash should have been granted. Footnote 17 may say guiding principles of law (without citation of authority) demanded a different ruling on the motion to quash, but it seems to me that the trial court's error would be in the ruling on the motion, not in proceeding to trial once that decision had been made, and I do not believe the indictment was void (which is really what Mason was required to show). What principle of law says that a violation of this statutory right negates the indictment itself? To say that Mason was deprived of a procedural advantage to which he was entitled begs the question. Why was he entitled to that advantage if the outcome of the proceeding was not affected?

Moreover, in my experience, grand jury testimony is provided once the witness testifies (truly for cross-examination to show prior inconsistency) and not prior to trial. By reason of this anomaly in Mason, I predict this decision will either mean recording of the proceedings will not be utilized (to prevent proof of the "abuse") or that a remedy other than quashing the indictment will generally have to be found since no motion to quash will have been filed or that a new argument is now available (as a result of this decision) for release of the testimony or record of proceedings before trial (i.e, merely to discover the possible invalidity of the indictment).

I concur that two wrongs do not make a right and I am not a believer in "end-arounds." But, finding something harmless is not necessarily a wrong nor does it approve of what happened or solicit repetition. Mason gets an unnecessary windfall because of an unwise construction of what is now an unwise statute.

I will simply ask this question. Why would a prosecutor let an officer question a witness before a grand jury? Is the rule so hard to understand?