Grand Jury’s Prerogative Over Witness Presentation: Neither Prosecutors Nor Defendants Have a Unilateral Right to Dictate In‑Person vs. Remote Testimony Before Oregon Grand Juries

Introduction

In State v. Wall, 374 Or 407 (2025), the Oregon Supreme Court, sitting en banc, resolved a first-impression question about who decides the manner in which a defendant testifies before an Oregon grand jury—specifically, whether the defendant has an absolute right to appear in person rather than by videoconference. The Court held that, at least in the first instance, the decision belongs to the grand jury itself. Neither the prosecutor nor the defendant has unilateral, unreviewable authority to dictate the form of testimony. Because the trial court was not under a non-discretionary duty to order an in-person appearance, mandamus did not lie, and the alternative writ was dismissed.

The case arises from a murder prosecution in which the defendant invoked his statutory right to appear before the grand jury under ORS 132.320(12)(a). The district attorney insisted he could appear only remotely. The defendant sought a court order requiring in-person testimony. The trial court declined, and the Supreme Court affirmed via dismissal of the mandamus writ. This decision clarifies the allocation of decision-making authority within Oregon’s grand jury system and interprets “appear before the grand jury” under ORS 132.320(12)(a) to encompass both in-person and remote testimony, consistent with ORS 132.320(5).

Summary of the Opinion

The Oregon Supreme Court dismissed the alternative writ of mandamus. It held:

The manner of receiving witness testimony—whether in person or via simultaneous electronic transmission—is a choice that belongs to the grand jury, at least in the first instance.
ORS 132.320(12)(a) grants a represented, arraigned defendant the right to appear before the grand jury if timely requested, but it does not confer a unilateral right to dictate the mode of appearance as in-person only.
The statutory text (“appear”), context (including ORS 132.320(5) authorizing remote testimony), and legislative history (SB 825 (2015)) do not support reading a categorical in-person right into ORS 132.320(12)(a).
Mandamus is an extraordinary remedy available only to compel a non-discretionary legal duty. Because the trial court had no non-discretionary obligation to order in-person testimony, mandamus was inappropriate.
The Court expressly left open how the grand jury should make its decision, and the extent to which that decision is reviewable by the trial court.

Background and Procedural Posture

The state initially charged Austin Adrian Wall with second-degree murder via a district attorney’s information. Before any indictment, and while represented by counsel, Wall invoked his right under ORS 132.320(12)(a) to appear before the grand jury. The prosecutor asserted Wall could testify only by videoconference, not in person.

Wall moved for an order requiring that he be allowed to appear in person. The trial court denied the motion, reasoning it lacked authority to dictate the district attorney’s conduct of grand jury proceedings, though it recognized a right to “appear.” The court stayed the “proceedings” pending mandamus but was uncertain whether the stay encompassed grand jury activity. The grand jury later returned an indictment. Wall filed motions (e.g., to dismiss or set aside the indictment) but the court declined to lift the stay to hear them.

Wall petitioned for mandamus seeking (1) an order compelling the trial court to allow in-person testimony, and (2) an order vacating grand jury proceedings allegedly held in violation of the stay. In his Supreme Court briefing, he advanced only the first contention. The Court issued an alternative writ and set argument. It ultimately dismissed the writ, concluding no non-discretionary duty required the trial court to order an in-person appearance.

Legal Analysis

The Grand Jury’s Institutional Role and Statutory Framework

The Court anchors its analysis in the constitutional and statutory structure of Oregon’s grand jury. Under Or Const, Art VII (Amended), § 5(3)–(5), felony charges proceed by indictment (grand jury) or by preliminary hearing following an information. The grand jury serves as an accusatory body and a citizen check on executive charging power (State v. Burleson, 342 Or 697 (2007)).

The statutes situate the grand jury within the judiciary’s oversight while preserving the grand jury’s independent prerogatives:

The court empanels, charges, and advises the grand jury (see ORS 132.010; ORS 132.020; ORS 132.050; ORS 132.060; ORS 132.070; ORS 132.120).
The grand jury conducts investigations (ORS 132.310, ORS 132.320) and may compel evidence it believes will explain away a charge (ORS 132.320(9)).
The district attorney acts as the grand jury’s agent and advisor, presenting evidence and assisting as required (ORS 132.330; ORS 132.340; ORS 8.670), and must record grand jury proceedings (ORS 132.250; ORS 132.260).

Within this framework, ORS 132.320(5) expressly authorizes a grand jury to receive testimony “by means of simultaneous television transmission” that allows mutual observation and communication. The defendant’s right at issue appears in ORS 132.320(12)(a): a represented defendant who has been arraigned on an information has a right to appear before the grand jury if counsel timely serves notice before indictment.

Textual Interpretation of “Appear” in ORS 132.320(12)(a)

Applying the State v. Gaines method, the Court begins with text. It notes that “appear” means to come formally before an authoritative body and can occur in multiple modes—not solely physical presence. Historically and practically, legal “appearances” can be in person, by counsel, by affidavit, or electronically. Nothing in “appear” in ORS 132.320(12)(a) establishes an exclusive entitlement to physical presence.

Statutory Context: Consistency Across ORS 132.320 and Related Provisions

Context confirms the conclusion. Several provisions use “appearing before the grand jury” to describe witnesses whose testimony must be recorded and who must be sworn, without limiting appearance to a physical setting (see ORS 132.100; ORS 132.260(1)). Meanwhile, ORS 132.320(5) explicitly authorizes remote testimony by “simultaneous television transmission.” Reading “appear” in (12)(a) to mean “in person only” would conflict with the broader statutory usage in the same section and related provisions.

Legislative History: SB 825 (2015) and Its Purpose

ORS 132.320(12) originated as SB 825 (2015), considered alongside SB 822 (grand jury recordation). The legislative purpose, as captured in committee testimony (Sen. Kim Thatcher), was to allow a represented, arraigned defendant to “head off charges resulting from a mistake or complicated circumstances” by speaking directly to the grand jury before indictment. The sparse history does not evidence any intent to restrict the grand jury’s discretion over mode of testimony or to override ORS 132.320(5)’s allowance for simultaneous transmission.

Allocation of Decisional Authority: The Grand Jury’s Prerogative

The Court’s core holding is institutional: because the grand jury is the investigative and accusatory body, and the district attorney is its agent and advisor, neither the prosecutor nor the defendant wields unilateral power to dictate how the grand jury receives testimony. Instead, ORS 132.320(5) makes clear the grand jury may choose in-person or remote. The grand jury can be informed of this power by the court (ORS 132.070) and/or by the district attorney (ORS 132.340); and it may seek legal guidance from the court if needed (ORS 132.370).

The Court carefully limits its holding: it does not decide how the grand jury must make that choice, nor whether and how a trial court may review the grand jury’s selection in a given case. Those questions are expressly left for another day.

Mandamus Standards and Application

Mandamus compels performance of a legal duty that the law “specially enjoins”; it cannot control judicial discretion (ORS 34.110). The Court reiterates that mandamus lies to enforce obligatory, not discretionary, actions, and sometimes to correct fundamental legal error or choices outside the permissible range (Lindell v. Kalugin, 353 Or 338 (2013); HotChalk, Inc. v. Lutheran Church‑Missouri Synod, 372 Or 249 (2024); State ex rel. Maizels v. Juba, 254 Or 323 (1969); State ex rel. Ricco v. Biggs, 198 Or 413 (1953); State ex rel. Keisling v. Norblad, 317 Or 615 (1993)).

Here, because the decision about mode of testimony belongs to the grand jury, the trial court had no non-discretionary duty to order an in-person appearance. The defendant’s contrary argument—that ORS 132.320(12)(a) confers an absolute right to in-person testimony—was rejected on textual, contextual, and historical grounds. Mandamus therefore was inappropriate.

Precedents Cited and Their Influence

State v. Burleson, 342 Or 697 (2007): Emphasizes the grand jury as an accusatory body of “ordinary citizens” serving as a check on state power. This informs the Court’s structural premise that the grand jury—not the executive—controls aspects of its investigation, including how it hears witnesses.
State v. Gaines, 346 Or 160 (2009): Establishes Oregon’s textual-contextual-historical interpretive framework. The Court applies Gaines to interpret “appear” in ORS 132.320(12)(a) in harmony with related provisions authorizing remote testimony.
Lindell v. Kalugin, 353 Or 338 (2013): Reinforces mandamus as an extraordinary remedy limited to compelling non-discretionary acts or correcting fundamental errors outside the acceptable discretionary range.
HotChalk, Inc. v. Lutheran Church‑Missouri Synod, 372 Or 249 (2024): Confirms mandamus is proper only to review obligatory—not discretionary—trial court action.
State ex rel. Maizels v. Juba, 254 Or 323 (1969): Mandamus appropriate when there is a clear rule of law requiring a certain outcome on undisputed facts. Applied here to show the absence of a clear rule mandating an in-person order.
State ex rel. Ricco v. Biggs, 198 Or 413 (1953): A classic statement that mandamus cannot control judicial discretion or serve as a substitute for appellate review.
State ex rel. Keisling v. Norblad, 317 Or 615 (1993): Articulates the “fundamental legal error” and “outside the permissible range” thresholds for mandamus intervention—thresholds not met in Wall.

Impact and Practical Implications

For Defense Counsel

No unilateral right to insist on in-person testimony. A timely, written request under ORS 132.320(12)(a) secures the right to testify, but not the exclusive mode.
Strategic focus shifts to persuading the grand jury (through proper channels) or asking the court to charge or advise the grand jury about its statutory authority to choose the mode (ORS 132.070; ORS 132.370). The defense cannot communicate directly with grand jurors; motions directed to the court are the proper vehicle.
Build a record, when appropriate, on case-specific reasons why in-person testimony would aid accuracy or fairness. Although Wall leaves review questions open, a developed record positions later motions (e.g., to set aside an indictment) if the grand jury was not properly informed or if the process caused concrete prejudice.
Be mindful that Wall does not address the consequence if a defendant declines to testify remotely when the grand jury selects that mode. That remains an open question.

For Prosecutors

No unilateral control over the mode of testimony. Prosecutors must recognize that the grand jury decides, at least initially, whether to proceed in person or remotely under ORS 132.320(5).
Best practice is to accurately inform the grand jury of its options, consistent with the Court’s guidance that the grand jury may be advised by the court and/or the district attorney (ORS 132.070; ORS 132.340).
Office-wide “remote-by-default” policies must be implemented in a way that preserves the grand jury’s decisional prerogative and does not mischaracterize the law as giving the prosecutor unilateral control.
Ensure the recordation (ORS 132.250, ORS 132.260) captures that the grand jury was informed of, and exercised, its choice regarding the mode of testimony.

For Trial Courts

Courts retain authority to charge and advise grand juries regarding their powers and duties (ORS 132.070), including the option to receive testimony by simultaneous transmission (ORS 132.320(5)).
Wall does not decide the scope of trial-court review over the grand jury’s choice of mode. Where disputes arise, courts should expect motion practice testing whether the grand jury understood and exercised its statutory authority.
When staying “proceedings,” carefully delineate whether and how any stay affects the grand jury, cognizant of the grand jury’s unique position. In Wall, the Supreme Court did not reach the question whether the trial court’s stay encompassed the grand jury.

Systemic and Doctrinal Effects

Clarifies that “appear before the grand jury” in ORS 132.320(12)(a) includes remote appearance, aligning defendant appearances with the broader witness-appearance framework.
Reaffirms the grand jury’s independence as an accusatory body and the district attorney’s role as agent/advisor rather than as a controller of the process.
Signals that future litigation may address whether, and under what standards, a trial court can review or remedy a grand jury’s selection of mode, including claims of prejudice from remote testimony in particular cases.

Complex Concepts Simplified

Grand Jury: A group of citizens who decide whether there is probable cause to charge a felony. In Oregon, it is empaneled and instructed by the court and acts as a check on executive charging decisions.
“Appear” Before the Grand Jury: To present oneself formally to give testimony. In Oregon’s statutes, “appearance” encompasses in-person and remote modes; it is not limited to physical presence.
ORS 132.320(5): Allows grand juries to receive testimony by “simultaneous television transmission,” essentially live videoconferencing that allows mutual observation and communication.
ORS 132.320(12)(a): Gives a represented, arraigned defendant the right to appear as a witness before the grand jury if counsel timely requests it—this right does not include a unilateral right to in-person testimony.
Mandamus: An extraordinary writ compelling a public body or court to perform a specific, non-discretionary legal duty. It does not allow an appellate court to direct how a trial court should exercise discretion.
Alternative Writ of Mandamus: An initial order to show cause why the relief should not be granted; if the respondent does not comply, the court may decide whether to issue a peremptory writ. In Wall, the alternative writ was dismissed.
Text–Context–History (Gaines): Oregon’s method for interpreting statutes—start with the text, consider context within the statutory scheme, and examine legislative history when helpful.

Open Questions the Opinion Deliberately Leaves Unresolved

The process by which the grand jury should make the in-person vs. remote decision and what record should reflect that choice.
Whether, and under what standard, a trial court may review or set aside an indictment if the grand jury’s choice of mode was uninformed, improper, or prejudicial.
The effect of a defendant’s refusal to testify remotely if the grand jury selects remote testimony.
The extent to which a trial court’s stay order can or should encompass grand jury proceedings and the remedies for violations, if any. (Wall did not decide the propriety of the grand jury proceeding during the stay because that claim was not pursued in briefing.)

Conclusion

State v. Wall establishes a clear and important allocation of authority within Oregon’s grand jury system: the grand jury itself, not the prosecutor or the defendant, decides whether to receive a defendant’s testimony in person or by simultaneous electronic transmission. The Court’s textual, contextual, and historical analysis forecloses reading ORS 132.320(12)(a) to create a categorical, unilateral in-person right. And because no non-discretionary duty required the trial court to compel an in-person appearance, mandamus was unavailable.

The decision reinforces the grand jury’s constitutional and statutory role as an independent accusatory body and refines Oregon practice post-pandemic by clarifying that “appearance” includes remote modes consistent with ORS 132.320(5). It also invites future litigation on the procedures and standards governing the grand jury’s choice of mode and the scope of trial court review. For now, the governing principle is institutional: the grand jury’s prerogative comes first.