a. General Considerations   +
Purposeful discrimination against an identifiable group in the selection of grand juries may involve a violation of the constitutional guaranty of equal protection.
b. Fair Cross Section in General   +
It has been held that, where a grand jury is used, there is a constitutional right to the selection of the grand jury from a fair cross section of the community.
c. Jury Selection and Service Act in General   +
Under the Jury Selection and Service Act, in federal court there is a right to grand juries selected at random from a fair cross section of the community.
Accused has no right to a grand jury of any particular demographic composition. The grand jury need not be a mirror of the community.
a. In General   +
Accused establishes a prima facie case of an equal protection violation in grand jury selection by showing substantial underrepresentation of an identifiable group and a selection procedure that is susceptible to abuse or is not neutral. If a prima facie case is established, the burden shifts to the government to rebut the presumption of discnmination.
b. Fair Cross Section   +
In order to establish a prima facie violation of a fair cross section requirement with respect to grand juries, accused must show that a group is distinctive, that its representation in venires is not fair and reasonable in relation to its numbers in the community, and that this underrepresentation is due to systematic exclusion. The burden then shifts to the government to prove that the selection system furthers a significant state interest.
With respect to the prohibition on discrimination and the fair cross section requirement applicable to grand jury selection, various groups have been found cognizable, such as women and blacks.
Under the prohibition on discrimination and the fair cross section requirement applicable to grand jury selection, the exclusion or exemption of various persons has been upheld, and the excusing of grand jurors on an individualized basis generally does not result in a violation.
A "key man" system of grand jury selection is not unconstitutional per se. Random selection is not constitutionally required, but may be required by statute. Use of voter registration lists as the sole source of names of prospective grand jurors has been upheld.
Accused may challenge the exclusion of a group from jury selection and raise a claim of discrimination or violation of the fair cross section requirement even if accused is not a member of such group.
Statutory and constitutional provisions dealing with grand juror qualifications must be observed.
A grand juror must not be a minor; and his age must not exceed the maximum limit, if any, prescribed by constitutional or statutory provisions.
If the statute so provides, a person engaged in a certain business or occupation may be disqualified to serve on a grand jury.
Ordinarily, a grand juror must be a citizen of the United States. Under a statute so providing, but not otherwise, an alien who has declared his intention to become a citizen of the United States is competent to serve as a grand juror.
A person charged with, or convicted of, a crime or offense may be disqualified to serve as a grand juror.
Being a freeholder or a householder, or both, is a necessary qualification for grand jury service when, and only when, it is so provided by a statute in force at the time.
Under some statutes, a person may be disqualified to serve as a grand juror by reason of a mental or physical infirmity.
a. In General   +
Under some statutes or rules, a person shall be disqualified from serving as a grand juror in a particular case if he is biased or prejudiced.
b. Particular Matters   +
It has been held that various matters concerning interest, bias, or prejudice do not necessarily disqualify a person from grand jury service, such as a relationship with a person involved in the case.
c. Provision for Automatic Exclusion   +
Various statutes or rules preclude persons with specified types of interests in a case from serving as grand jurors in such case.
Disqualification to serve as a grand juror may arise, under the statutes, from illiteracy or insufficient knowledge of the language in which the proceedings are conducted to obtain a clear understanding of what is said and done.
Whether prior service in the same capacity during a certain period renders a person ineligible to serve as a grand juror depends on statutory provisions.
The holding of a public office does not in the absence of statute disqualify a person as a grand juror.
When so required by a constitutional or statutory provision, a grand juror must possess the qualifications of a voter or elector.
The qualifications of a grand juror are not affected by his connection or lack of connection with a political or religious organization; and the same is true as to the effect of his religious beliefs.
To be qualified as a grand juror, a person must have the required residence and, under some statutes, he must be a resident for a prescribed length of time preceding the service.
Whether assessment for, or payment of, taxes, or liability to taxation, is necessary to qualify. a person as a grand juror depends on statutory provisions.
A statutory exemption from service on a grand jury is a privilege which a prospective juror may claim or waive.
In the case of federal grand juries, volunteer safety personnel shall be excused from jury service upon individual request.
At common law the mode of selecting grand jurors was within the sheriff's discretion, but the subject is now generally regulated by statute. Substantial compliance with the statutes is usually sufficient, and mere irregularities are not fatal, particularly where the statutes are considered directory rather than mandatory.
Although the various acts connected with the selection of a grand jury should be performed at the times specified in the statute, the failure to do so does not generally vitiate the action of the grand jury. Notice of the drawing must be given as prescribed by statute.
The size of the jury panel depends on the terms of the applicable statutes. Such statutes must be followed, and departures therefrom have in some cases been held fatal to the action of the grand jury.
Grand jurors should be selected only by the officers designated by statute to perform such duty. A grand jury selected by de facto officers, or by officers who have failed to comply with directory provisions as to taking an oath, is generally considered competent to act.
There must be substantial compliance with statutes requiring prospective grand jurors to be apportioned among designated localities; but a departure from the statutory provisions is not in all cases fatal.
The integrity of the grand jury box and the list of grand jurors should be scrupulously protected. Where statutes so require, the jury lists or jury panels must be certified.
The jury list from which grand jurors are to be selected is subject to correction and revision from time to time where the governing statutes so provide.
A record must be made of the matters pertaining to the selection and drawing of grand juries where the statutes so require, but not otherwise.
The mode of summoning grand jurors, the number to be summoned, and the time of summoning, depend on the terms of the governing statutes, which must be substantially complied with. Technical irregularities, however, are not fatal, particularly under statutes which are directory merely, or which expressly limit the effect of irregularities.
The issuance and return of a writ of venire facias or similar process are required by some authorities for the summoning of a grand jury. Technical defects in the writ or return usually are not considered fatal to the legality of the grand jury.
At common law grand jurors were summoned by the sheriff, and this is still the rule in the absence of statute otherwise providing. Other officers may perform such duty, however, where the sheriff is unable to act.
Under the Jury Selection and Service Act, when the court orders a federal grand jury to be drawn, summonses shall be issued. Jurors may be served personally or by mail.
A defective grand jury panel is to be completed in the manner prescribed by statute.
In the case of a federal grand jury, if less than 16 summoned persons attend, the court shall order a sufficient number of persons to complete the grand jury.
Grand juries are to be impaneled in the manner prescribed by statute, but mere irregularities in impaneling ordinarily do not vitiate their action.
The time when the grand jury is to be organized is generally prescribed by statute.
At common law a grand jury is composed of not less than 12 nor more than 23, but the number is now very generally regulated by constitutional or statutory provisions.
a. In General   +
A grand jury is usually officered by a foreman who is appointed by the court or elected by the grand jurors.
b. Federal Grand Jury   +
In the case of a federal grand jury, the court shall appoint one of the jurors to be foreperson and another to be deputy foreperson.
a. In General   +
Discrimination in the selection of the grand jury foreman may violate equal protection, but generally does not violate due process, and accused generally lacks standing to challenge such discrimination where accused is not a member of the group discriminated against. The fair cross section requirement is inapplicable to the selection of the foreman.
b. Showing of Violation   +
In order to show that an equal protection violation has occurred in the context of grand jury foreman selection, accused generally must show that the procedure resulted in substantial underrepresentation of an identifiable group.
a. In General   +
Grand jurors must be sworn and the oath is to be administered by the officer designated by law.
b. Form of Oath; Mode of Administering   +
The form of oath required of grand jurors must be substantially observed, and in the absence of statutory directions the mode of administering the oath is a matter of practice.
c. Record of Oath   +
The administration of the oath to the grand jurors ordinarily should be shown by the record.
A court having power to excuse or discharge a grand juror after the organization of the grand jury has power to substitute another grand juror; this power of substitution is sometimes expressly conferred by statute. However, some authorities hold that substitution is improper.
After a grand jury has been organized the court may, according to some authorities, increase the number of jurors.
A challenge is a preliminary objection taken to the jurors summoned and returned to serve as grand jurors.
a. In General   +
A challenge to the panel or array is a formal objection to the entire panel of grand jurors.
b. Grounds of Challenge   +
Where statutes provide that a challenge to the array of grand jurors may be interposed for certain enumerated causes only, the courts have no power to allow challenges on other grounds.
a. In General   +
A challenge to the polls is a formal objection to one or more of the grand jurors.
b. Voir Dire   +
In connection with an objection to individual grand jurors, it has been held that accused has no right to a voir dire, although there is authority to the contrary.
At common law any person under prosecution for a crime may challenge the grand jury, and statute may authorize challenges to be made by particular persons.
Accused may waive an objection that a grand juror is disqualified.
An objection to the composition of the grand jury must be raised in a timely fashion.
The Jury Selection and Service Act contains a provision concerning challenges for noncompliance with such Act in selecting a federal grand jury.
a. Before Organization   +
The court may, in the exercise of a sound discretion, discharge or excuse a grand juror at any time before he is sworn, and this authority usually is not restricted by statutes specifying certain grounds of excusal or discharge.
b. After Organization   +
Pursuant to statutory authorization, and according to some authorities under their inherent power, the courts may excuse a grand juror after he has been sworn.
Under the Jury Selection and Service Act, a person summoned for federal grand jury service may be excused or excluded by the court on certain specified grounds.
Evidentiary rules applicable at trial are generally inapplicable in grand jury proceedings, although there is some authority to the contrary.
The right to call witnesses before the grand jury is recognized both at common law and under statute.
The principle that the public has the right to every man's evidence applies to grand jury proceedings.
With the aid of the court, the grand jury may compel the production of evidence and the testimony of witnesses. However, the grand jury cannot itself compel such production or testimony, and must rely upon the court when such compulsion is required.
Process to secure the appearance of witnesses before the grand jury is authorized or permitted under various statutes.
a. In General   +
Authorities differ as to whether a grand jury subpoena may be issued by the prosecutor rather than the court and, if so, whether the prior consent of the grand jury is required.
b. Federal Grand Jury   +
A subpoena for the attendance of a witness before a federal grand jury shall be issued by the clerk, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served.
a. In General   +
Under some statutes, a corporation which does business in the state may be subject to a grand jury subpoena.
b. Federal Grand Jury   +
In the case of a federal grand jury, a subpoena may be served by any person who is not a party and who is not less than 18 years of age, and may be served at any place within the United States.
A grand jury subpoena need not state the nature of the investigation.
A grand jury subpoena duces tecum must identify the documents demanded sufficiently clearly to permit compliance.
A grand jury may continue the appearance of a subpoenaed witness until his testimony has been completed or the need for his presence has terminated.
The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which applies to grand jury proceedings, has been adopted in all 50 states and the District of Columbia.
A grand jury need not obtain records pertaining to the accounts of bank customers from the customers themselves, and may obtain such records from the bank.
The grand jury or the prosecutor may retain documents subpoenaed by the grand jury, at least for a limited period of time.
Under the Right to Financial Privacy Act, financial records about a customer obtained from a financial institution pursuant to a federal grand jury subpoena generally shall be returned and actually presented to the grand jury.
Courts are empowered to take actions necessary to enforce grand jury subpoenas.
Action by the grand jury itself, as distinct from the prosecutor may be a prerequisite to compulsion of a witness by the court.
In the case of a federal grand jury, if it appears from an affidavit that the testimony of a person is material, and if it is shown that it may be impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person.
In some circumstances a court may quash or modify a grand jury subpoena.
A full evidentiary hearing is not necessarily required on a motion to quash a grand jury subpoena.
A grand jury subpoena is presumptively valid, and the burden is on the unwilling witness to show that the subpoena should be quashed.
It has been said that a grand jury witness is not entitled to challenge the authority of the court or of the grand jury or to set limits to the investigation that the grand jury may conduct.
A motion to quash a federal grand jury subpoena duces tecum on relevancy grounds must be denied unless there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject of the grand jury's investigation.
A grand jury subpoena duces tecum may require the production of documents covering only a reasonable period of time.
A court generally will compel a grand jury witness to provide evidence even if the prosecutor has an alternative source from which such information can be obtained, or such information is already in the possession of the prosecutor or the grand jury.
A grand jury may subpoena the same witness on more than once occasion.
A court will not enforce a grand jury subpoena if compliance would be oppressive.
A court will not enforce a grand jury subpoena where it is used for the sole or dominant purpose of gathering evidence for civil enforcement or of preparing a pending indictment for trial.
Authorities differ as to whether a special burden should be placed on the government where a grand jury subpoena potentially implicates First Amendment freedoms.
A grand jury witness must provide evidence notwithstanding his fear for his safety or that of his family, and notwithstanding that doing so may result in an unwelcome disclosure of his private affairs or in embarrassment.
A person generally does not have standing to seek to quash a grand jury subpoena directed to another person. However, in some circumstances a person does have such standing.
A mere order to provide evidence to a grand jury, as distinct from a contempt order, is generally not appealable, although there is authority to the contrary. However, where the subpoena is directed to a third party, a person claiming a protected interest with respect to the evidence sought may appeal, although there is authority to the contrary.
A grand jury subpoena may not be used to violate a valid privilege arising under a constitution, a statute, or the common law. In the case of a federal grand jury, privilege is governed largely by federal common law.
The party asserting a privilege with respect to evidence sought by a grand jury has the burden of demonstrating its applicability.
Authorities differ regarding the existence of a parent-child privilege in grand jury proceedings.
Some authorities recognize in grand jury proceedings a privilege against adverse spousal testimony or a privilege for confidential marital communications.
Some authorities recognize a privilege for newspersons in grand jury proceedings.
a. In General   +
An attorney client privilege applies in grand jury proceedings. The privilege is inapplicable where the relationship is used to further crime or fraud.
b. Effect of Constitutional Right to Counsely   +
Where adversary proceedings against a person have commenced, so that his Sixth Amendment right to counsel has attached, a grand jury subpoena to his attorney may in some circumstances improperly interfere with this right.
The work product doctrine, which limits the discoverability of material prepared in anticipation of litigation, has been held applicable to grand jury proceedings, although there is some authority to the contrary.
Some authorities recognize a physician-patient or psychotherapist-patient privilege in grand jury proceedings.
Some authorities recognize a privilege for tax records in grand jury proceedings.
Various privileges have been recognized in grand jury proceedings, such as a privilege for certain communications to a clergyman.
A grand jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search or seizure.
A grand jury witness may refuse to testify on the ground that questions are based on information obtained in violation of a federal statute concerning wire, electronic, and oral communication interception.
a. In General   +
Where a grand jury witness refuses to testify on the ground that questions are based on information obtained through unlawful interception, the court rather than the grand jury must resolve the issues raised by such refusal.
b. Federal Grand Jury   +
Where a federal grand jury witness claims that questions are based on information obtained through unlawful interception, the government must affirm or deny the occurrence of the alleged unlawful act.
Violation of a court order to provide evidence to a grand jury constitutes contempt of court.
Even where a grand jury witness makes a formal answer, the answer may in some circumstances be tantamount to a refusal to answer and constitute a contempt.
A grand jury witness may he held in civil contempt, criminal contempt, or both. A civil contempt sanction is designed to coerce future compliance and can be terminated by such compliance, while a criminal contempt sanction is designed to punish past disobedience and is not automatically terminated by compliance.
Refusal by a grand jury witness to answer a question constitutes contempt only in the case of a legal and proper interrogatory.
a. In General   +
Only the court, and not the grand jury, may ajudicate a contempt by a grand jury witness.
b. Particular Matters   +
In a contempt proceeding a grand jury witness is entitled to notice, a reasonable opportunity to prepare and present defenses, and a hearing.
In a grand jury witness contempt proceeding, under the general rules of evidence, any relevant and material evidence otherwise competent is admissible.
a. In General   +
In a civil contempt proceeding concerning a grand jury witness, the court may order the confinement of the witness.
b. Duration of Sanction   +
In a civil contempt proceeding concerning a grand jury witness, the witness generally can be confined until and only until he purges himself by compliance, but cannot be confined beyond the term of the grand jury. In a federal civil contempt proceeding, confinement cannot exceed 18 months.
c. Requirement That Sanction Be Potentially Effective   +
In a civil contempt proceeding concerning a grand jury witness, confinement should not be imposed or continued unless there is a realistic possibility that confinement may cause the witness to testify.
In a criminal contempt proceeding concerning a grand jury witness, the fact that the witness is motivated by fear is a factor in mitigation of punishment.
In a civil contempt proceeding concerning a grand jury witness, an order holding the witness in contempt is appealable, at least where the witness is committed for contempt.
For all ordinary purposes of procuring evidence, a grand jury is clothed with authority to conduct the examination of witnesses in any way that does not conflict with established legal rules.
Ordinarily, a witness must be sworn before he may be examined before the grand jury.
In a grand jury proceeding, accused or the person under investigation generally has no right to cross-examine or confront the prosecutor's witnesses.
Authorities differ as to whether grand jury witnesses should be given certain warnings.
In a grand jury proceeding, the prosecutor has wide discretion in determining what evidence or witnesses will be presented.
a. In General   +
While it has been held that, in a grand jury proceeding, the prosecutor need not present exculpatory evidence, it has also been held that the prosecutor must present exculpatory evidence or that the grand jury must order the production of such evidence if it has reason to believe that such evidence is in reach.
b. Type of Evidence Covered   +
Authorities who hold that exculpatory evidence must be presented in a grand jury proceeding nevertheless hold that the prosecutor need not present all evidence favorable to accused.
In a grand jury proceeding, accused or the person under investigation has no right to present evidence or to have witnesses heard.
Authorities differ as to whether evidence inadmissible at trial is admissible in a grand jury proceeding.
a. In General   +
Evidence is admissible in a grand jury proceeding even though it was obtained as a result of an illegal search or seizure.
b. Wiretapping or Other Interception   +
While a federal statute concerning wire, electronic, and oral communication interception precludes the admission in a grand jury proceeding of evidence obtained in violation of the statute, a person cannot use the statute to obtain the suppression of evidence in a grand jury proceeding, as distinct from using the statute as a ground for refusing to answer questions.
Some authorities hold that the grand jury is the judge of the competency of evidence in grand jury proceedings. Some statutes permit the prosecutor to rule on the competency of witnesses or the admissibility of evidence.
The grand jury is the judge of the sufficiency of the evidence before it.
Some authorities hold that a grand jury's determination may rest exclusively on hearsay.
Grand jury proceedings are conducted in secret, and generally must remain or be kept secret.
Reasons for grand jury secrecy include to prevent escape; to insure freedom of deliberations and prevent the importuning of grand jurors, to prevent subornation of perjury or witness tampering; to encourage disclosures by witnesses; and to protect the innocent accused from disclosure of the fact that he has been under investigation.
a. In General   +
The prohibition on disclosure of information concerning grand jury proceedings applies to grand jurors, and may apply to certain other persons.
b. Federal Grand Jury   +
In the case of a federal grand jury, certain enumerated persons generally shall not disclose matters occurring before the grand jury, but witnesses are not under the prohibition on disclosure.
The requirement of grand jury secrecy applies to anything which might reveal what occurred before the grand jury.
The principle of grand jury secrecy is not absolute, and disclosure is proper in some circumstances.
a. In General   +
Some statutes or rules of court authorize disclosure of grand jury material without a court order in certain circumstances.
b. Federal Grand Jury   +
Disclosure of matters occurring before a federal grand jury generally may be made, without court approval, to a government attorney for use in the conduct of the same criminal matters; to government personnel assisting a government attorney in enforcing federal criminal law; or to another federal grand jury.
a. In General   +
Under some statutes or rules of court, disclosure of grand jury material may be made when the court, preliminary to or in connection with a judicial proceeding, directs such disclosure.
b. Federal Grand Jury   +
Disclosure otherwise prohibited of matters occurring before a federal grand jury may be made when so directed by a court preliminarily to or in connection with a judicial proceeding.
Parties seeking protected grand jury material generally must show that the material is needed to avoid a possible injustice in another proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only the material needed.
A particularized need for disclosure of grand jury material does not exist merely because such material is rationally related to litigation. In considering the effects of disclosure, the court must consider the possible effect upon the functioning of future grand juries.
Authorities differ regarding the existence of a privilege to refuse to disclose matters occurring before a grand jury.
The interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities. A grand jury witness may not be prohibited from disclosing his own testimony after the grand jury's term has ended.
a. In General   +
Pursuant to the requirement of grand jury secrecy, some authorities hold that accused cannot examine a grand jury witness or a grand juror in order to show the nature and character of the evidence on which an indictment was based.
b. Federal Grand Jury   +
Disclosure of matters occurring before a federal grand jury may be made when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
When disclosure of grand jury proceedings is permitted, it is to be done discreetly and limitedly. The court may impose protective limitations on the use of the disclosed material.
a. In General   +
The burden of proof is upon the party seeking disclosure of protected grand jury material to justify such disclosure.
b. Federal Grand Jury   +
A petition for a court order directing disclosure of matters occurring before a federal grand jury preliminarily to or in connection with a judicial proceeding shall be filed in the district where the grand jury convened.
A violation of the grand jury secrecy requirement may be treated as contempt.
Remedies for violation of federal grand jury secrecy may include equitable relief or a curative order to prevent the use of improperly disclosed material.
A knowing violation of the provision of the Federal Rules of Criminal Procedure concerning federal grand jury secrecy may be punished as a contempt of court.
A prima facie showing of a violation of the federal grand jury secrecy requirement is made when media reports contain information about matters occurring before the grand jury and indicate that the sources of information include persons subject to the secrecy requirement.