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PURPOSE
OF THIS HANDBOOK
ORIGIN
AND HISTORY OF THE GRAND JURY
NATURE
OF THE GRAND JURY
(1) The Grand Jury's Tasks
(2) Investigation
SELECTION
OF GRAND JURORS
ORGANIZATION,
OATH, AND OFFICERS OF THE FEDERAL GRAND JURY
PROCEDURE
(1) Quorum
(2) Evidence Before the
Grand Jury
(3) Questioning the Witness
(4) Calling the Person
Under Investigation as a Witness
(5) The
Evidence Needed Before a "True Bill" May Be Voted
(6) Deliberations
SECRECY
PROTECTION
OF GRAND JURORS
PRACTICAL
SUGGESTIONS FOR GRAND JURORS
GLOSSARY
OF TERMS
HANDBOOK
FOR FEDERAL GRAND JURORS
PURPOSE OF
THIS HANDBOOK
This Handbook will acquaint
persons who have been selected to serve on a federal grand jury
with the general nature and importance of their role as grand
jurors. It explains some of the terms that grand jurors will
encounter during their service and offers some suggestions helpful
to them in performing this important public service. It is intended
that this Handbook will, to
a degree, repeat and provide a permanent record of much of the
information presented in the grand jury orientation film, The
People's Panel, which in most districts is shown to grand
jurors at the commencement of their service. Grand jurors are
encouraged to refer to this Handbook periodically throughout
their service to reacquaint themselves with their duties and
responsibilities.
This Handbook is designed
as an aid only to persons serving on a federal - not a state
- grand jury. The federal grand jury is concerned only with federal
crimes; it derives its authority from the Constitution of the
United States, national laws, and the rules of the federal courts.
There are also grand juries impaneled in many of the states,
but those grand juries investigate only state crimes; they derive
their authority from the constitutions, laws, and rules of court
of the states where they are impaneled.
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ORIGIN
AND HISTORY OF
THE GRAND JURY
The grand jury has a long
and honorable tradition. It was recognized in the Magna Carta,
the first English Constitutional document, which King John granted
in 1215 at the demand of his subjects. The first English grand
jury consisted of twelve men selected from the knights or other
freemen, who were summoned to inquire into crimes alleged to
have been committed in their local community. Thus, grand jurors
originally functioned as accusers or witnesses, rather than as
judges.
Over the years, the hallmarks
of our modern grand jury developed in England. For example, grand
jury proceedings became secret, and the grand jury became independent
of the Crown. As a result, a grand jury is able to vote an indictment
or refuse to do so, as it deems proper, without regard to the
recommendations of judge, prosecutor, or any other person. This
independence from the will of the government was achieved only
after a long hard fight. It can best be illustrated by the celebrated
English case involving the Earl of Shaftesbury, who, in 1681,
fell under the suspicion of the Crown. Displeased with him, the
Crown presented to the grand jury a proposed bill of indictment
for high treason and recommended that it be voted and returned.
After hearing the witnesses, the grand jury voted against the
bill of indictment and returned it to the King, holding that
it was not true.
When the
English colonists came to America, they brought with them many
of the institutions
of the English legal system, including the grand jury. Thus,
the English tradition of the grand jury was well established
in the American colonies long before the American Revolution.
Indeed, the colonists used it as a platform from which to assert
their independence from the pressures of colonial governors.
In 1735, for example, the Colonial Governor of New York demanded
that a grand jury indict for libel John Zenger, editor of a newspaper
called "The Weekly Journal," because he had held up
to scorn certain acts of the Royal Governor. The grand jury flatly
refused.
The grand
jury as an institution was so firmly established in the traditions
of our forebears
that they included it in the Bill of Rights. The Fifth Amendment
to the Constitution of the United States provides in part that "[n]o
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury......" Moreover,
the grand jury system is also recognized in the constitutions
of many of the states of the Union.
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NATURE OF
THE GRAND JURY
The powers
and functions of the federal grand jury differ from those of
the federal trial
jury, which is called the petit jury. The petit jury listens
to the evidence offered by the prosecution and the defense (if
it chooses to offer any) during a criminal trial and returns
a verdict of guilty or not guilty. The grand jury, on the other
hand, does not determine guilt or innocence, but only whether
there is probable cause to believe that a crime was committed
and that a specific person or persons committed it. If the grand
jury finds probable cause to exist, then it will return a written
statement of the charges called an "indictment." After
that, the accused will go to trial.
The grand
jury normally hears only that evidence presented by an attorney
for the government
which tends to show the commission of a crime. The grand jury
must determine from this evidence, and usually without hearing
evidence for the defense, whether a person should be tried for
a serious federal crime, referred to in the Bill of Rights as
an "infamous crime." An infamous crime is one which
may be punished by imprisonment for more than one year. As a
general rule, no one can be prosecuted for a serious crime unless
the grand jury decides that the evidence it has heard so requires.
In this way, the grand jury operates both as a "sword," authorizing
the government's prosecution of suspected criminals, and also
as a "shield," protecting citizens from unwarranted
or inappropriate prosecutions. A person may, however, waive grand
jury proceedings and agree to be prosecuted by a written charge
of crime called an information.
The grand jury is not completely
free to compel a trial of anyone it chooses. The United States
Attorney must sign the indictment before one may be prosecuted.
Thus, the government and the grand jury act as checks upon each
other. This assures that neither may arbitrarily wield the awesome
power to indict a person of a crime.
(1) The Grand Jury's
Tasks
As stated above, the federal
grand jury's function is to determine whether a person shall
be tried for a serious federal crime alleged to have been committed
within the district where it sits. Matters may be brought to
its attention in three ways: (1) by the United States Attorney
or an Assistant United States Attorney; (2) by the court that
impaneled it; and (3) from the personal knowledge of a member
of the grand jury or from matters properly brought to a member's
personal attention. In all these cases, the grand jury must hear
evidence before taking action.
After it
has received evidence against a person, the grand jury must decide
whether the evidence
presented justifies an indictment, or "true bill," which
is the formal criminal charge returned by the grand jury. Upon
the indictment's being filed in court, the person accused must
either plead guilty or nolo contenders or stand trial.
If the
evidence does not persuade the grand jury that there is probable
cause to believe
the person committed a crime, the grand jury will vote a "no
bill," or "not a true bill." When this occurs,
the person is not required to plead to a criminal charge, and
no trial is required.
(2) Investigation
The major portion of the
grand jury's work is concerned with evidence brought to its attention
by an attorney for the government. The grand jury may consider
additional matters otherwise brought to its attention, but should
consult with the
United States Attorney
or the court before undertaking a formal investigation of such
matters. This is necessary because the grand jury has no investigative
staff, and legal assistance will be necessary in the event an
indictment is voted.
It should
be borne in mind that a federal grand jury can take action only
upon federal crimes
that have been committed within the district in which it has
been impaneled. Furthermore, a federal grand jury (except a special
grand jury impaneled under 18 U.S.C. §§3331-3334) is not authorized
to investigate situations involving the conduct of individuals,
public officials, agencies or institutions that the grand jury
believes is subject to mere criticism rather than a violation
of federal criminal statutes. Its concern must be devoted solely
to ascertaining whether there is probable cause to believe that
a federal crime has been committed and to report accordingly
to the court.
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SELECTION OF
GRAND JURORS
Federal law
requires that a grand jury be selected at random from a fair
cross section of the community in the district or division in
which the federal grand jury convenes. Thus, all citizens have
an equal opportunity and obligation to serve.
Pursuant to law, the names
of prospective grand jurors are drawn at random from lists of
registered voters or lists of actual voters, or other sources
when necessary, under procedures designed to ensure that all
groups in the community will have a fair chance to serve. Those
persons whose names have been drawn and who are not exempt or
excused from service are summoned to appear for duty as grand
jurors. When these persons appear before the court, the presiding
judge may consider any further requests to be excused. The judge
will then direct the selection of 23 qualified persons to become
the members of the grand jury.
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ORGANIZATION,
OATH, AND OFFICERS
OF THE FEDERAL GRAND JURY
After the proper number
of persons have been qualified as grand jurors, the court will
appoint one of them to be the foreperson, or presiding officer,
of the grand jury. A deputy foreperson will also be appointed,
so that he or she can act as presiding officer in the foreperson's
absence.
The foreperson, the deputy
foreperson, and the remaining members of the grand jury are sworn
in by the Clerk of the Court. Those persons who do not wish to
swear may affirm.
The oath taken by the grand
jurors binds them to inquire diligently and objectively into
all federal crimes committed within the district of which they
have or may obtain evidence and to conduct such inquiry without
malice, fear, hatred, or other emotion.
After the grand jurors
have been sworn, the presiding judge advises the grand jury of
its obligations and how best to perform its duties. This is called
the charge to the grand jury. Careful attention must be paid
to the charge, for it and any additional instructions that may
be given by the court contain the rules and directions the grand
jury must follow during its term of service.
After the grand jury has
been charged, it is taken to the grand jury room, where it will
hear testimony and consider documentary evidence in the cases
brought to its attention by the United States Attorney or an
Assistant United States Attorney.
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PROCEDURE
(1) Quorum
Sixteen of the 23 members
of the grand jury constitute a quorum for the transaction of
business. If fewer than this number are present, even for a moment,
the proceedings of the grand jury must stop. This shows how important
it is that each grand juror conscientiously attend the meetings.
If an emergency will prevent a grand juror's attendance at the
meeting, he or she must promptly advise the grand jury foreperson.
If the juror's absence will prevent the grand jury from acting,
the grand juror should, if at all possible, attend the meeting.
(2) Evidence Before
the Grand Jury
Much of the grand jury's
time is spent hearing testimony by witnesses and examining documentary
or other evidence in order to determine whether such evidence
justifies an indictment.
Each federal court district
has a United States Attorney whose duty it is to represent the
United States in federal matters within the district and to prosecute
those accused of federal crimes. In the usual case, the United
States Attorney or one of the Assistant United States Attorneys
will present the evidence of alleged violations of the law to
the grand jury. These attorneys also advise grand jurors as to
what witnesses should be called and what documentary evidence
should be produced for examination by the grand jury. The grand
jury may ask that additional witnesses be called if it believes
this necessary. The United States Attorney will also prepare
the formal written indictments that the grand jury wishes to
present. But neither the United States Attorney nor any Assistant
United States Attorney may remain in the room while the grand
jury deliberates and votes on an indictment.
(3) Questioning
the Witness
Witnesses are called to
testify one after another. Upon appearing to give testimony,
each witness will be sworn by the grand jury foreperson or, in
the foreperson's absence, the deputy foreperson. The witness
will then be questioned. Ordinarily, the attorney for the government
questions the witness first, followed next by the foreperson
of the grand jury. Then, the other member', of the grand jury
may question the witness.
All questions asked of
each witness must be relevant and proper, relating only to the
case under investigation. If doubt should arise as to whether
a question is appropriate, the advice of the United States Attorney
may be sought. If necessary, a ruling may be obtained from the
court.
Because of the need for
secrecy, described in more detail in the following section, the
law forbids anyone other than authorized persons from being present
in the grand jury room while evidence is being presented. This
means that only the grand jury, the United States Attorney or
the Assistant United States Attorney, the witness under examination,
the court reporter, and the interpreter (if the foreperson determines
one is required) may be present. If an indictment should ultimately
be voted, the presence of unauthorized persons in the grand jury
room could invalidate it.
Occasionally, prior to
answering a question, a witness may ask to leave the grand jury
room to consult with his or her attorney. The grand jury is to
draw no adverse inference from such conduct, for every witness
has the right to confer with counsel even though counsel may
not be present in the grand jury room. In fact, a witness may
confer with counsel after each question, as long as he or she
does not make a mockery of the proceedings or does not, by such,
make an attempt to impede the orderly progress of the grand jury
investigation.
Additionally, a witness
who is appearing before the grand jury may invoke the Fifth Amendment
privilege against self-incrimination and refuse to answer a question.
In such a situation, the grand jurors may bring the matter before
the court in order to obtain a ruling as to whether or not the
answer may be compelled. One manner in which an answer may be
compelled is by granting the witness immunity from prosecution
in exchange for the witness' testimony.
(4) Calling the
Person Under Investigation as a Witness
Normally,
neither the person under investigation (sometimes referred to
as the "accused," although
this does not imply he or she is guilty of any crime) nor any
witness on the accused's behalf will testify before the grand
jury.
Upon request, preferably
in writing, an accused may be given the opportunity by the grand
jury to appear before it. An accused who does so appear cannot
be forced to testify because of the constitutional privilege
against self-incrimination. If the grand jury attempts to force
the accused to testify, an indictment returned against that person
may be nullified.
Because the appearance
of an accused before the grand jury may raise complicated legal
problems, a grand jury that desires to request or to permit an
accused to appear before it should consult with the United States
Attorney and, if necessary, the court before proceeding.
Even if the accused is
willing to testify voluntarily, it is recommended that he or
she first be warned of the right not to testify. Also, he or
she may.be required to sign a formal waiver of this right. The
grand jury should be completely satisfied that the accused fully
understands what he or she is doing.
(5)
The Evidence Needed Before a "True Bill" May Be Voted
It is the responsibility
of the grand jury to weigh the evidence presented to it in order
to determine whether this evidence, usually without any explanation
being offered by the accused, persuades it that there is probable
cause to believe that a crime has been committed and that the
accused was the person who committed it. Remember that the grand
jury is not responsible for determining whether the accused is
guilty beyond a reasonable doubt, but only whether there is sufficient
evidence of probable cause to justify bringing the accused to
trial. Only the evidence presented to the grand jury in the grand
jury room may be considered in determining whether to vote an
indictment.
(6) Deliberations
When the grand jury has
received all the evidence on a given charge, all persons other
than the members of the grand jury must leave the room so that
the grand jury may begin its deliberations. The presence of any
other person in the grand jury room while the grand jury deliberates
or votes may nullify an indictment returned on the accusation.
After all persons other
than the grand jury members have left the room, the foreperson
will ask the grand jury members to discuss and vote upon the
question of whether the evidence persuades the grand jury that
a crime has probably been committed by the person accused and
that an indictment should be returned. Every grand juror has
the right to express his or her view of the matter under consideration,
and grand jurors should listen to the comments of all their fellow
grand jurors before making up their mind. Only after each grand
juror has been given the opportunity to be heard will the vote
be taken. It should be remembered that at least 16 jurors must
be present and 12 members must vote in favor of the indictment
before it may be returned.
The foreperson
of the grand jury must keep a record of the number of jurors
concurring in
the finding of every indictment and file the record with the
Clerk of the Court. If an indictment is found, the grand jury
will report it to the judge or a magistrate in open court. It
will likewise report any "not true bills," or decisions
not to indict. A decision not to indict should immediately be
reported to the court in writing by the foreperson so that the
accused may promptly be released from jail or freed from bail.
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SECRECY
The law imposes upon each
grand juror a strict obligation of secrecy. This obligation is
emphasized in the oath each grand juror takes and in the charge
given to the grand jury by the judge.
The tradition of secrecy
continues as a vital part of the grand jury system for many reasons.
It protects the grand jurors from being subjected to pressure
by persons who may be subjects of investigations by the grand
jury or associates of such persons. It prevents the escape of
those against whom an indictment is being considered. It encourages
witnesses before the grand jury to give full and truthful information
as to the commission of a crime. It also prevents tampering with
or intimidation of such witnesses before they testify at trial.
Finally, it prevents the disclosure of investigations that result
in no action by the grand jury and avoids any stigma the public
might attach to one who is the subject of a mere investigation
by the grand jury.
Essentially, the grand
jury may disclose matters occurring before it only to the attorneys
for the government for use in the performance of their duties,
but even attorneys for the government may not be informed of
what took place during the grand jury's deliberations and voting.
The only other time matters occurring before the grand jury may
be disclosed to anyone is when disclosure is ordered by the court
in the interests of justice. Disclosure of such matters may never
be made to grand juror's friends or family, including a grand
juror's spouse.
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PROTECTION OF
GRAND JURORS
The secrecy imposed upon
grand jurors is a major source of protection for them. In addition,
no inquiry may be made to learn what grand jurors said or how
they voted, except upon order of the court.
The law gives the members
of a grand jury broad immunity for actions taken by them within
the scope of their authority as grand jurors.
Because of this immunity,
all grand jurors must perform their duties with the highest sense
of responsibility.
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PRACTICAL
SUGGESTIONS FOR
GRAND JURORS
Each grand
juror should attend the grand jury sessions regularly, in order
to ensure that a quorum of 16 members will be present to conduct
the grand jury's business.
Each grand juror should
be on time for each meeting so that others are not kept waiting.
The time of meetings should
be scheduled so as to be convenient for the grand jury, the United
States Attorney, and the witnesses.
Witnesses should be treated
courteously when they appear before the grand jury. Questions
should be put to them in an orderly fashion. The United States
Attorney should complete his or her questioning of each witness
before the foreperson asks questions. The remaining grand jurors
will then have a chance to ask relevant and proper questions.
Each grand juror has an
equal voice in determining whether or not an indictment should
be returned. Therefore, it is important that all grand jurors
pay close attention to the testimony and other evidence presented.
Each grand juror must be
absolutely fair in his or her judgment of the facts. Otherwise,
the grand juror will defeat the democratic purpose the grand
jury is designed to serve.
During deliberations on
a case, each grand juror should feel free to express his or her
opinion based upon the evidence.
Each juror has equal duties
and responsibilities, and each is entitled to be satisfied with
the evidence before being called upon to vote. No juror has the
right to dismiss a witness or to shut off proper discussion if
other jurors wish to pursue the matter further.
No grand jury should undertake
to investigate matters outside its proper scope merely because
someone suggested an investigation, or because the investigation
would be interesting.
No grand juror should discuss
the cases under investigation with anyone, except fellow grand
jurors and the United States Attorney or the Assistant United
States Attorney, and then only in the grand jury room. Of course,
the grand jurors may always seek the advice of the judge.
Finally, every citizen
who is selected to serve on a federal grand jury should bring
to this task the determination to participate in a responsible
manner and to make every effort to ensure that the grand jury
will be a credit not only to the community it represents but
to the United States.
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GLOSSARY OF
TERMS
Accused:
The person
accused of the commission of a federal crime. Use of this term
does not imply
the person under investigation is guilty of any crime. After
a person is indicted by the grand jury, that person is referred
to as the "defendant."
Charge to the Grand
Jury:
Given by the judge presiding
over the selection and organization of the grand jury, the charge
is the court's instructions to the grand jury as to its duties,
functions, and obligations, and how to best perform them.
Deliberations:
The discussion by the grand
jury members as to whether or not to return an indictment on
a given charge against an accused. During deliberations no one
except the grand jury members may be present.
District:
The geographical area over
which the federal district court where the grand jury sits and
the grand jury itself have jurisdiction. The territorial limitations
of the district will be explained to the grand jury by the district
judge.
Evidence:
Testimony of witnesses,
documents, and exhibits as presented to the grand jury by an
attorney for the government or otherwise properly brought before
it. In some instances, the person under investigation may also
testify.
Federal:
The national government
as distinguished from the state governments.
Grand Jurors' Immunity:
Immunity is granted to
all grand jurors for their authorized actions while serving on
a federal grand jury and means that no grand juror may be penalized
for actions taken within the scope of his or her service as a
grand juror.
Indictment:
The written formal charge
of a crime by the grand jury, returned when 12 or more grand
jurors vote in favor of it.
Information:
The written formal charge
of crime by the United States Attorney, filed against an accused
who, if charged with a serious crime, must have knowingly waived
the requirement that the evidence first be presented to a grand
jury.
"No Bill":
Also referred
to as "not
a true bill," the "no bill" by the grand jury
not to indict a person.
Petit Jury:
The trial jury, composed
of 12 members, that hears a case after indictment and renders
a verdict or decision after hearing the prosecution's entire
case and whatever evidence the defendant chooses to offer.
Probable Cause:
The finding necessary in
order to return an indictment against a person accused of a federal
crime. A finding of probable cause is proper only when the evidence
presented to the grand jury, without any explanation being offered
by the accused, persuades 12 or more grand jurors that a federal
crime has probably been committed by the person accused.
Quorum for Grand
Jury to Conduct Business:
Sixteen of the 23 members
of a federal grand jury must at all times be present at a grand
jury session in order for the grand jury to be able to conduct
business.
United States Attorney:
The chief legal officer
for the United States government in each federal district.
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