grand jury handbook

24
HANDBOOK HANDBOOK HANDBOOK HANDBOOK HANDBOOK FOR FOR FOR FOR FOR FEDERAL FEDERAL FEDERAL FEDERAL FEDERAL GRAND GRAND GRAND GRAND GRAND JURORS JURORS JURORS JURORS JURORS

Upload: united-states-courts

Post on 28-Mar-2016

256 views

Category:

Documents


1 download

DESCRIPTION

Grand Jury Handbook

TRANSCRIPT

Page 1: Grand Jury Handbook

HANDBOOKHANDBOOKHANDBOOKHANDBOOKHANDBOOKFORFORFORFORFOR

FEDERALFEDERALFEDERALFEDERALFEDERALGRANDGRANDGRANDGRANDGRANDJURORSJURORSJURORSJURORSJURORS

Page 2: Grand Jury Handbook

Prepared for the use of grand jurors serving inthe United States district courts under thesupervision of the Judicial Conference of the UnitedStates. Published by the Administrative Office ofthe United States Courts, Washington, D.C. 20544.

Page 3: Grand Jury Handbook

CONTENTSPURPOSE OF THIS HANDBOOK........................ 1

ORIGIN AND HISTORY OF THE GRAND JURY..... 1

NATURE OF THE GRAND JURY .......................... 3

(1) The Grand Jury’s Tasks ......................... 4

(2) Investigation ....................................... 5

SELECTION OF GRAND JURORS ........................ 6

ORGANIZATION, OATH, AND OFFICERS OF THEFEDERAL GRAND JURY ..................................... 6

PROCEDURE .................................................... 7

(1) Quorum .............................................. 7

(2) Evidence Before the Grand Jury ............ 7

(3) Questioning the Witness ...................... 8

(4) Calling the Person Being Investigated bythe Government as a Witness ............... 9

(5) The Evidence Needed Before a “True Bill”May Be Voted .................................... 10

(6) Deliberations......................................11

SECRECY ........................................................ 12

PROTECTION OF GRAND JURORS ................... 13

PRACTICAL SUGGESTIONS FORGRAND JURORS .............................................. 13

GLOSSARY OF TERMS ..................................... 16

Page 4: Grand Jury Handbook
Page 5: Grand Jury Handbook

1

PURPOSE OF THIS HANDBOOKThis Handbook will acquaint persons who

have been selected to serve on a federal grand jurywith the general nature and importance of theirrole as grand jurors. It explains some of the termsthat grand jurors will encounter during their serviceand offers some suggestions helpful to them inperforming this important public service. It isintended that this Handbook will, to a degree,repeat and provide a permanent record of much ofthe information presented in the grand juryorientation film, The People’s Panel, which in mostdistricts is shown to grand jurors at thecommencement of their service. Grand jurors areencouraged to refer to this Handbook periodicallythroughout their service to reacquaint themselveswith their duties and responsibilities.

This Handbook is designed as an aid only topersons serving on a federal - not a state - grandjury. The federal grand jury is concerned only withfederal crimes; it derives its authority from theConstitution of the United States, national laws,and the rules of the federal courts. There are alsogrand juries impaneled in many of the states, butthose grand juries investigate only state crimes;they derive their authority from the constitutions,laws, and rules of court of the states where they areimpaneled.

ORIGIN AND HISTORY OF THEGRAND JURY

The grand jury has a long and honorabletradition. It was recognized in the Magna Carta,the first English constitutional document, whichKing John granted in 1215 at the demand of hissubjects. The first English grand jury consisted oftwelve men selected from the knights or otherfreemen, who were summoned to inquire intocrimes alleged to have been committed in theirlocal community. Thus, grand jurors originallyfunctioned as accusers or witnesses, rather than as

Page 6: Grand Jury Handbook

2

judges.

Over the years, the hallmarks of our moderngrand jury developed in England. For example,grand jury proceedings became secret, and thegrand jury became independent of the Crown. Asa result, a grand jury is able to vote an indictmentor refuse to do so, as it deems proper, withoutregard to the recommendations of judge,prosecutor, or any other person. Thisindependence from the will of the government wasachieved only after a long hard fight. It can best beillustrated by the celebrated English case involvingthe Earl of Shaftasbury, who, in 1681, fell underthe suspicion of the Crown. Displeased with him,the Crown presented to the grand jury a proposedbill of indictment for high treason andrecommended that it be voted and returned. Afterhearing the witnesses, the grand jury voted againstthe 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 ofthe English legal system, including the grand jury.Thus, the English tradition of the grand jury waswell established in the American colonies longbefore the American Revolution. Indeed, thecolonists used it as a platform from which to asserttheir independence from the pressures of colonialgovernors. In 1735, for example, the ColonialGovernor of New York demanded that a grand juryindict for libel John Zenger, editor of a newspapercalled “The Weekly Journal,” because he had heldup to scorn certain acts of the Royal Governor. Thegrand jury flatly refused.

The grand jury as an institution was so firmlyestablished in the traditions of our forebears thatthey included it in the Bill of Rights. The FifthAmendment to the Constitution of the UnitedStates provides in part that “(n)o person shall beheld to answer for a capital, or otherwise infamouscrime, unless on a presentment or indictment of a

Page 7: Grand Jury Handbook

3

Grand Jury . . . .” Moreover, the grand jury systemis also recognized in the constitutions of many ofthe states of the Union.

NATURE OF THE GRAND JURYThe powers and functions of the federal grand

jury differ from those of the federal trial jury, whichis called the petit jury. The petit jury listens to theevidence offered by the prosecution and thedefense (if it chooses to offer any) during acriminal trial and returns a verdict of guilty or notguilty. The grand jury, on the other hand, does notdetermine guilt or innocence, but only whetherthere is probable cause to believe that a crime wascommitted and that a specific person or personscommitted it. If the grand jury finds probablecause to exist against a person suspected of havingcommitted the crime, then it will return a writtenstatement of the charges called an “indictment.”After that, the person will go to trial.

The grand jury normally hears only thatevidence presented by a government attorneywhich tends to show the commission of a crime.The government attorney usually is the UnitedStates Attorney or and Assistant United StatesAttorney in the federal district. The grand jurymust determine from this evidence, and usuallywithout hearing evidence for the defense, whetherthe person being investigated by the governmentshould be tried for a serious federal crime, referredto in the Bill of Rights as an “infamous crime.” Aninfamous crime is one which may be punished byimprisonment for more than one year. As ageneral rule, no one can be prosecuted for aserious crime unless the grand jury decides thatthe evidence it has heard so requires. In this way,the grand jury operates both as a “sword,”authorizing the government’s prosecution ofsuspected criminals, and also as a “shield,”protecting citizens from unwarranted orinappropriate prosecutions. The person beinginvestigated by the government may, however,

Page 8: Grand Jury Handbook

4

waive grand jury proceedings and agree to beprosecuted by a written charge of crime called aninformation.

The grand jury is not completely free tocompel a trial of anyone it chooses. Thegovernment attorney must sign the indictmentbefore one may be prosecuted. Thus, thegovernment and the grand jury act as checks uponeach other. This assures that neither mayarbitrarily wield the awesome power to indict aperson of a crime.

(1) The Grand Jury’s Tasks

As stated above, the federal grand jury’sfunction is to determine whether theperson being investigated by thegovernment shall be tried for a seriousfederal crime alleged to have beencommitted within the district where itsits. Matters may be brought to itsattention in three ways: (1) by thegovernment attorney; (2) by the courtthat impaneled it; and (3) from thepersonal knowledge of a member of thegrand jury or from matters properlybrought to a member’s personalattention. In all these cases, the grandjury must hear evidence before takingaction.

After it has received evidence against theperson being investigated, the grand jurymust decide whether the evidencepresented justifies an indictment, or“true bill,” which is the formal criminalcharge returned by the grand jury. Uponthe indictment’s being filed in court, thatperson must either plead guilty or nolocontendere or stand trial.

If the evidence does not persuade thegrand jury that there is probable causeto believe the person being investigated

Page 9: Grand Jury Handbook

5

committed a crime, the grand jury willvote a “no bill,” or “not a true bill.”When this occurs, that person is notrequired to plead to a criminal charge,and no trial is required.

(2) Investigation

The major portion of the grand jury’swork is concerned with evidencebrought to its attention by thegovernment attorney. The grand jurymay consider additional mattersotherwise brought to its attention, butshould consult with the governmentattorney or the court before undertakinga formal investigation of such matters.This is necessary because the grand juryhas no investigative staff, and legalassistance will be necessary in the eventan indictment is voted.

It should be borne in mind that a federalgrand jury can take action only uponfederal crimes that have beencommitted within the district in which ithas been impaneled. Furthermore, afederal grand jury (except a specialgrand jury impaneled under 18 U.S.C.§§ 3331-3334) is not authorized toinvestigate situations involving theconduct of individuals, public officials,agencies or institutions that the grandjury believes is subject to mere criticismrather than a violation of federalcriminal statutes. Its concern must bedevoted solely to ascertaining whetherthere is probable cause to believe that afederal crime has been committed andto report accordingly to the court.

Page 10: Grand Jury Handbook

6

SELECTION OF GRAND JURORSFederal law requires that a grand jury be

selected at random from a fair cross section of thecommunity in the district or division in which thefederal grand jury convenes. Thus, all citizens havean equal opportunity and obligation to serve.

Pursuant to law, the names of prospectivegrand jurors are drawn at random from lists ofregistered voters or lists of actual voters, or othersources when necessary, under proceduresdesigned to ensure that all groups in thecommunity will have a fair chance to serve. Thosepersons whose names have been drawn and whoare not exempt or excused from service aresummoned to appear for duty as grand jurors.When these persons appear before the court, thepresiding judge may consider any further requeststo be excused. The judge will then direct theselection of 23 qualified persons to become themembers of the grand jury.

ORGANIZATION, OATH, ANDOFFICERS OF THE FEDERAL GRANDJURY

After the proper number of persons havebeen qualified as grand jurors, the court willappoint one of them to be the foreperson, orpresiding officer, of the grand jury. A deputyforeperson will also be appointed, so that he or shecan act as presiding officer in the foreperson’sabsence.

The foreperson, the deputy foreperson, andthe remaining members of the grand jury aresworn in by the Clerk of the Court. Those personswho do not wish to swear may affirm.

The oath taken by the grand jurors bindsthem to inquire diligently and objectively into allfederal crimes committed within the district ofwhich they have or may obtain evidence and toconduct such inquiry without malice, fear, ill will,

Page 11: Grand Jury Handbook

7

or other emotion.

After the grand jurors have been sworn, thepresiding judge advises the grand jury of itsobligations and how best to perform its duties.This is called the charge to the grand jury. Carefulattention must be paid to the charge, for it and anyadditional instructions that may be given by thecourt contain the rules and directions the grandjury must follow during its term of service.

After the grand jury has been charged, it istaken to the grand jury room, where it will heartestimony and consider documentary evidence inthe cases brought to its attention by thegovernment attorney.

PROCEDURE(1) Quorum

Sixteen of the 23 members of the grandjury constitute a quorum for thetransaction of business. If fewer thanthis number are present, even for amoment, the proceedings of the grandjury must stop. This shows howimportant it is that each grand jurorconscientiously attend the meetings. Ifan emergency will prevent a grandjuror’s attendance at the meeting, he orshe must promptly advise the grand juryforeperson. If the juror’s absence willprevent the grand jury from acting, thegrand juror should, if at all possible,attend the meeting.

(2) Evidence Before the Grand Jury

Much of the grand jury’s time is spenthearing testimony by witnesses andexamining documentary or otherevidence in order to determine whethersuch evidence justifies an indictment.

Each federal court district has a UnitedStates Attorney whose duty it is to

Page 12: Grand Jury Handbook

8

represent the United States in federalmatters within the district and toprosecute those accused of federalcrimes. In the usual case, the UnitedStates Attorney or one of the AssistantUnited States Attorneys will present theevidence of alleged violations of the lawto the grand jury. These governmentattorneys also advise grand jurors as towhat witnesses should be called andwhat documentary evidence should beproduced for examination by the grandjury. The grand jury may ask thatadditional witnesses be called if itbelieves this necessary. The governmentattorney will also prepare the formalwritten indictments that the grand jurywishes to present. But a governmentattorney may not remain in the roomwhile the grand jury deliberates andvotes on an indictment.

(3) Questioning the Witness

Witnesses are called to testify one afteranother. Upon appearing to givetestimony, each witness will be swornby the grand jury foreperson or, in theforeperson’s absence, the deputyforeperson. The witness will then bequestioned. Ordinarily, the governmentattorney questions the witness first,followed next by the foreperson of thegrand jury. Then, the other members ofthe grand jury may question the witness.

All questions asked of each witnessmust be relevant and proper, relatingonly to the case under investigation. Ifdoubt should arise as to whether aquestion is appropriate, the advice of thegovernment attorney may be sought. Ifnecessary, a ruling may be obtainedfrom the court.

Page 13: Grand Jury Handbook

9

Because of the need for secrecy,described in more detail in the followingsection, the law forbids anyone otherthan authorized persons from beingpresent in the grand jury room whileevidence is being presented. Thismeans that only the grand jury, thegovernment attorney, the witness underexamination, the court reporter, and aninterpreter, if required, may be present.If an indictment should ultimately bevoted, the presence of unauthorizedpersons in the grand jury room couldinvalidate it.

Occasionally, prior to answering aquestion, a witness may ask to leave thegrand jury room to consult with his orher attorney. The grand jury can nothold such conduct against a witness, forevery witness has the right to conferwith counsel even though counsel maynot be present in the grand jury room.In fact, a witness may confer withcounsel after each question, as long ashe or she does not make a mockery ofthe proceedings or does not, by such,make an attempt to impede the orderlyprogress of the grand jury investigation.

Additionally, a witness who is appearingbefore the grand jury may invoke theFifth Amendment privilege against self-incrimination and refuse to answer aquestion. In such a situation, the grandjurors may bring the matter before thecourt in order to obtain a ruling as towhether or not the answer may becompelled and under whatcircumstances.

(4) Calling the Person Being Investigated bythe Government as a Witness

Normally, neither the person being

Page 14: Grand Jury Handbook

10

investigated by the government nor anywitness on behalf of that person willtestify before the grand jury.

Upon request, preferably in writing, theperson being investigated by thegovernment may be given theopportunity by the grand jury to appearbefore it. Such person who does soappear cannot be forced to testifybecause of the constitutional privilegeagainst self-incrimination. If the grandjury attempts to force the person beinginvestigated to testify, an indictmentreturned against that person may benullified.

Because the appearance of the personbeing investigated by the governmentbefore the grand jury may raisecomplicated legal problems, a grand jurythat desires to request or to permit thatperson to appear before it shouldconsult with the government attorneyand, if necessary, the court beforeproceeding.

Even if the person being investigated bythe government is willing to testifyvoluntarily, that the person must beadvised of the right not to testify. Also,he or she is required to sign a formalwaiver of this right. The grand juryshould be completely satisfied that theperson being investigated fullyunderstands what he or she is doing.

(5) The Evidence Needed Before a “‘TrueBill” May Be Voted

It is the responsibility of the grand juryto weigh the evidence presented to it inorder to determine whether thisevidence, usually without anyexplanation being offered by the person

Page 15: Grand Jury Handbook

11

being investigated by the government,persuades it that there is probable causeto believe that a crime has beencommitted and that the person beinginvestigated was the person whocommitted it. Remember that the grandjury is not responsible for determiningwhether the person being investigated isguilty beyond a reasonable doubt, butonly whether there is sufficient evidenceof probable cause to justify bringing thethat person to trial. Only the evidencepresented to the grand jury in the grandjury room may be considered indetermining whether to vote anindictment.

(6) Deliberations

When the grand jury has received all theevidence on a given charge, all personsother than the members of the grandjury or an interpreter necessary to assista juror who is hearing or speechimpaired, must leave the room so thatthe grand jury may begin itsdeliberations. The presence of any otherperson in the grand jury room while thegrand jury deliberates or votes maynullify an indictment returned on theaccusation.

After all persons other than the grandjury members and any interpreter for ahearing or speech impaired juror haveleft the room, the foreperson will ask thegrand jury members to discuss and voteupon the question of whether theevidence persuades the grand jury that acrime has probably been committed bythe person person being investigated bythe government and that an indictmentshould be returned. Every grand jurorhas the right to express his or her viewof the matter under consideration, and

Page 16: Grand Jury Handbook

12

grand jurors should listen to thecomments of all their fellow grand jurorsbefore making up their mind. Only aftereach grand juror has been given theopportunity to be heard will the vote betaken. It should be remembered that atleast 16 jurors must be present and 12members must vote in favor of theindictment before it may be returned.

The foreperson of the grand jury mustkeep a record of the number of jurorsconcurring in the finding of everyindictment and file the record with theClerk of the Court. If an indictment isfound, the grand jury, or its forepersonor deputy foreperson, will report it to thejudge or a magistrate judge in opencourt. It will likewise report any “nottrue bills,” or decisions not to indict. Adecision not to indict shouldimmediately be reported to the court inwriting by the foreperson so that theperson being investigated by thegovernment may promptly be releasedfrom jail or freed from bail.

SECRECYThe law imposes upon each grand juror a

strict obligation of secrecy. This obligation isemphasized in the oath each grand juror takes andin the charge given to the grand jury by the judge.

The tradition of secrecy continues as a vitalpart of the grand jury system for many reasons. Itprotects the grand jurors from being subjected topressure by persons who may be subjects ofinvestigations by the grand jury or associates ofsuch persons. It prevents the escape of thoseagainst whom an indictment is being considered.It encourages witnesses before the grand jury togive full and truthful information as to thecommission of a crime. It also prevents tampering

Page 17: Grand Jury Handbook

with or intimidation of such witnesses before theytestify at trial. Finally, it prevents the disclosure ofinvestigations that result in no action by the grandjury and avoids any stigma the public might attachto one who is the subject of a mere investigationby the grand jury.

Essentially, the grand jury may disclosematters occurring before it only to the governmentattorneys for use in the performance of theirduties, but even the government attorneys may notbe informed of what took place during the grandjury’s deliberations and voting. The only othertime matters occurring before the grand jury maybe disclosed to anyone is when disclosure isordered by the court in the interests of justice.Disclosure of such matters may never be made togrand juror’s friends or family, including a grandjuror’s spouse.

PROTECTION OF GRAND JURORSThe secrecy imposed upon grand jurors is a

major source of protection for them. In addition,no inquiry may be made to learn what grand jurorssaid or how they voted, except upon order of thecourt.

The law gives the members of a grand jurybroad immunity for actions taken by them withinthe scope of their authority as grand jurors.

Because of this immunity, all grand jurorsmust perform their duties with the highest sense ofresponsibility.

PRACTICAL SUGGESTIONS FORGRAND JURORS

Each grand juror should attend the grand jurysessions regularly, in order to ensure that a quorumof 16 members will be present to conduct thegrand jury’s business.

Each grand juror should be on time for eachmeeting so that others are not kept waiting.

13

Page 18: Grand Jury Handbook

The time of meetings should be scheduled soas to be convenient for the grand jury, thegovernment attorney, and the witnesses.

Witnesses should be treated courteouslywhen they appear before the grand jury. Questionsshould be put to them in an orderly fashion. Thegovernment attorney should complete his or herquestioning of each witness before the forepersonasks questions. The remaining grand jurors willthen have a chance to ask relevant and properquestions.

Each grand juror has an equal voice indetermining whether or not an indictment shouldbe returned. Therefore, it is important that allgrand jurors pay close attention to the testimonyand other evidence presented.

Each grand juror must be absolutely fair in hisor her judgment of the facts. Otherwise, the grandjuror will defeat the democratic purpose the grandjury is designed to serve.

During deliberations on a case, each grandjuror should feel free to express his or her opinionbased upon the evidence.

Each juror has equal duties andresponsibilities, and each is entitled to be satisfiedwith the evidence before being called upon to vote.No juror has the right to dismiss a witness or toshut off proper discussion if other jurors wish topursue the matter further.

No grand jury should undertake to investigatematters outside its proper scope merely becausesomeone suggested an investigation, or becausethe investigation would be interesting.

No grand juror should discuss the cases underinvestigation with anyone, except fellow grandjurors and the government attorney, and then onlyin the grand jury room. Of course, the grand jurorsmay always seek the advice of the judge.

Finally, every citizen who is selected to serve

14

Page 19: Grand Jury Handbook

on a federal grand jury should bring to this task thedetermination to participate in a responsiblemanner and to make every effort to ensure that thegrand jury will be a credit not only to thecommunity it represents but to the United States.

15

Page 20: Grand Jury Handbook

GLOSSARY OF TERMS

Charge to the Grand Jury:

Given by the judge presiding over theselection and organization of the grand jury, thecharge is the court’s instructions to the grand juryas to its duties, functions, and obligations, and howto best perform them.

Deliberations:

The discussion by the grand jury members asto whether or not to return an indictment on agiven charge against an person being investigatedby the government. During deliberations no oneexcept the grand jury members or an interpreterfor a hearing or speech impaired juror may bepresent.

District:

The geographical area over which the federaldistrict court where the grand jury sits and thegrand jury itself have jurisdiction. The territoriallimitations of the district will be explained to thegrand jury by the district judge.

Evidence:

Testimony of witnesses, documents, andexhibits as presented to the grand jury by agovernment attorney or otherwise properlybrought before it. In some instances, the personperson being investigated by the government mayalso testify.

Federal:

The national government as distinguishedfrom the state governments.

Government Attorney:

Usually the United States Attorney or anAssistant United States Attorney in the federaldistrict.

16

Page 21: Grand Jury Handbook

Grand Jurors’ Immunity:

Immunity is granted to all grand jurors fortheir authorized actions while serving on a federalgrand jury and means that no grand juror may bepenalized for actions taken within the scope of hisor her service as a grand juror.

Indictment:

The written formal charge of a crime by thegrand jury, returned when 12 or more grand jurorsvote in favor of it.

Information:

The written formal charge of crime by thegovernment attorney, filed against the person beinginvestigated who, if charged with a serious crime,must have knowingly waived the requirements thatthe evidence first be presented to a grand jury.

“No Bill”:

Also referred to as “not a true bill,” the “nobill” is the decision by the grand jury not to indict aperson being investigated by the government.

Petit Jury:

The trial jury, composed of 12 members, thathears a case after indictment and renders a verdictor decision after hearing the prosecution’s entirecase and whatever evidence the defendant choosesto offer.

Person Being Investigated by the Government:

The person suspected of having committed afederal crime. Use of this term does not imply theperson being investigated is guilty of any crime.After a person is indicted by the grand jury, thatperson is referred to as the “defendant.”

Probable Cause:

The finding necessary in order to return anindictment against the person being investigatedby the government of a federal crime. A finding of

17

Page 22: Grand Jury Handbook

probable cause is proper only when the evidencepresented to the grand jury, without anyexplanation being offered by the person beinginvestigated, persuades 12 or more grand jurorsthat a federal crime has probably been committedby that person.

Quorum for Grand Jury to Conduct Business:

Sixteen of the 23 members of a federal grandjury must at all times be present at a grand jurysession in order for the grand jury to be able toconduct business.

United States Attorney:

The chief legal officer for the United Statesgovernment in each federal district.

18

Page 23: Grand Jury Handbook
Page 24: Grand Jury Handbook

Administrative Officeof the

United States CourtsWashington, D.C. 20544

HB101