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Grand Juries Vol 38a Corpus Juris Secundum 2
Grand Juries Vol 38a Corpus Juris Secundum 2
GRAND JURIES
38A C.J.S.
Library References
Grand Jury e=>18.
88. La.-State v. Revere, App. 1 Cir., 572 So.2d 117, writ denied 581
So.2d 703.
Individual Jurors
a. In general
b. Voir dire
61.
a. In General
89. La.-State v. Liner, 397 So.2d 506, concurred 406 So.2d 1312.
90. N.D.-State v. Fellows, 207 N.W. 477, 49 S.D. 481.
91. Cal.-People v. Simmons, 50 P. 844, 119 C. 1.
7. Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed 131 So.
147, 100 Fla. 373-OgIesby v. State, 90 So. 825, 83 Fla. 132.
N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
8. Ind.-Merchon v. State, 51 Ind. 14.
9. D.C.-Khaiilis v. U.S., App., 408 A2d 313, certiorari denied Adam
v. U.S., 100 S.Ct. 1059, 444 U.S. 1092, 62 L.Ed.2d 781.
382
C.J.S.
to
Ie grand
~ction
ther the
common
;he praclowever,
,olls 99 or
. cause.I
common
sexists,
d where
aw;l and
statute.5
lallenges
~enerally
by such
rovisions
gh there
Ield that
of legal
:J.ualifica-
tke v. State,
373.
o Fla.
Doyle,208
6 Pa.Super.
:5 Pa.Super.
.26.
orari denied
38A C.J.S.
GRAND JURIES 62
Research Note
Whether accused may object to exclusion of group to which
accused does not belong is treated supra 19.
Library References
Grand Jury 0:0>17,18.
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.
After impaneling
The rule as generally laid down is that, at common law, any person under prosecution for crime
may, before he is indicted, for good cause challenge
the array 24 or any person returned or placed on
the grand jury 25 whether the person under prosecution is in prison or out on bail.26
Postindictment interrogation
Defendant was not entitled to engage in postindictment interrogation of grand jury members.
Ariz.-State ex reI. Hastings v. SuIt, 781 P.2d 590, 162 Ariz. 112.
19. U.S.-U.S. v. Grandison, C.A.4(Md.), 780 F.2d 425, certiorari
granted and vacated Evans v. U.S., 107 S.O. 1269, 479 U.S. 1075, 94
L.Ed.2d 130, Kelly v. U.S., 107 S.O. 1270, 479 U.S. 1076, 94 L.Ed.2d
132 and 107 S.Ct. 1270, 479 U.S. 1076, 94 L.Ed.2d 131, on remand
721 F.Supp. 743, affirmed 885 F.2d 143, rehearing denied, certiorari
denied 110 S.O. 2178, 495 U.S. 934, 109 L.Ed.2d 507.
In re Balistrieri, D.C.Wis., 503 F.Supp. 1112-Schwartz v. U.S.
Dept. of Justice, D.C.Pa., 494 F.Supp. 1268.
20. N.Y.-People v. Hussein, 568 N.Y.S.2d 296, 150 Misc.2d 119.
21. Fla.-Bundy v. State, 455 So.2d 330, certiorari denied 106 S.O.
1958, 476 U.S. 1109, 90 L.Ed.2d 366, stay granted Bundy v. Wainwright, 794 F.2d 1485.
22. Me.-State v. Barczak, 562 A.2d 140.
23. Fla.-Thompson v. State, 565 So.2d 131l.
24. Pa.-Commonwealth v. Brown, 28 Pa.Co. 529.
25. Ind.-Merchon v. State, 51 Ind. 14.
26. N.Y.-People v. Jewett, 3 Wend. 314.
Fla.-Porter v. State, 400 So.2d 5, appeal after remand 429 So.2d 293,
certiorari denied 104 S.O. 202, 464 U.S. 865, 78 L.Ed.2d 176.
leniedAdam
/
383
62
GRAND JURIES
38A C.J.S.
It has even been said that a person wholly disinterested may, as amicus curiae suggest that a
grand juror is disqualified.27 However, according
to some authorities, a court will not entertain a
challenge at the instance of any other person than
one under prosecution for an offense about to be
submitted to a grand jury.28 A mere witness lacks
standing to challenge the composition of the grand
jury.29
63.
Library References
Grand Jury e=>19.
Prosecuting attorney.
Waiver in General
Time
Library References
Grand Jury e=>16-19.
On constitutional grounds
U.S.-Matter of Archuleta, D.C.N.Y., 432 F.Supp. 583.
30. Fla.-State v. Lewis, 11 So.2d 337, 152 Fla. 178.
31. Mo.-State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015.
32. Wash.-State v. Ingels, 104 P.2d 944, 4 Wash.2d 676, certiorari
denied 61 S.Ct. 318, 311 U.S. 708, 85 L.Ed. 460.
33. Fed.Rules Cr.Proc., Rule 6(b)(1), 18 U.S.CA
384
GRAND JURIES 64
'8A C.J.S.
38A C.J.S.
, grand juror is
is involved,M
a grand juror
precede any
ule has been
allenge to the
the array.37
la, 426,
Mo, 1015-State v,
3obbst, 190 S,W, 257,
denied 106 S,Ct.
orpus denied Bird v,
rari denied 111 S,O,
review refused,
474, certiorari denied
~6,
91.
L78,
10,
hl1176, 344 Mo, 14L~tate v, King, 119
Agency v, Doyle, 208
(2) Defendant who has not had a preliminary hearing but is indicted
on the recommendation of an investigating grand jury has not been
held for court.
Pa.-Commonwealth v. Millhouse, 386 A2d 581, 255 Pa.Super. 206.
44. U.S.-Tennon v. Ricketts, C.AGa., 574 F.2d 1243, certiorari
denied 99 S.Ct. 874, 439 U.S. 1091, 59 L.Ed.2d 57, appeal after
remand 642 F.2d 161, rehearing denied 647 F.2d 1123.
Ga.-Clark v. State, 338 S.E.2d 269, 255 Ga. 370.
N.J.-State v. Ruffu, 150 A 249, 8 N.J.Misc. 392.
45. N.Y.-People v. Davis, 421 N.Y.S.2d 176, 101 Misc.2d 444.
46. Discretion
~rari
385
.[ rlll[IIIIIIIIIIIIIIIIIIIIIIIII~I.m.iI
iiiiiiii.
64
38A C.J.S.
GRAND JURIES
(2) A defendant has no standing under Act to challenge composition of grand jury which neither indicted him uor took any other action
against him.
U.S.-U.S. v. Caron, D.C.Va., 551 F.Supp. 662, affirmed 722 F.2d 739,
certiorari denied 104 S.Ct. 1602, 465 U.S. 1103, 80 L.Ed.2d 132.
Must be defendant
(1) Where petitioners had been indicted by grand jury, prior indictment was dismissed and petitioners filed motion to stay and terminate
all grand jury proceedings, petitioners were not "defendants" and
could not challenge selection of grand jurors.
U.S.-In re Grand Jury of Southern Dist. of Alabama, D.C.Ala., 508
F.Supp. 1210.
(2) Witness subpoenaed by grand jury had no standing.
U.S.-Matter of Archulet~, D.C.N.Y., 432 F.Supp. 583.
Time
Requirement of Act of timely objection to noncompliance with Act
is to be strictly construed, and failure to comply precisely with its terms
forecloses challenge under Act.
U.S.-U.S. v. Bearden, C.A.Ga., 659 F.2d 590, certiorari denied Northside Realty Associates, Inc. v. U.S., 102 S.Ct 1993, 456 U.S. 936, 72
L.Ed.2d 456 and Browning-Ferris Industries of Georgia, Inc. v. U.S.,
102 S.Ct. 1993, 456 U.S. 936, 72 L.Ed.2d 456, on remand 555
F.Supp. 595.
65. 28 U.S.c.A. 1867(b).
66. 28 U .S.C.A. 1867(d).
67. 28 U.S.c.A. 1867(d).
68. 28 U.S.c.A. 1867(e).
69. 28 U.S.C.A. 1867(e).
386
I I
GRAND JURIES
38A C.J.S.
38A C.J.S.
grand jury.65
d supra 13.
)rovision shall
~rson accused
General may
md that such
nth the Act. 68
Ie any person
19 any other
:le vindication
19 discrimina, sex, national
lon of persons
used by the
tion with the
sed as necesdon of a mo-
66
66.
In General
a. Before organization
b. After organization
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.
Research Note
Prohibition on discrimination and fair cross section requirement as affecting excusing of grand jurors is considered supra
17.
Library References
Grand Jury <&=>11.
WESTLAW ELECTRONIC RESEARCH
See WESTLAW Electronic Research Gnide following Preface
Voir dire.
It has been held that the court may conduct a
voir dire to determine the impartiality of a potential grand juror.78 The court has the highest obligation, first, to the prospective juror that, if sworn,
he may serve with a free mind, unfettered by
personal discomfiture, embarrassment, or subconscious restraint and, second, to all who stand before
the bar of justice, to assure that such juror will be
ultimately able to make his determination fairly
and impartially, without fear, favor, or sympathy.79
The court need not make a record of its voir dire. 80
The rule is generally laid down apart from stath. After Organization
ute that for any good cause shown and in furtherPursuant to statutory authorization, and according to some
ance of justice the court has the right, in the authorities under their inherent power, the courts may excuse a
exercise of its sound discretion on its own motion, grand juror after he has been sworn.
without challenge from either party, to discharge or
It has been held that, in the absence of statutory
excuse a grand juror at any time before he is
.
authority,
a court has no power to excuse grand
sworn.72 Statutes sometimes expressly confer aujurors
for
any cause after they have once been
thority to discharge or excuse persons called to
81
serve as grand jurors.73 It is generally held that impaneled and sworn.
the discretionary power of a court to excuse or
However, it has also been held that a court may
discharge persons called to serve as grand jurors discharge persons who lack the qualifications refor any reason it may deem sufficient is not re- quired by law notwithstanding they may have prestricted by a statutory specification of grounds of viously been impaneled and sworn as grand juexcusal or discharge,74 although there is authority rors; 82 and according to some authorities a court
to the contrary.75
has power to excuse or discharge grand jurors
A jury commissioner may have the authority to after they have been impaneled and sworn for an'y~
cause which it may in the exercise of its discretion
excuse a grand juror.76
70. 28 u.S.c.A. 1867(t).
71. 28 u.S.c.A. 1867(f).
75. La.--.'itate v. Smith, 83 So. 264, 145 La. 1091--.'itate v. McGarrity, 73 So. 259, 140 La. 436.
76. Ariz.--.'itate v. Fendler, App., 622 P.2d 23, 127 Ariz. 464, certiorari denied 101 S.Ct. 3108, 452 U.S. 961, 69 L.Ed.2d 97l.
77. Nev.--.'itate v. Cohn, 9 Nev. 179.
78. N.J.--.'itate v. Murphy, 538 A.2d 1235, 110 N.J. 20.
79. N.Y.-People v. Mulroy, 439 N.Y.S.2d 61, 108 Misc.2d 907.
80. Mich.-People v. Edmond, 273 N.W.2d 85, 86 Mich.App. 374.
81. Tex.-Ex parte Love, 93 S.W. 551, 49 Tex.Cr. 475.
82. La.--.'itate v. Phillips, 114 So. 171, 164 La. 597.
387
:i i i
66
38A C.J.8.
GRAND JURIES
388
38A C.J.S.
38A C.J.S.
GRAND JURIES 68
Voir dire.
~xcused
68.
In General
a. General considerations
b. Federal grand jury
a. General Considerations
for federal
)y the court, or
he court if the
orizes, upon a
;reme inconve; deems necese ground that
. impartial jury
would be likely
uded upon device as a juror
:ecrecy of the
affect the innal Procedure,
.t any time for
a juror either
La.-State v. Smith, 103 So. 534, 158 La. 129-State ex reI. Smith v.
Beauregard Parish Democratic Executive Committee, 97 So. 876,
154 La. 603.
;13.
supra 20-34.
request see supra
;13.
8.
9.
Extraordinary term
11. 20 months
24 months
U.S.-U.S. v. Pisani, D.C.N.Y., 590 F.Supp. 1326.
12. N.Y.-People v. Pisanti, 38 N.Y.S.2d 850, 179 Misc. 308.
13. Fed.Rules Cr.Proc., Rule 6(g), 18 U.S.C.A
389
68
38A C.J.S.
GRAND JURIES
23.
Different person
Grand jury was not prohibited from considering evidence concerning
particular person during its extended term, even though it had not
considered evidence concerning that person during its original term.
N.Y.-Kuriansky v. Seewald, 1 Dept., 544 N.Y.S.2d 336, 148 AD.2d
238, appeal denied 549 N.E.2d 478, 74 N.Y.2d 616, 550 N.Y.S.2d
276.
390
GRAND JURIES 70
A. C.J.S.
38A C.J.S.
of statute
~xt term is
to the next
has been
lte a grand
:d the term
:1,24 as, for
Ie retention
subsequent
lid. 26
ions can be
nit on the
ength of all
discharged
m permissimsions has
quires good
grand jury
lecessary to
siness,32 and
en extended
.der entirely
>-State v. Davis,
>-State v. Davis,
It is not only the state's attorney of a county who may petition the
57.
57.
157.
idence concerning
hough it had not
its original term.
circuit court to continue a grand jury term and term of grand jury
investigating medicaid fraud was properly extended at request of
attorney general, who had been directed by governor to investigate
alleged medicaid fraud.
Md.-In re Special Investigation No. 281, 473 A2d 1, 299 Md. 181.
35.
39.
40.
391
70
GRAND JURIES
38A C.J.S.
392
C.J.S.
statutes
lis charge
e>roviding
re it the
lurt. 59 A
60
~d
by the
al homes
il and the
LS to the
'or a dis,here the
. developan existrial judge
urt and a
63
court, a
ve or the
ined counnd jury.64
reason of
the grand
lS engaged
,s inherent
during the
, court.
l, 229 Mo.App.,
Library References
Grand Jury =~1.
. 403, certiorari
A grand jury sUlllIDoned to serve during a regular term is competent to serve at an adjournment
18 U.S.C.A. 3331(a).
18 U.S.C.A. 3331(b) .
\03.
69.
d County, Fifth
GRAND JURIES 73
38A C.J.S.
393
73
GRAND JURIES
38A C.J.S.
In General
Generally, the grand jury should be given appropriate instructions by the court or the prosecutor. However, it has also
been held that there is no requirement of instructions.
Research Note
Charge or absence thereof "as affecting validity of indictment is
treated in C.J.S. Indictments and Infonnations 20, 177.
Library References
Grand Jury =23, 33, 34.
WESTLAW ELECTRONIC RESEARCH
See WESTLAW Electronic Research Guide following Preface.
Generally, the grand jury should be given appropriate instructions 83 by the court 84 or the prosecu82. Mo.-State v. Brown, 194 S.W. 1069, 195 Mo.App. 590.
Pa.-Shenker v. Harr, 2 A2d 298, 332 Pa. 382.
Allocation of responsibility
Court generally instructs grand jury with respect to tbe law concerning its duties and advises grand jury when requested, while prosecutor
generally gives instructions with respect to evidence; while law permits
overlapping of these functions, it does not require that they be
duplicated.
Nev.-Sheriff, Clark County v. Keeney, 791 P.2d 55, 106 Nev. 213.
N.Y.-People v. Tru-Sport Pub. Co., 291 N.Y.S. 449, 160 Misc. 628.
N.D.-State v. Rodman, 221 N.W. 25, 57 N.D. 230.
Ohio-Maldey v. State, 197 N.E. 339, 49 Ohio App. 359, 17 Ohio Law
Abs. 305, 3 0.0. 250, error dismissed 192 N.B: 738, 128 Ohio St.
571, 40 Ohio Law Rep. 651.
Prosecutorial abuse
If prosecutorial abuse is shown or substantial likelihood of its
occurrence is demonstrated, a district court is well within its supervisory authority in insuring that a grand jury is properly instructed on the
applicable criminal law; this is merely another facet of the court's duty
to preserve the traditional independence of grand jury and should be
done upon a proper showing that a statute is indistinct.
U.S.-In re Grand Jury 79-Ul, D.C.Ga., 489 F.Supp. 844.
During deliberations
85. Colo.-People ex reI. Losavio v. Gentry, 606 P.2d 57, 199 Colo.
153.
Minn.-State v.lnthavong, 402 N.W.2d 799.
N.Y.-People v. Petre, 573 N.Y.S.2d 834, 151 Misc.2d 543.
Grand jury's consultation of Commonwealth's attorney during deliberations to obtain advice on legal issue was proper.
Va.-Vihko v. Commonwealth, 393 S.E.2d 413, 10 Va.App. 498.
Court supervision
Any advice to grand jury by prosecutor is subject to court supervision.
W.Va.-State v. Pickens, 395 S.B:2d 505, 183 W.Va. 261.
88. Me.-State v. Haberski, 449 A2d 373, certiorari denied 103 S.O.
823,459 U.S. 1174,74 L.Ed.2d 1019.
89. U.S.-U.S. v. Zangger, CA(Iowa), 848 F.2d 923-U.S. v. Kenny,
CACa!., 645 F.2d 1323, certiorari denied 101 S.Ct. 3059, 452 U.S.
920, 69 L.Ed.2d 425 and Parker v. U.S., 102 S.O. 121, 454 U.S. 828,
70 L.Ed.2d 104.
394
~8A
C.J.S.
on the court
The prose7 and jury.87
cutor cannot
request the
me constituendent counjury, as dis; there is no
grand jurors
~harged with
the absence
;ential to the
ex reI. De Annas
10 Mass. 264.
J6Nev.213.
l60 Misc. 628.
59, 17 Ohio Law
,8, 128 Ohio St.
Pa.Super. 107.
648.
38A C.J.S.
GRAND JURIES
74
90. Wis.-State v. Lawler, 267 N.W. 65, 221 Wis. 423, 105 AL.R. 568.
:0 court supervi-
-u.S. v. Kenny,
. 3059, 452 U.S.
1, 454 U.S. 828,
App. 769, writ
Strict construction
9. Ark.-Yelvington v. State, 276 S.W. 353, 169 Ark. 498Mass.-Attorney General v. Pelletier, 134 N.E. 407, 240 Mass. 264.
10. Conn.-State v. Kemp, 9 A2d 63, 126 Conn. 60.
Nev.561.
395
74
38A C.J.S.
GRANDJURIES
Character of Charge
a. In general
b. Particular matters
a. In General
24.
396
~8A
C.J.S.
line whether
i to establish
and an adei informed of
Instructions
t not be so
ltially undergS.23 Grand
!iled as petit
sufficient to
GRAND JURIES 75
38A C.J.S.
The prosecutor, in instructing the grand jury,
must not invade the province of the grand jury,32
state irrelevant facts,33 or make statements in conflict with the charge given by the court.34 It has
been held that he may not express his own opinion,35 or make arguments. 36
32. Nev.-Sheriff, Clark County v. Keeney, 791 P.2d 55, 106 Nev.
213.
invade the
lnifest abuse
:e to express
)f a person,27
vidence war. violation of
ct the attenperson as a
;hould not in
;ed by law to
a crime has
ien held that
gation by its
f its instrucauthority is
i.
31
Court should charge jurors that those who join in indictment must
have been present and have heard or otherwise have informed themselves of the evidence presented at each session.
Subpoena power
(1) Prosecutor has statutory duty to advise grand jury of its right to
subpoena anyone against whom state might seek an indictment.
Circumstantial evidence
N.Y.-People v. Borriello, 587 N.Y.S.2d 518, 154 Misc.2d 261.
Expert testimony
(2) If government intends to avail itself of summary wituess procedure, it is a better practice to remind the grand jury that it retains the
option of calling percipient witnesses.
Proper evidence
Burden of proof
ilisc.2d 514.
Corroboration
Corroboration is requirement of "legally sufficient evidence" to
support indictment, and thus, district attorney must inform grand jury
of nature, degree, and extent of particular corroboration statute involved in criminal proceeding.
Presumption of intent
.414, 39 N.Y.Cr.
414, 39 N.Y.Cr.
466.
v. State, 37 So.
ing responsibility
into every grand
es do not deliver
ing, but, to concommon sense,
~alth of informaII justice system.
414, 39 N.Y.Cr.
h. Particular Matters
Standard of proof
Silence
40.
Sufficiency of evidence
397
75
GRAND JURIES
38A C.J.S.
Defenses.
need not be instructed as to mitigating defenses.44
It has been held that in some circumstances the Various defenses have been held exculpatory 45 or
grand jury should be instructed as to a defense. 41 mitigating.46 However, it has been held that the
An instruction on a defense is required only if the grand jury need not be instructed as to all exculpatory defenses,47 and need not be instructed as to
evidence supports such defense. 42
48
Some authorities hold that the grand jury should the defense of mental disease or defect.
be instructed on a defense only if such defense has
Lesser included offense.
the potential for eliminating a needless or unfounded prosecution,43 and that the grand jury generally
The prosecutor generally need not instruct the
must be instructed as to exculpatory defenses, but grand jury as to a lesser included offense.49
V.' POWERS AND DUTIES
76.
In General
Library References
Grand Jury <1>24-26.
(1) In general.
Ariz.-State v. Coconino County Superior Court, Div. II, 678 P.2d
1386, 139 Ariz. 422.
(2) Self-defense.
Hawaii-State v. Bell, 589 P.2d 517, 60 Haw. 241.
No duty
Prosecutor is under no duty to instruct grand jury as to mitigating
defenses.
U.S.-People v. Lancaster, 503 N.E.2d 990, 69 N.Y.2d 20, 511
N.Y.S.2d 559, certiorari denied Lancaster v. New York, 107 S.Ct.
1383, 480 U.S. 922, 94 L.Ed.2d 697.
45. Agency
N.Y.-People v. Jenkins, 2 Dept., 550 N.Y.S.2d 736, 157 AD.2d 854.
People v. Ali, 523 N.Y.S.2d 334, 137 Misc.2d 812.
Justification
398
SA C.J.S.
38A C.J.S.
~ defenses.44
lpatory 45 or
~ld that the
all exculpa:"Ucted as to
<18
instruct the
3e.
49
Jllowing Preface.
ive power,50
vestigation,51
.987, C.A.9(Cal.),
Jury, C.A3(Pa.),
08 S.Ct. 749, 484
Subpoena Served
ed. 461, certiorari
89 L.Ed.2d 914denied 97 S.Ct.
'or Pima County,
07, 103 Ill.App.3d
299 Md. 181.
nce v. New York
Task Force, 378
1 AL.R.4th 951.
t.App.498.
denied 104 S.Ct.
Ie consistent with
65, 95 m.2d 155.
LD.647.
GRAND JURIES
76
There is a grave public need for a grand jury which may conduct an
unfettered and uninterrupted investigation.
MonL-Matter of Secret Grand Jury lnquiry, John and Jane Does
Thirty Through Thirty-Nine, 553 P.2d 987, 170 Mont. 354.
51. U.S.-U.S. v. Malsom, C.A.7(m.), 779 F.2d 1228.
In re Grand Jury Subpoenas Duces Tecum lnvolving Charles Rice,
D.C.Minn., 483 F.Supp. 1085.
N.J.-In re Grand Jury Subpoena Duces Tecum, 363 A2d 936, 143
N.J.Super. 526.
N.Y.-Matter of Special Investigation 1198/82, 461 N.Y.S.2d 186, 118
Misc.2d 683-People v. Walker, 457 N.Y.S.2d 732,117 Misc.2d 210.
52. Arlz.-State v. Young, App., 720 P.2d 965,149 Ariz. 580.
53. U.S.-U.S. v. Sells Engineering, lnc., Cal., 103 S.Ct. 3133, 463
U.S. 418, 77 L.Ed.2d 743.
Dual function of grand jury see supra 2.
54. U.S.-In re Grand Jury Proceedings, D.C.F1a., 73 F.R.D. 647.
N.J.-State v. Doliner, 475 A2d 552, 96 N.J. 236.
55. Pa.-Petition of McNair, 187 A 498, 324 Pa. 48, 106 AL.R. 1373.
56. U.S.-Blair v. U.S., N.Y., 39 S.Ct. 468, 250 U.S. 273, 63 L.Ed.
979.
In re Soto-Davila, D.C.Puerto Rico, 96 F.R.D. 406.
N.Y.-Virag v. Hynes, 430 N.E.2d 1249, 54 N.Y.2d 437, 446 N.Y.S.2d
196.
57.. U.S.-U.S. v. R. Enterprises, lnc., Va., 111 S.Ct. 722, 498 U.S.
292, 112 L.Ed.2d 795, on remand In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d 229.
Ealy v. Littlejohn, C.AMiss., 569 F.2d 219.
Alaska-O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163.
N.Y.-Matter of Special Grand Jury, 494 N.Y.S.2d 263, 129 Misc.2d
770.
58. Conn.-Connelly v. Doe, 566 A2d 426, 213 Conn. 66.
Ga.-Howard v. State, 4 S.E.2d 418, 60 Ga.App. 229.
La.-State ex rel. De Armas v. Platt, 192 So. 659, 193 La. 928.
Miss.-State v. Bates, 192 So. 832, 187 Miss. 172.
N.Y.-ln re Grand Jurors Ass'n, Bronx County, 25 N.Y.S.2d 154.
Pa.-Commonwealth v. Hubbs, 8 A2d 611, 137 Pa.Super. 229.
Tex.-Ex parte Jennings, 240 S.W. 942, 91 Tex.Cr. 612, 22 AL.R.
1351.
59. U.S.-U.S. v. R. Enterprises, Inc., Va., 111 S.Ct. 722, 498 U.S.
292, 112 L.Ed.2d 795, on remand In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d 229.
60. Cal.-Allen v. Payne, 36 P.2d 614, 1 C.2d 607.
61.
No common-law powers
Ind.-In re Grand Jury for Fourth Quarter, 1984, App. 3 Dist., 497
N.E.2d 1088.
District of Columbia
By statute, District of Columbia grand juries have powers comparable to federal grand juries.
D.C.-Christian v. U.S., App., 394 A2d 1, certiorari denied Clark v.
U.S., 99 S.Ct. 2889, 442 U.S. 944, 61 L.Ed.2d 315.
64. U.S.-U.S. v. Zarattini, C.AIll., 552 F.2d 753, certiorari denied
97 S.Ct. 2661, 431 U.S. 942, 53 L.Ed.2d 262.
65. N.Y.-People v. Rodriguez, 411 N.Y.S.2d 526, 97 Misc.2d 379.
66. U.S.-Matter of Arawak Trust Co. (Cayman) Ltd., D.C.N.Y., 489
F.Supp. 162.
67. N.Y.-In re Grand Jurors Ass'n, Bronx County, 25 N.Y.S.2d 154.
68. N.Y.-In re Grand Jurors Ass'n, Bronx County, 25 N.Y.S.2d 154.
69. Va.-Vihko v. Commonwealth, 393 S.E.2d 413, 10 Va.App. 498.
399
76
38A C.J.S.
GRAND JURIES
400
\A C.J.S.
38A C.J.S.
grand jury
mination of
Ise is pendrisdiction of
hat such a
~ examina-
GRAND JURIES 78
Supervision by Court
The court has some supervisory authority over the grand
jury.
Bon regard-'
unary hear- .
1.82 Failure
concerriing
~ power of a
I accused a
; affect the
lerson even
l5 and even
Lppear at a
ly, a grand
~son regardLgistrate and
has held or
(latter pendcrimes not
binding ac;ed or deter-
Research Note
Relation of grand jury to court in general is considered supra
3.
Library References
Grand Jury 0=>25, 33.
91.
trisoned on a
99. U.S.-Hoffman v. U.S" Pa., 71 S.O. 814, 341 U.S. 479, 95 L.Ed.
1118.
, grand jury
6.
ic.538.
fisc.2d 407.
Ohio---State v. Schwab, 143 N.E. 29, 109 Ohio St. 532, 2 Ohio Law
Abs. 196, 21 Ohio Law Rep. 602.
N.Y.S.2d 724, 55
State ex reI. Shoop v. Mitrovich, 448 N.E.2d 800, 4 Ohio St.3d 220,
4 D.B.R. 575.
. D.2d 672.
Broad power
U.S.-lil re Grand Jury 79-01, D.C.Ga., 489 F.Supp. 844.
Hawaii-Matter of Moe, 617 P.2d 1222, 62 Haw. 613.
01 Misc.2d 7477.
94.
822.
Sanctions
98. La.-State ex reI. De Armas v. Platt, 192 So. 659, 193 La. 928.
401
78
GRAND JURIES
38A C.J.S.
Nature of investigation
Judiciary must refrain from interfering unduly with the grand jury
through any investigatory stage of its work, whether the investigation is
reportorial or inquisitorial or both in nature.
Nev.-Matter of Report of Washoe County Grand Jury, 590 P.2d 622,
95 Nev. 121.
22.
24.
Irreparable harm
Courts may exercise supervisory power over grand jury where there
is a clear potential for a violation of rights either of a witness or of a
nonwitness, if the violation cannot be corrected at a later stage.
U.S.-In re Grand Jury Investigation of Hugle, C.A9(Cal.), 754 F.2d
863.
Speculation insufficient
U.S.-U.S. v. Claiborne, C.A.9(Nev.), 765 F.2d 784, certiorari denied
106 S.Ct. 1636, 475 U.S. 1120, 90 L.Ed.2d 182.
U.S. v. J. Treffiletti & Sons, D.C.N.Y., 496 F.Supp. 53.
Scrutiny
Any restraints on gran.d jury investigation must be carefully scrutinized.
Ariz.-Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260.
Appellate courts
Appellate courts are particularly reluctant to intrude into grand jury
proceedings.
Prosecutorial misconduct
(1) Federal courts' limited supervisory power over grand jury proceedings may not be used as means of prescribing standards of
prosecutorial conduct in the first instance.
U.S.-U.S. v. Sitton, C.A9(Cal.), 968 F.2d 947, certiorari denied
Romero v. U.S., 113 S.O. 478, 506 U.S. 979, 121 L.Ed.2d 384 and
113 S.O. 1306, 507 U.S. 929, 122 L.Ed.2d 695.
(2) Federal district court had no supervisory powers over grand jury
so as to require district court to make in camera inspection of grand
jury proceedings to determine whether prosecutor's misconduct in
grand jury violated defendant's right to due process.
U.S.-U.S. v. Stout, C.A7(III.), 965 F.2d 340.
27. N.Y.-Kuriansky v. Seewald, 1 Dept., 544 N.Y.S.2d 336, 148
AD.2d 238, appeal denied 549 N.E.2d 478, 74 N.Y.2d 616, 550
N.Y.S.2d 276.
People v. Ackrish, 400 N.Y.S.2d 684, 92 Misc.2d 431.
18. U.S.-U.S. v. Dionisio, III., 93 S.O. 764, 410 U.S. 1,35 L.Ed.2d
67.
402
C.J.8.
with its
tre of its
offenses
stay its
) various
powers of
~ absence
.ression,27
)ceedings
n statutointerfere
forts of a
jury to
38A C.J.8.
GRAND JURIES
Source of Information
;upp.979.
l. 429:
e grand jury
lestigation is
90 P.2d 622,
: F.Supp. 59.
.2d 409, 173
.upp.979.
14.
I Jane Does
4.
nd jury protandards of
)rari denied
1.2d 384 and
:r grand jury
on of grand
isconduct in
!d 336, 148
ld 616, 550
n and Jane
Mont. 354.
of Supreme
7.
79
and its investigations are restricted to such offenses as are called to its attention and directed by
the court or submitted for its consideration by the
prosecuting attorney,32 and matters related to those
submitted,33 or such as fall within their knowledge
or observation,34 or such as have already been
presented before a magistrate. 35 Under some statutes, the grand jury may not investigate a matter
without the prosecutor's involvement.36
According to other authorities, a grand jury has
plenary inquisitorial powers, without any instruction or authority from the court, and may, on its
own motion, originate charges against offenders,
regardless of how the information on which it acts
is brought to its attention,37 and may initiate an
investigation 38 without court authorization 39 or a
formal charge,4 and may investigate crimes not
specified by the prosecutor.4t A grand jury may
act on information acquired from any source,42 including tips and rumors,43 evidence offered by the
prosecutor,44 or the personal knowledge of its own
members.45
403
80
GRAND JURIES
80.
38A C.J,s.
381
ryi
rest
the
Effe,
Tl
thor
erall
eeed
COnfl
offer
the;
alII
pubJi
givin
enrOl
throl
ings.:
An
diet j
lIDde
"I
:J
'If. '
404
Bizati
Jeder
\. C.J.S.
ation of a
le particudry is not
result in a
concerned
able leads
;ivity.56 A
lOUts of an
lch person
38A C.J.S.
GRAND JURIES 81
t;"
"';~~
ld jury is
by that of
lnvestigate
r,65 but can
its territo-
:. 306-People
53 N.Y.S. 295,
218 N.Y. 644.
, June, 1938, 2
.S.2d 841, 264
People ex reI.
503, 87 L.Ed.
88 L.Ed. 488,
) U.S. 808, 88
!d 197.
y, C.AIII., 565
The fact that an agency or department has authority to conduct administrative proceedings generally does not prevent a grand jury from proceeding under its general powers. 70 A statute
conferring original jurisdiction of certain specific
offenses on justices of the peace does not exclude
the jurisdiction of the grand jury to inquire into
all public offenses, where a statute declares all
public offenses indictable; 71 nor does a statute
giving a specified commission permissive power to
enforce the statute prevent enforcement thereof
through the usual method of grand jury proceedingS.72
Any duly constituted federal grand jury can indict for any federal crime.73 Thus, an indictment
under the Racketeer Influenced and Corrupt Organizations Act can be returned even by an ordinary
federal grand jury,74 even if a special grand jury is
in existence.75
Time of offense.
In the absence of a statute to the contrary, a
grand jury has jurisdiction of offenses committed
after it has been impaneled and sworn. 76 A grand
jury may investigate a course of conduct continuing
during its inquiry.77 However, some authorities
66. Ariz.-Franzi v. Superior Court of Arizona In and For Pima
County, 679 P.2d 1043, 139 Ariz. 556.
67. CaI.-Samish v. Superior Court in and for Sacramento County, 83
P.2d 305, 28 C.A.2d 685.
7.
tutions
Some authorities hold that, apart from its power to investi
gate crimes, a grand jury may investigate conditions of public
interest and public officers and institutions.
Library References
Grand Jury ~25, 27.
hold that the offense must precede the impaneling,78 and that the grand jury to which an allegedly perjurious statement was made cannot indict for
perjury.79 The effect of the running of a statute of
limitations is considered infra 82.
405
I n
81
38A C.J.S.
GRAND JURIES
83.
- - Effect of Defense
Library References
Library References
Matters covered
Function of grand jury is to hear and examine evidence concerning
misconduct, nonfeasance and neglect in public office, whether criminal
or otherwise:
N.Y.-Matter of Doe, 456 N.Y.S.2d 312, 117 Misc.2d 197.
Except to the extent that its powers of investigation and presentment are limited and restricted by
the statutes authorizing its organization,97 a special
grand jury when legally organized is generally
regarded as a valid grand jury for every purpose
the same as a regular one,98 and may as a general
rule investigate any offense committed within the
jurisdiction of the court,99 and is not restricted to
the investigation of offenses committed after the
regular grand jury has adjourned.1 A special investigating grand jury has broad investigative power.2
The fact that a special grand jury is assembled to
consider certain matters does not prevent it from
406
j
. (
SA C.J.S.
I grand jury is
nd may generalrisdiction of the
of investigarestricted by
n,97 a special
is generally
Tery purpose
as a general
!d within the
restricted to
;ed after the
A special inItigative powassembled to
it from
~vent
38A C.J.S.
GRAND JURIES 84
for the presentation of evidence. ll Any such attorney receiving information concerning such an alleged offense from any person shall, if requested by
such other person, inform the grand jury of such
alleged offense, the identity of such other person,
and such attorney's action or recommendation. I2
It has been held that a special grand jury requires close scrutiny by the court.6
Under some statutes, a special grand jury is
invested with much broader investigative powers
than a regular grand jury, but no indicting power.7
Some statutes provide for a statewide grand jury
which can investigate only offenses involving activity in multiple counties.s
84.
07.
,96.
. 211.
'4.
Library References
Grand Jury -24-26.
that they be part of single transaction nor does it require that offenses
be committed by same person or persons.
Fla.-State v. Barnett, App., 339 So.2d 1159, appeal after remand 344
So.2d 863.
9.
18 U.S.C.A. 3332(a).
Disposition
407
84
38A C.J.S.
38)
vise
GRAND JURIES
matt
recei
repOl
85.
Research Note
"
lI: i
I
~','
It:!
8l
It
rep(
by
dut~
witt
beel
prm
mac
any
retu
and
SOlI
rep(
noi
A
eerr
em.ll
Unless otherwise provided by statute, an accusation in the nature of a presentment must have the
concurrence of the same number of jurors that is
required to find an indictment.32
33. '
Ia-
WIS.-
34_
Ky.-
Matt
Thl
insuff
repor
28. F1a.--Skipper v. Schumacher, 169 So. 58, 124 Fla. 384, appeal
dismissed and certiorari denied 57 S.O. 39, 299 U.S. 507, 81 L.Ed.
376.
cbarg
3S.
Wis.-In re Grand Jury Report, 235 N.W. 789, 204 Wis. 409.
Ky.-
WlS-~
Purpose of abolition
In abolishing presentments, aim was to avoid infonnal and haphazard charges and findings by grand juries and to focus jury's attention
on whether an indictment should be found by applying standard
specified in rule.
~.
3Il
~.
of
I'IIbI
On
pabIi<
3~.
Jfi;s..
...
Pa.-Petition of McNair, 187 A 498, 324 Pa. 48, 106' AL.R. 1373COIiImonwealth v. Green, 17 A 878, 126 Pa. 531.
4L i
147
La.--State ex reI. De Armas v. Platt, 192 So. 659, 679, 193 La. 928.
la.S.C
408
Mil
:SA C.J.S.
38A C.J.S.
to certify to
s been held
GRAND JURIES 87
A grand jury's find:ing or report is not a verdict
or judgment,41 but amounts at most to an accusation.42 A report is not an appealable order. 43
Report
1t by him to
nt. 25
authority to
and effect of
Illected in its
;s an opinion
Library References
Grand Jury e=>42.
A hypertechnical interpretation of a statute concerning reports should not be allowed to defeat the
ends of justice.40
33. Tenn.-State v. Taylor, Cr.App., 653 S.W.2d 757.
34.
WIS.-In re Grand Jury Report, 235 N.W. 789, 204 Wis. 409.
36.
12.
123.
Matters to he reported
by Court
Library References
~harged
WIS.-In re Grand Jury Report, 235 N.W. 789, 204 Wis. 409.
42. La.-State v. Taylor, 139 So. 463, 173 La. 1010, certiorari denied
52 S.Ct. 408, 285 U.S. 547, 76 L.Ed. 938.
lis. 409.
N.M.-McKenzie v. Fifth Judicial Dist. Court, App., 765 P.2d 194, 107
N.M. 778, certiorari denied 765 P.2d 758, 107 N.M. 785.
Isecutor need
mt or super-
n.
38. La.-State ex rel. De Armas v. Platt, 192 So. 659, 193 La. 928.
Public officer
Only action that grand jury can take after investigating conduct of
public officer is to return presentment or indictment.
Miss.-Petition of Moore, 336 So.2d 736.
La.-State ex rel. De Armas v. Platt, 192 So. 659, 193 La. 928.
County, 83 P. 580,
4L Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed 131 So.
147, 100 Fla. 373.
La.-State v. Taylor, 139 So. 463, 173 La. 1010, certiorari denied 52
S.Ct. 408, 285 U.S. 547; 76 L.Ed. 938.
123.
409
87
GRAND JURIES
38A C.J.S.
When appropriate
. Grand jmy report proposing recommendations for legislative, executive or administrative action will be issued when governmental system
or situation investigated is not so seriously flawed that indictment or
individual disciplinary action is called for, but where, nonetheless,
system is found to be less than perfect and public interest would be
served by making corrective changes.
N.Y.-Matter of Report of August-September 1983 Grand Jmy III,
Term XI, Suffolk County, 2 Dept., 479 N.Y.S.2d 226, 103 AD.2d
176.
Combination improper
Wis.-In re Grand Jmy Report, 235 N.W. 789, 204 Wis. 409.
Identifiable person
Mere reference to position or title will not necessarily cause person
to be identifiable when there are many persons in that position or title.
N.Y.-Matter of Report of August-September 1983 Grand Jmy III,
Term XI, Suffolk County, 2 Dept., 479 N.Y.S.2d 226, 103 AD.2d
176.
410
C.J.S.
38A C.J.8.
interest
unnecesished by
identiary
GRAND JURIES
Tense is
mtifiable
official. 61
r recomninistramtifiable
:l that a
(1983-1984
.ptr. 744, 44
Criminal conduct.
199.
4.
88
Library References
Grand Jury <S:o>42.
on Novemf Wabasha
~d 253, 309
I March 15,
of washoe
Iber Term,
183 Mich.
mary 1978
use person
on or title.
Jury III,
03 A.D.2d
Inextricable relationship
"E.2d 835.
72. N.J.-State v. Porro, 377 A.2d 909, 152 N.J.Super. 179, appeal
dismissed 391 A.2d 517, 77 N.J. 504.
411
88
38A C.J.S.
GRAND JURIES
a. In general
b. Evidentiary support for report
c. Procedure
a. In General
A court may review a grand jury report and may, in
appropriate circumstances, prevent the release to the public of all
or part of the report.
Library References
Grand Jury <$0>42.
Make readable
412
A. C.J.S.
38A C.J.S.
determine
lS of legal
~fining the
nay in apge a1184 or
. whether a
public in-
determine
wfully,87 or
ether there
Lirements.89
I determine
motives, or
or if other
the report
. it contains
tl 91 or the
) the public
lot justified
irresponsimay justify
per instrucor create a
~ is a failure
Iowa, N.D.lowa,
GRAND JURIES
Effect of sealing.
89
that, regardless of whether a public official is involved, a report must have a substantial found ation. 7
Under some statutes, the court shall make an
order accepting and filing the report as a public
record only if the court is satisfied that the report
is supported by the preponderance of the credible
and legally admissible evidence,8 and that, in the
case of a report concerning misconduct, nonfeasance, or neglect in public office by a public servant, each person named therein was afforded an
opportunity to testify before the grand jury prior to
the filing of such report.9
ury of Columbia
98. N.Y.-Matter of Additional Grand Jury, Orange County, MayJune 1990 Term, 2 Dept., 582 N.Y.s.2d 729, 182 AD.2d 688.
413
89
38A C.J.S.
GRAND JURIES
jury,13 Under some statutes, where a report relates to an individual, the government must furnish
such individual with a copy of the report, and give
such individual a specified period of time to seek to
repress or expunge the report. I4 Failure to comply
with these requirements justifies expungement of
the report. I5
Under some statutes, in the case of a report
concerning misconduct, nonfeasance, or neglect in
office by a public servant, after the court accepts
the report such public servant may file an answer. I6
It has been held that the purpose of the answer is
to assist the court in deciding whether the report
should be accepted for filing as a public record, that
the answer may include additional facts which were
not before the grand jury, and that the court
should reconsider its decision to accept the report
in light of any defense presentedP
Some authorities hold that an order barring the
filing of a report is not appealable. IS
90.
feasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation
of removal or disciplinary action; or regarding
organized crime conditions in the district.I9
The court to which such report is submitted shall
examine it and the minutes of the special grand
jury and, with certain exceptions, shall make an
order accepting and filing such report as a public
record only if the court is satisfied that it complies
with the foregoing provisions concerning subject
matter 20 and that the report is based upon facts
revealed in the course of an investigation authorized by statute 21 and is supported by the preponderance of the evidence.22
When the report involves a recommendation of
removal or disciplinary action, the court must also
be satisfied that each person named therein and
any reasonable number of witnesses in his behalf as
designated by him to the foreman were afforded an
opportunity to testify before the grand jury prior to
the filing of such report.23 Otherwise, the court
must be satisfied that the report is not critical of an
identified person. 24
Whenever the court to which a report recommending removal or disciplinary action is submitted
is not satisfied that the report complies with statutory requirements, it may direct that additional
testimony be taken before the same grand jury, or
it shall make an order sealing such report, and it
shall not be filed as a public record or be subject to
subpoena or otherwise be made public until such
requirements are met.25
18 U.S.C.A 3333(b).
18 U.S.C.A 3333(b)(1).
18 U.S.C.A 3333(b)(2).
25.
18 U.S.C.A 3333(e).
414
~A
C.J.S.
,mitted shall
)ecial grand
ill make .an
as a public
t it complies
ring subject
I upon facts
ation authothe preponaendation of
rt must also
therein and
his behalf as
~ afforded an
jury prior to
,e, the court
critical of an
recomis submitted
s with statuat additional
rand jury, or
eport, and it
be subject to
ic until such
~port
38A C.J.S.
GRAND JURIES
a pending criminal matter, it shall order such report sealed and such report shall not be subject to
subpoena or public inspection during the pendency
of such criminal matter, except upon order of the
COurt. 26
h. Procedure
Where a federal special grand jury recommends removal of
or disciplinary action against a public officer or employee, each
public officer or employee named in the report is given an
opportunity to file an answer.
criminal
91.
In General
Library References
uch report as
lsideration of
or instrumentality
~ng
91
judgment of the grand jury.35 Under some statutes the grand jury may fix the rules or methods of
its procedure,36 as far as they are discretionary and
not violative of any statute or immemorial usage
having the force oflaw.37
In its proceedings the grand jury can function
ordinarily only as a body, under and within the
limitation of its legal authority, and while in official
session in the grand jury room.38 In the absence of
Fla.-Skipper v. Schumacher, 169 So. 58, 124 Fla. 384, appeal dismissed and certiorari denied 57 S.Ct. 39, 299 U.S. 507, 81 L.Ed. 376.
415
t Ir nlllr~~I~.IiIJ.!:::.:::_ii".mUIII.a."------~
91
GRAND JURIES
38A C.J.S.
a constitutional or statutory provision to the contrary the grand jury may meet outside the courthouse, with the consent and approval of the COurt.39
An individual member of the grand jury is without
authority to perform any act as a grand juror
except those official duties imposed by law and at a
regular and valid session of the grand jury.40
.officers or personnel.
In the absence of statute, it is not necessary to
the legal constitution of a grand jury or to the legal
transaction of any business coming before it that
any officer should be appointed to wait on it.47
Under some statutes an officer must be designated
to attend the sessions of the grand jury.48 Pursuant to some statutes, at the request of a special
grand jury the court may provide it with appropriate specialized personnel for investigative purposes.49
39. Ind.-Reed v. State, 152 N.E. 273, 198 Ind. 338.
40. Cal.-Clinton v. Superior Court in and for Los Angeles County,
73 P.2d 252, 23 C.A.2d 342.
Fla.--Skipper v. Scbumacber, 169 So. 58, 124 Fla. 384, appeal dismissed and certiorari denied 57 S.O. 39, 299 U.S. 507, 81 L.Ed. 376.
41. Mass.-Com. v. McLeod, 477 N.E.2d 972, 394 Mass. 727 certiorari denied Aielio v. Massachusetts, 106 S.O. 248, 474 U.S.' 919, 88
L.Ed.2d 256.
42. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
43. Minn.--State v. Johnson, 441 N.W.2d 460.
44. Minn.--State v. Johnson, 441 N.W.2d 460.
45. Mass.-Attorney General v. Pelietier, 134 N.E. 407, 420, 240
Mass. 264.
46. U.S.-U.S. v. Rintelen, D.C.N.Y., 235 F. 787.
47. N.C.--State v. Perry, 44 N.C. 330.
48. m.-People v. Gould, 178 N.E. 133, 345 m. 288.
Library References
Grand Jury <S=>3, 13, 33.
Prosecutors can insure that perceptions of fairness are maintained by giving replacement and
49. Role
416
38A C.J.S.
jury must consiness hours of
made between
o convenes the
of the COurt.51
irl may include
e.52
GRAND JURIES 94
38A C.J.S.
absent grand jurors an opportunity to review transcripts of missed sessions.59 Giving them summaries is not recommended unless for some valid reason transcripts are not available. 60
Some statutes provide that a grand jury proceeding is defective when it is conducted before fewer
than a specified number of grand jurors.61
93.
Voting
~ present every
Iresent for the
e.54
as at least 12
~d and vote to
1, the court has
ments. 55 Howack of continui. on the indictthat it is not
rors voting to
lance when all
Ised.57 If final
he fact that the
U'e not present
Library References
Grand Jury <;;:;>33.
11.58
~98.
61.
Sixteen
Nev. 944.
64.
Nev. 944.
.p. 814, affirmed 655
94.
Better practice
76. N.M.--State v. Evans, App., 557 P.2d 1114, 89 N.M. 765, certiorari denied 558 P.2d 619, 90 N.M. 7.
77. Alaska-Boggess v. State, App., 783 P.2d 1173.
1134.
417
,-, [lllllI'Itl~Ii-::
94
GRAND JURIES
38A C.J.S.
95.
a. In General
Some statutes or rules enumerate the persons, such as the
witness under examination, who may be present at a grand jury
proceeding.
Library References
Grand Jury e->32, 39.
Under the rule, or a statute, forbidding the presence of any person other than the grand jurors,
except as required or permitted by law, the presence of the trial judge during the investigation is
improper; 92 the court cannot interfere with or
Victim-witness assistant
Mass.~m.v.
Grand jury aides are not authorized to be in grand jury room during
hearing by statutes governing time and place for hearing and assistance
for grand jury uuless they fall into specified categories.
N.M.-Davis v. Traub, 565 P.2d 1015, 90 N.M. 498.
Paralegal
Minn.-Dwire v. State, App., 381 N.W.2d 871, review denied.
88. U.S.-U.S. v. Heinze, C.C.N.Y., 177 F. 770.
89. U.S.-U.S. v. Virginia-CaroJina Chemical Co., C.C.Tenn., 163 F.
66.
90. Cal.-Husband v. Superior Court in and for Los Angeles County,
17 P.2d 764,128 CA 444.
91. Mass.-In re Opinion of Justices, 123 N.E. 100, 232 Mass. 601.
418
~====--
- -- - -
38A C.J.S.
38A C.J.S.
who maybe
session are
llitness under
:d and, for the
mographer or
GRAND JURIES 95
Witness.
One witness cannot be present while another is
undergoing examination,96 although there is some
authority to the contrary.97 After a witness testifies, the witness cannot remain 98 and participate in
the interrogation of other witnesses.99 A law enforcement official serving as a witness cannot participate in the questioning of other witnesses.1 In
the case of a federal grand jury, a witness may be
present only if the witness is under exaD1ination.2
When it is necessary to examine evidence which
can only be presented through the use of complicated machinery, persons with the requisite skills to
operate such machines and to give testimony concerning their operations may be present.3 Where a
qualified projectionist is duly sworn as a witness
available for grand jury questions, shows films as
instructed, and is not present during the presentation of other evidence or during the deliberations,
he is a witness under exaD1ination and may be
present.4
93. Mo.-State ex reI. Graves v. Southern, 124 S.W.2d 1176, 344 Mo.
14.
94.
La.-State ex reI. De Armas v. Platt, 192 So. 659, 193 La. 928.
Interpreter.
The presence of an interpreter and the employment of his services in the examination of witnesses
whose testimony could not otherwise be made intelligible to the grand jury are not improper,5 provided the grand jury requests his assistance and he is
sworn to keep the secrets of the grand jury room
and to remain therein only during the performance
of his duties. 6 In the case of a federal grand jury,
interpreters when needed may be present.7 Under
some statutes an interpreter is permitted to be
present,8 although he is a witness in the case,9 or
although he arrested accused. IO
Rationale
5.
6.
'8.
view denied.
8.
9.
Dual role
419
95
GRAND JURIES
38A C.J.S.
96.
97.
Library References
Research Note
Library References
Grand Jury -39.
Evidence
Evidence may include evidence necessary to challenge indictment,
including colloquy between grand jurors and prosecutor.
U.S.-Matter of Truax, D.C.Cal., 439 F.Supp. 1198.
28. III.-People v. Munson, 150 N.E. 280, 319 III. 596.
29. U.S.-U.S. v. Goldman, D.C.N.Y., 439 F.Supp. 337.
30. U.S.-In re Grand Jury Nov. 1989, E.D.Ark., 735 F.Supp. 323.
420
C.J.S.
resence of
shorthand
r,
for the
\Tapher or
Ie present
~uthorized
for motion to
d generally in
will be set
was influis substanlauthorized
ven if the
stifles disrender the
29 It has
Ie presence
byreexam:e presence
jury room
ufficient to
~r such cir-
38A C.J.S.
GRAND JURIES
I.
nge indictment,
Case-by-case
Each si.tuation involving unautborized entry into grand jury room
while grand jury is in session should be addressed on sui generis basis.
U.S.-U.S. v. Computer Sciences Corp., C.AVa., 689 F.2d 1181, 68
AL.R.Fed. 783, certiorari denied 103 S.Ct. 729, 459 U.S. 1105, 74
L.Ed.2d 953.
F.Snpp. 323.
Question of fact
7.
97
421
97
GRAND JURIES
38A C.J.S.
body, and was otherwise active in finding the indictment, will invalidate it.44
98.
Library References
Grand Jury <;:::>33.
Participation of Accused
Library References
Grand Jury <;:::>35.
45. Ala.-King v. Second Nat. Bank & Trust Co. of Saginaw, Mich.,
173 So. 498, 234 Ala. 106.
46. Ala.-King v. Second Nat. Bank & Trust Co. of Saginaw, Mich.,
173 So. 498, 499, 234 Ala. 106.
47. W.Va.--State ex reI. Miller v. Smith, 285 S.E.2d 500, 168 W.Va.
745.
48. Ga.-ill re Lester, 77 Ga. 143.
La.--State v. Stewart, 14 So. 143, 45 La.Ann. 1164.
49. Ohio-Walton v. Judge, 597 N.E.2d 162,64 Ohio St.3d 564.
50. U.S.-ill re New Haven Grand Jury, D.C.Conn., 604 F.Supp. 453.
51. lli.-Peoplev. Parker, 30 N.E.2d 11,374 lli. 524, certiorari denied
Parker v. People of State of illinois, 61 S.Ct. 836, 313 U.S. 560, 85
L.Ed.1520.
52. U.S.-Application of Wood, C.A.8(Neb.), 833 F.2d 113.
53. U.S.-Clark v. Solem, C.A.S.D., 628 F.2d 1120.
54. Ohio-Walton v. Judge, 597 N.E.2d 162, 64 Ohio St.3d 564.
55. Me.-Petition of Thomas, 434 A2d 503, 24 AL.R.4th 306.
56. U.S.-Application of Wood, C.A.8(Neb.), 833 F.2d 113.
422
C.J.S.
[)r has no
t permisividual to
eves that
lorize an
Ild jury.57
,te citizen
jury and
,to take a
hich may
s for the
) indict.60
force the
tigation. 61
'ovision, a
otherwise
e petition
3ed supra
38A C.J.S.
GRAND JURIES
At a grand jury proceeding, accused or the person under investigation generally has no right to be
present,62 to appear 63 in person or by counsel,64 to
be heard,65 or to testify.66 Such person has no
right to communicate with the grand jury without
the approval of the prosecutor or the COurt.67 Such
person generally is not entitled to notice that the
grand jury is investigating a charge 68 or that he is
the target of a grand jury investigation.69 Exceptional cases may justify a departure from these
rules. 70
In some states, although accused has no absolute
right to be present, accused is normally afforded
the privilege of attending the grand jury proceedings.71 The court has discretion to exclude a potential accused. 72 Accused should not be excluded
merely because he is an attorney.73 A grand jury
has no authority, unless directed by the court, to
allow accused,74 or his counsel,75 to come before it.
62. Ala.-Rheuark v. State, Cr.App., 601 So.2d 135, certiorari denied.
erson under
present, to
fy.
infra 170,
d is treated
Provisions
ipation
a. In general
b. Notice to accused
for
Partic-
a. In General
Some statutes specifically give accused or the person sub
ject to investigation a right to testify before the grand jury.
Library References
Grand Jury 0=>35.
No constitutional right
Nev.-Gier v. Ninth Judicial Dist. Court of State of Nev., In and For
County of Douglas, 789 P.2d 1245, 106 Nev. 208.
'
No constitutional right
67. U.S.-ln re New Haven Grand Jury, D.C.Conn., 604 F.Supp. 453.
68. CaI.-People v. Goldenson, 19 P. 161, 76 C. 328.
Tenn.-State v. Crane, Cr.App., 780 S.W.2d 375, rehearing denied
1989 WL 74944.
51, certiorari
L.Ed.2d 746.
51, certiorari
L.Ed.2d 746.
51, certiorari
L.Ed.2d 746.
8.
100. - - Special
pp,453.
Jermission to
:s on its face
it substantial
must also be
~g citizen to
ty to convey
uate its bona
al determinaike threshold
vexatious, of
'atification of
rinistration of
r appropriate
100
No constitutional right
ill.-People v. Creque, 382 N.E.2d 793, 22 ill.Dec. 403, 72 ill.2d 515,
certiorari denied Creque v. illinois, 99 S.O. 2010, 441 U.S. 912, 60
L.Ed.2d 384.
65. U.S.-U.S: v. Bolles, D.C.Mo., 209 F. 682.
75.
Live testimony
423
2aL.Ja:t. L-~:
100
GRAND JURIES
38A C.J.S.
Notice to prosecutor.
Under some statutes, accused has the right to
testify only if, prior to the filing of any indictment
or any direction to file a prosecutor's information in
the matter, he serves upon the prosecutor a written
notice making a request to testify.83
h. Notice to Accused
Government officers.
Under some statutes, certain government officers have a right to be served with the indictment
against them before it goes to the grand jury, to be
present during the presentation of the evidence to
the grand jury, and to make sworn statements to
the grand jury.8! Such statutes have been upheld
as not denying equal protection even though they
are linrited to officers with broad governing power.82
Forfeiture
Form
To effectuate defendant's right to testify before a grand jury, defendant must activate it in affirmative manner by making unqualified,
specific request to come before grand jury and testify.
N.Y.-People v. Leggio, 507 N.Y.S.2d 131, 133 Misc.2d 320.
Oral notice
Must waive immunity
N.Y.-People v. Lyon, 442 N.Y.S.2d 538, 82 AD.2d 516.
People v. Hylton, 529 N.Y.S.2d 412, 139 Misc.2d 645.
(1) Insufficient.
N.Y.-People v. Hunter, 1 Dept., 564 N.Y.S.2d 391, 169 AD.2d 538,
appeal denied 572 N.E.2d 622, 77 N.Y.2d 907, two cases, 569
N.Y.S.2d 939.
(2) People could not require defendant who had served oral grand
jury notice to testify before grand jury that had already voted an
indictment, where prosecutor ignored defendant's oral expression of
his desire to testify and obtained indictment before defendant's written
confirmation could"be delivered.
N.Y.-People v. Spence, 526 N.Y.S.2d 747, 139 Misc.2d 77.
Waiver
84. Nev.-Sheriff, Clark County, Nev. v. Bright, 835 P.2d 782, 108
Nev. 498--Johnston v. State, 822 P.2d 1118, 107 Nev. 944.
85. N.M.-State v. Gonzales, App., 632 P.2d 748, 96 N.M. 513,
certiorari denied 632 P.2d 1181, 96 N.M. 543-Rogers v. State, App.,
608 P.2d 530, 94 N.M. 218.
86. N.M.-Rogers v. State, App., 608 P.2d 530, 94 N.M. 218.
87. Nev.-Sheriff, Humboldt County v. Marcum, 783 P.2d 1389, 105
Nev. 824, opinion amended on other grounds 790 P.2d 497.
88. N.M.-Rogers v. State, App., 608 P.2d 530, 94 N.M. 218.
424
38A C.J.S.
the right to
ny indictment
information in
utor a written
~ation has a
~ve him the
right
right
investigation
ld jury, some
of the grand
as a target.85
able diligence
lOtice must be
:eive notice in
; to appear. 88
period of nole notice may
38A C.J.S.
GRAND JURIES
be oral.90
Under some statutes, the prosecutor is not
obliged to inform a person that a grand jury proceeding against hin1 is pending, in progress, or
about to occur unless such person is a defendant
who has been arraigned in a local criminal court
upon a currently undisposed of felony complaint
charging an offense which is a subject of the prospective or pending grand jury proceeding.9! In
such a case, the prosecutor must notify defendant
or his attorney of the proceeding 92 and accord
defendant a reasonable time to exercise his right to
appear as-a witness. 93 The notice must be reasonably calculated to apprise defendant of the proceedings so as to permit hin1 to exercise the right to
testify,94 and should give defendant some idea of
the nature and scope of the inquiry,95 but need not
inform defendant of all possible charges the grand
jury is likely to consider,96 or give defendant a
preview of the grand jury presentation. 97
Some statutes provide that, upon service by defendant upon the prosecutor of a notice requesting
appearance, the prosecutor must serve upon defen-
101
a.
b.
c.
d.
a. In General
In a grand jury proceeding, there is generally no right to
counsel, or at least no constitutional right to counsel.
Library References
Grand Jury ~35, 36.6.
y.
:.2d 320.
Delay in arraignment
Attorney
c.2d 77.
efendant to testify
umstances.
\.D.2d 538, appeal
, 569 N.Y.S.2d 939.
835 P.2d 782, 108
944.
~ev.
99. N.Y.-People v. Davis, 509 N.Y.S.2d 257, 133 Misc.2d 1031People v. Martinez, 443 N.Y.S.2d 576, 111 Misc.2d 67.
425
101
GRAND JURIES
38A C.J.S.
h. Presence of Counsel
A grand jury witness generally has no right to have counsel
present in the grand jury room, or at least no constitutional right.
However, some statutes provide such a right.
A grand jury witness has no right to have counsel present in the grand jury room,12 or at least no
constitutional right.13 Even where the constitutional right to counsel has attached, the witness may
not bring counsel into the room, where the witness
has been granted immunity.14 Indeed, it has been
held that counsel for accused is not allowed in the
room,15 and that the court may not allow counsel
for accused to be present. 16
Jury Matter No. 86--525-5, E.D.Pa., 689 F.Supp. 454-U.S. v. Konefal, D.C.N.Y., 566 F.Supp. 698.
No constitutional right
13. Colo.-People ex reI. Losavio v. J.L., 580 P.2d 23, 195 Colo. 494.
Lineup directive
Validity
Proposed bill authorizing presence of counsel for witness before
grand jury but providing that no witness may refuse to appear for
reason of unavailability of counsel for that witness would not violate
equal protection of laws under State or Federal Constitntion.
Mass.--Opinion of the Justices to the Governor, 371 N.E.2d 422, 373
Mass. 883, 90 AL.R3d 1333.
(1) In general.
Notes
Attorney was entitled to take brief and reasonable notes during
course of a witness' testimony.
N.Y.-Grand Jury ex reI. Riley, 414 N.Y.S.2d 441, 98 Misc.2d 454.
Silence
Civil matter
Public official, subpoenaed to appear before civil session of grand
jury, was not entitled to have his attorney present during his testimony.
426
:8A C.J.S.
, to have counsel
Ititutional right.
ty Grand Jury), 1
nied.
23, 195 Colo. 494.
tn. 677, certiorari
N.J. 528.
l7.
'.2d 22, certiorari
102l.
=::.373.
n.28l.
23, 195 Colo. 494.
38A C.J.S.
at least where the witness is a target. 18 Under
some statutes, certain government officers who are
targets have the right to the presence of counsel
during the presentation of evidence to the grand
jury. 19 Some authorities hold, pursuant to the
state constitution, that a witness who is a minor has
right to be accompanied by an attorney.20
c. Consultation
18. N.M.-State v. Hall, App., 704 P.2d 461, 103 N.M. 207.
Concerning self-incrimination
21. Jurisdiction
sc.2d 807.
witnesses may not absent themselves during questioning to consult with counsel outside the room. 27
Under some statutes, a person who is called by
the people as a witness and requested to waive
immunity has a right to confer with counsel before
deciding whether he will comply with such request,
and must be afforded a reasonable time in which to
obtain and confer with counsel for such purpose. 28
23.
Colo.~People
24.
Notes
(1) Grand jury's refusal to permit witness to take notes of his own
testimony did not infringe witness' right to counsel.
N.Y.-People v. Doe, 406 N.Y.S.2d 650, 95 Misc.2d 175.
(2) Grand jury witness has no right to take notes of his testimony,
particularly of the questions asked, when he has counsel within a few
feet of the witness chair and may consult with his counsel within
minutes of the alleged offensive question.
, N.Y.-People v. Doe, 406 N.Y.S.2d 650, 95 Misc.2d 175.
22. U.S.-Matter of Grand Jury Subpoena, C.AN.D., 739 F.2d
1354-ln re Taylor, C.AN.Y., 567 F.2d 1183.
Immunized witness
Witness, who was granted use immunity and was not target of
investigation, would not be permitted to claim consultation privilege
after each question or sequence of questions, nor to write down each
question as asked or her answers thereto.
U.S.-U.S. v. Soto, D.C.Conn., 574 F.Supp. 986.
27. Colo.-People ex reI. Losavio v. J.L., 580 P.2d 23, 195 Colo. 494.
28. N.Y.-People v. Cooper, 526 N.Y.S.2d 910, 139 Misc.2d 44.
29. U.S.-In re Grand Jury, D.C.Tex., 446 F.Supp. 1132.
30. U.S.-In re Grand Jury, D.C.Tex., 446 F.Supp. 1132.
31. U.S.-Matter of Investigative Grand Jury Proceedings on April 6,
1977, D.C.Va., 432 F.Supp. 50.
32. U.S.-In re Investigation Before Feb., 1977, Lynchburg Grand
Jury, C.A.Va., 563 F.2d 652.
N.Y.-Application of Abrams, 465 N.Y.S.2d 798, 120 Misc.2d 134.
33. U.S.-In re Grand Jury Investigation, D.C.Pa., 436 F.Supp. 818.
427
101
GRAND JURIES
38A C.J.S.
Participation of Prosecutor
Library References
Grand Jury <p34.
The practice concerning attendance by the prosecuting officer at the sittings of the grand jury is not
uniform. 43
It has been held that the prosecuting officer
should not be allowed in the grand jury room 44
during the examination of witnesses,45 or that the
prosecutor may not appear before the grand jury
for any purpose other than the giving of legal
advice,46 such as the examination of witnesses,47 or
.the recording of testimony.48 A rule or statute
against the prosecuting officer appearing before
the grand jury does not apply where he so appears
merely as a witness. 49
On the other hand, under some statutes, the
prosecuting officer is required to attend the grand
jury,50 or is permitted so to dO. 51 Under such
statutes the prosecuting officer must be permitted
to act before the grand jury, in his official capacity,
so long as he is not disqualified. 5~ As a general
rule, the prosecuting officer may, either of his own
motion or by the request of the grand jury, be
present before that body when it is not deliberating
or voting on its finding. 53 .
Presence during deliberation or voting.
Some authorities hold that the prosecutor may
be present even during deliberation or voting, with
the consent of the grand jury,54 and according to
some decisions his mere presence at such times will
not constitute such an irregularity as, in the absence of injury. or prejudice to accused, will invali-
428
A C.J.S.
38A C.J.S.
ing officer
IrY room 44
)r that the
grand jury
.g of legal
lesses,47 or
or statute
ing before
so appears
ltutes, the
the grand
"nder such
, permitted
'.tl capacity,
a general
of his own
d jury, be
eliberating
- - Particular Persons
a. State grand jury
b. Federal grand jury
103.
notwithstanding certain defects in connection with his appointment. Even assistant or deputy prosecuting officers may do so.
Library References
Grand Jury e->34, 39.
Where a prosecuting officer is allowed to participate in or be present at state grand jury proceedings, various defects in connection with a person's
appointment as a prosecuting officer have been
held not to preclude his participation or presence.63
Where a prosecutor is unauthorized in the sense
that he lacks jurisdiction concerning the particular
matter, it has been held that the likelihood of
prejudice is sufficient to justify dismissal of the
indictment. 64
The presence of a prosecuting officer is proper
even if he is subsequently disqualified. 65
Assistant or deputy prosecuting officers and special assistants to the regular prosecuting officer,
duly authorized to assist the latter in the discharge
of his duties, are invested with the same rights and
subject to the same restrictions, with respect to
appearing before the grand jury and participating
in the proceedings before that body as the regular
prosecuting officer,66 provided they have been prop-
!cutor may"
oting, with
~cording to
I times will
in the abwill invali-
Linares v. Senkowski, 964 F.2d 1295, certiorari denied 113 S.Ct. 494,
506 U.S. 986, 121 L.Ed.2d 432.
Vote on indictment
Miss.-Hannah v. State, 336 So.2d 1317, certiorari denied 97 S.Ct.
1125, 429 U.S. 1101,51 L.Ed.2d 551.
57. U.S.-U.S. v. Central Supply Ass'n, D.C.Ohio, 34 F.Supp. 241.
58. U.S.-U.S. v. Central Supply Ass'n, D.C.Ohio, 34 F.Supp. 241.
Ind.-Turpin v. State, 189 N.E. 403, 206 Ind. 345.
La.--State v. Richey, 196 So. 545, 195 La. 319--State v. Kifer, 173 So.
169,186 La. 674, 110 AL.R. 1017.
N.M.-Baird v. State, 568 P.2d 193, 90 N.M. 667.
Tex.-Moody v. State, 121 S.W. 1117,57 Tex.Cr. 76.
Va.-Draper v. Commonwealth, 111 S.E. 471, 132 Va. 648.
W.Va.--State ex rel. Knotts v. Watt, 413 S.E.2d 173, 186 W.Va. 518.
59. Mass.-Attorney General v. Pelletier, 134 N.E. 407, 240 Mass.
264.
Mo.--State ex rel. Graves v. Southern, 124 S.W.2d 1176, 344 Mo. 14.
Pa.-Commonwealth v. Brownmiller, 14 A2d 907,141 Pa.Super. 107.
60. Fed.Rules Cr.Proc., Rule 6(d), 18 U.S.C.A
61. Fed.Rules Cr.Proc., Rule 6(d), 18 U.S.C.A
62. U.S.-In re Pantojas, C.A Puerto Rico, 639 F.2d 822.
Lewis v. Wake
73.
~8.
tI Dist., 225 P.
Unlicensed states
N.Y.-People v. Carter, 566 N.E.2d 119, 77 N.Y.2d 95, 564 N.Y.S.2d
992, certiorari denied 111 S.Ct. 1599, 499 U.S. 967, 113 L.Ed.2d 662.
Nonresidence
Or.--State v. Brumfield, 209 P. 120, 104 Or. 506.
(1) Fact that assistant district attorney was not admitted to practice
law in the State did not deny defendant due process of law absent any
prejudice to defendant apparent on record .
N.Y.-People v. linares, 550 N.Y.S.2d 703, 158 AD.2d 296, appeal
denied 554 N.E.2d 76, 75 N.Y.2d 921, 555 N.Y.S.2d 39, reconsideration denied 559 N.E.2d 690, 76 N.Y.2d 791, 559 N.Y.S.2d 996,
appeal denied 568 N.E.2d 658, 77 N.Y.2d 840, 567 N.Y.S.2d 209,
habeas corpus denied Munoz v. Keane, 777 F.Supp. 282, affirmed
.. 928.
429
!.
Ii
I.
103
38A C.J.S.
GRAND JURIES
of Interest
A prosecuting officer may be disqualified from participation in a grand jury proceeding under various circumstances.
Library References
In the case of a federal grand jury, the prosecuting officers who may be present while the grand
jury is in session are attorneys for the government.72 A state officer who has been appointed as
a special assistant to the United States Attorney
General may be present.73
Iowa-State v. Coleman, 285 N.W. 269, 226 Iowa 968.
71.
430
38A C.J.S.
38A C.J.S.
sential to the
rney specially
An attorney
attorney may
t having been
y General to
~ the oath of
illd jury,76 and
lent taking of
or Conflict
iied from particliS circumstances.
GRAND JURIES
Agency attorney.
There is no inherent conflict of interest or other
impropriety in the appointment of an agency attorney to assist in criminal proceedings before a grand
jury.90 There is no per se rule that bars a government attorney from serving before a grand jury
105
merely because he is from the agency which originated the criminal charges.91 No per se appearance of impropriety sufficient to taint a grand jury
and require its termination results merely because
the agency attorney referring a criminal matter to
the grand jury is appointed a special attorney to
assist in the grand jury investigation.92 To demonstrate a conflict of interest where an attorney for a
government agency acts as a special assistant prosecuting attorney during a grand jury investigation,
there must be an affirmative showing that the
special assistant conducted himself in such manner
as to demonstrate actual bias or conflict of interest.93
Investigation of prosecutor.
A prosecuting attorney cannot appear before the
grand jury where he is disqualified by reason of the
charge under investigation being against himself.94
Some statutes provide that neither the district
attorney nor an assistant district attorney may
participate during an investigation of the district
attorney's office or of any person officially associated with such office.95 A violation of such a statute
is presumed to be prejudicial.96
105. - - - - Prosecutor as Witness
It is improper for a government attorney to act as both
prosecutor and witness as to material facts before a grand jury.
Library References
Grand Jury 0=>34.
ler.306.
'24.
238 Mass. 379.
Misc. 932.
N.Y., 681 F.Supp.
2d 1191, certiorari
. 1095, 89 L.Ed.2d
).1048.
p.25l.
p.25l.
63 Haw. 424.
County, 266 N.W.
owa 713--State v.
93. Ohio----State v. Ross, 452 N.E.2d 339, 6 Ohio App.3d 25, 6 O.B.R.
76.
94. Ky.-NortiJcutt v. Howard, 130 S.W.2d 70, 279 Ky. 219 .
95. Okl.----State ex reI. Grand Jury of Sequoyah County v. Thornton,
653 P.2d 936.
431
105
GRAND JURIES
38A C.J.S.
- - Nature of Role
13. U.S.-U.S. v. Sears, Roebuck & Co., Inc., c.A.Cal., 719 F.2d
1386, on remand 579 F.Supp. 1055, certiorari denied 104 S.Ct. 1441,
465 U.S. 1079, 79L.Ed.2d 762.
14. U.S.-Hoffman v. U.S., Pa., 71 S.C!. 814, 341 U.S. 479, 95 L.Ed.
1118.
2.
3.
4.
5.
Purpose
Investigation
10. N.Y.-People v. Elmhurst Milk & Cream Co., Inc., 455 N.Y.S.2d
473, 116 Misc.2d 140.
11. U.S.-U.S. v. Sears, Roebuck & Co., Inc., CACal., 719 F.2d
1386, on remand 579 F.Supp. 1055, certiorari denied 104 S.Ct. 1441,
465 U.S. 1079, 79 L.Ed.2d 762.
Resubmission
12. U.S.-Hoffman v. U.S., Pa., 71 S.C!. 814, 341 U.S. 479, 95 L.Ed.
1118.
432
:.J.8.
38A C.J.8.
ate in
:ole of
with a
to see
Irotect
of ac,ecutor
)rts to
ed the
he is
dvisor,
ination
.pletely
t mainriminal
fair in
ecutors
investiThey
.er that
~,I3 and
king for
where
ut also
federal
'oke the
21. U.S. v. Busher, C.A.9(Hawaii), 817 F.2d 1409, appeal after remand 872 F.2d 431.
22. N.Y.-People v. Russo, 491 N.Y.S.2d 951, 128 Misc.2d 876.
a. In general
b. Particular matters
a. In General
The prosecutor should not unduly influence or invade the
province of the grand jury.
Library References
Grand Jury 0=034.
24. U.S.-In re Immunity Order Dated April 21, D.C.N.Y., 1982, 543
F.Supp. 1075.
25. U.S.-U.S. v. Central Supply Ass'n, D.C.Ohio, 34 F.Supp. 241.
Physical evidence
After witness appears before grand jury, he may be required to leave
with grand jury any physical evidence which was produced; and,
prosecutor may take custody of such evidence for grand jury and
inspect and review it.
Ariz.-Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260.
Screening witnesses
As the official charged with the orderly presentation of evidence to
grand jury, it is sound practice for prosecutor to interview and, when
appropriate, dismiss prospective witnesses in order to eliminate unnecessary or equivocal material SO that grand jurors' time can be conserved.
N.Y.-People v. Friedgood, 448 N.E.2d 1317, 58 N.Y.2d 467, 462
N.Y.S.2d 406.
Securing experts
o.
107. - - Misconduct
Suggesting lineup
U.S.-In re Pantojas, c.A.Puerto Rico, 639 F.2d 822.
29. U.S.-U.S. v. Cederquist, G.A.Ariz., 641 F.2d 1347.
In re BaIistrieri, D.C.Wis., 503 F.Supp. 1112.
Ariz.-State v. Hocker, 556 P.2d 784, 113 Ariz. 450.
Colo.-People v. Meyers, 617 P.2d 808.
Ind.-Williams v. State, 123 N.E. 209, 188 Ind. 283.
Mass.-Commonwealth v. Seminara, 483 N.E.2d 92, 29 Mass.App.Ct.
789.
N.C.-State v. Crowder, 136 S.E. 337, 193 N.C. 130.
Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
W.Va.-State v. Pickens, 395 S.E.2d 505, 183 W.Va.
, 261.
Trial standard
When presenting a case to a grand jury, the prosecutor should not
make statements or arguments which would influence the grand jury in
a manner which would be impermissible at trial.
433
i:"
,
I..
'i'
107
38A C.J.S.
GRAND JURIES
Prejudicial remarks
U.S.-U.S. v. AI Mudarris, CACal., 695 F.2d 1182, certiorari denied
103 S.Ct. 2097, 461 U.S. 932, 77 L.Ed.2d 305.
30. Ariz.-State v. Hocker, 556 P.2d 784, 113 Ariz. 450.
Mass.-Commonwealth v. Seminara, 483 N.E.2d 92, 20 MassApp.Ct.
789.
constitutional error where the structural protections of the grand jury have been so compromised
as to render the proceedings fundamentally unfair,
allowing a presumption of prejudice.42 A constitutional violation may also be found if there is a
history of misconduct that is so systematic and
pervasive that it affects the fundamental fairness of
the proceedings or if the independence of the grand
jury is substantially infringed.43
h. Particular Matters
The prosecutor should not express to the grand opinions on
questions of fact, or knowingly present perjured testimony to the
grand jury.
Research Note
Duty to present exculpatory evidence is treated infra 169.
Credibility
Testimonial communication
434
~A
C.J.S.
ll'al protec)mpromised
t;ally unfair,
A constituthere is a
ematic and
. fairness of
fthe grand
ld opinions on
;timony to the
infra 169.
ial conduct
!ld impropThe prosepinions on
[7 Various
ered sufficient
issuades grand
es it of oppor. affimled 607
38A C.J.S.
The prosecutor must not mislead the grand jurors,50 or knowingly present perjured testimony,51
or erroneous testimony. 52
Perjury trap.
W.Va.-State ex reI. Knotts v. Watt, 413 S.E.2d 173, 186 W.Va. 518.
fi}'
had voted
Prosecutor was required to inform court and grand jury that testimony was erroneous to insure that defendant would not be tried on
indictment based on erroneous testimony.
Ariz.-Escobar v. Superior Court of State of Ariz. In and For Maricopa County, App., 746 P.2d 39, 155 Ariz. 298.
53. U.S.-In re Poutre, CAMass., 602 F.2d 1004.
Pa.-Commonwealth v. Williams, 565 A2d 160, 388 Pa.Super. 153.
i.
573.
)t was part of
lted constitnt-
Learning of petjury
there is more
i50.
tiorari denied
17, 240 Mass.
People v. Colban, 571 N.Y.S.2d 873, 151 Misc.2d 32, affimled 586
N.Y.S.2d 802, 186 AD.2d 8.
58. Colo.-People v. Board, App., 656 P.2d 712.
59. U.S.-U.S. v. Duff, D.c.m., 529 F.Supp. 148.
(1) Prosecutor who discovers that tainted evidence has been presented to grand jury must personally weigh untainted evidence supporting government's case and decide if evidence is such that jury of 12 is
likely to unanimously find that evidence establishes gnilt beyond a
reasonable doubt and if prosecutor is doubtful of that result, untainted
evidence may be resubmitted to grand jury to determine if 13 grand
jurors are prepared to find that crime was committed and that there is
probable cause to believe that one or more of the original defendants
committed that crime; prosecutor also has option of deciding that
untainted evidence is insufficient to warrant pursning prosecution
further and moving to dismiss indictment.
U.S.-U.S. v. Adamo, CAOhio, 742 F.2d 927, certiorari denied
Freeman v. U.S., 105 S.Ct. 971, 469 U.S. 1193, 83 L.Ed.2d 975.
[ass. 264.
U.S. v. Duff, D.c.m., 529 F.Supp. 148 U.S. v. Samango, D.C.Hawaii, 450 F.Supp. 1097, affimled 607 F.2d 877.
435
107
GRAND JURIES
38A C.J.S.
ence,63 but does not necessarily result in undue regular prosecuting officer in framing the indictinfluence.64
. ment; 78 and it is immaterial that he acts under an
order, or with the permission, of the court in
Action after vote.
charge of the grand jury.79
It has been held that, after the grand jury votes,
Under a statute forbidding the presence of any
the prosecutor cannot take additional action in an
other
persons than the regular prosecuting officer
attempt to change the result,65 and cannot ask that
and
the
witnesses undergoing examination, the
the vote be withdrawn,66 submit additional criminal
charges,67 supplement the original presentation presence before the grand jury of an attorney
without court approval,68 or request that the grand employed by private parties and his participation in
jury hear additional evidence 69 or instructions. 70 the examination of witnesses is improper,so nor can
a special counsel who took no official oath appear
as
representative of the prosecuting attorney and
108. Private Prosecutor
examine
witnesses and advise the grand jury.81 On
A private prosecutor ordinarily cannot appear before the
the other hand it has been held, under such a
grand jury except as a witness.
statute, that an indictment is not invalidated by the
Research Note
fact that an attorney, who was neither prosecuting
Access to grand jury by private complainant in general is
attorney nor deputy prosecuting attorney, was
discussed supra 98.
present in the grand jury room examining witLibrary References
nesses by consent of the prosecuting attorney but
Grand Jury ~34.
was not present when the grand jury were deliberA private prosecutor cannot participate in a ating or voting on the charge, and said nothing to
grand jury proceeding,71 and may not appear be- influence the finding of the grand jury.82
fore the grand jury.72 The presence and particUnder some constitutional or statutory proviipation of a private prosecutor in any other capacity sions, an independent counsel is appointed to advise
than that of a witness is improper,73 and it is the grand jury, as discussed infra 109.
immaterial that his participation was at the request
of the grand jury,74 as the grand jurors may not
supplant the prosecuting attorney by accepting the 109. Independent Counsel for Grand Jury
Under some constitutional or statutory provisions, an indeadvice and counsel of members of the bar of their
own selection,75 particularly when this is done by pendent counsel shall be appointed to advise the members of the
grand jury regarding matters brought before it.
some of the grand jurors on their own initiative.76
The grand jury cannot permit the presence of
Library References
privately employed cl;mnsel in its room and cannot
Grand Jury ~34.
act under his direction,77 and it is improper to
Under some constitutional or statutory provipermit such an attorney to go before the grand
jury with the witnesses and there act for the sions, an independent counsel shall be appointed to
63. U.S.-U.S. v. Civella, C.A.Mo., 666 F.2d 1122.
64. U.S.-U.S. v. Civella, C.A.Mo., 666 F.2d 1122.
U.S. v. Gakoumis, E.D.Pa., 624 F.Supp. 655, affirmed 802 F.2d
449, two cases.
65. N.Y.-People v. Del Toro, 544 N.Y.S.2d 461, 144 Misc.2d 386.
66. N.Y.-People v. Hamilton, 537 N.Y.S.2d 780,142 Misc.2d 554.
67. N.Y.-People v. LeGrand, 536 N.Y.S.2d 660, 142 Misc.2d 151.
68. N.Y.-People v. Chirico, 544 N.Y.S.2d 451, 144 Misc.2d 380.
69. N.Y.-People v. Del Toro, 544 N.Y.S.2d 461, 144 Misc.2d 386.
70. N.Y.-People v. Del Toro, 544 N.Y.S.2d 461, 144 Misc.2d 386.
71. W.Va.-Kerns v. Wolverton, 381 S.E.2d 258,181 W.Va. 143.
72. Va.-Cantrell v. Com., 329 S.E.2d 22, 229 Va. 387, appeal after
remand 373 S.E.2d 328, 7 Va.App. 269, habeas corpus denied
Cantrell v. Kelley, 896 F.2d 545, certiorari denied 110 S.Ct. 2600,496
U.S. 911, 110 L.Ed.2d 280.
73. Miss.-Collier v. State, 61 So. 689, 104 Miss. 602.
436
~A
C.J.S.
38A C.J.S.
advise the members of the grand jury regarding
matters brought before it.83 The purpose of such a
provision is to ensure the independence of the
grand jury, by separating the role of the prosecutor
presenting evidence in support of an indictment
from the role of the attorney advising the grand
jury as to the law.84 The independent counsel does
not serve as an advocate on behalf of an accused. 85
The independent counsel need not be physically
present throughout the grand jury proceeding.86
However, the counsel must instruct grand jurors on
the procedures to summon counsel for consultation. 87 The counsel should be in close proximity to
the grand jury, preferably in a separate room next
to the grand jury, but at the very least in the same
building.88 Of course, the independent counsel is
not prohibited from being in the grand jury room if
desired. 89
ItOry provilppointed to
Or.-State ex reI. Smith v. Murchison, 595 P.2d 1237, 286 Or. 469State ex reI. Johnson v. Roth, 557 P.2d 230, 276 Or. 883.
.40.
L.R. 886.
:66.
Minutes
Or.-State ex reI. Drew v. Steinbock, 595 P.2d 1234, 286 Or. 461.
88 AL.R. 886.
Library References
Ga.-Frazier v. State, 362 S.E.2d 351, 257 Ga. 690, certiorari denied
108 S.Ct. 1755, 486 U.S. 1017, 100 L.Ed.2d 217, rehearing denied
108 S.Ct. 2920, 487 U.S. 1243, 101 L.Ed.2d 951.
v. State,
~-Durr
Research Note
1dJury
110.
437
Ii
110
GRAND JURIES
38A C.J.S.
Felony cases
Local rule
Allor none
In event that defendant testified before grand jury and asked that, if
his testimony be recorded or reported, all testimony before grand jury
in case would be required to be recorded or reported, and in event that
district attorney then sought an order for recording or reporting of
grand jury testimony in case, trial court would be required to either
order recording or reporting of testimony of all witnesses appearing
before grand jury or that none of such testimony be recorded or
reported.
Or.-State ex reI. Drew v. Steinbook, 595 P.2d 1234, 286 Or. 46l.
99. N.Y.-In re Attorney General of U.S., 291 N.Y.S. 5, 160 Misc.
533.
1. Va.-Vihko v. Commonwealth, 393 S.E.2d 413, 10 VaApp. 498.
2. Instructions
N.Y.-People v. Kennedy, 487 N.Y.S.2d 662, 127 Misc.2d 712.
6. Regarding case
No off-the-record conversation is to be allowed between grand jurors
and prosecutor regarding case or any legal aspect of it.
Ariz.-Wilkey v. Superior Court, App., 566 P.2d 327, 115 Ariz. 526.
7. Ariz.-Wilkey v. Superior Court, App., 566 P.2d 327, 115 Ariz.
526.
8. ill.-People v. Miller, 426 N.E.2d 609, 55 ill.Dec. 463, 100 ill.
App.3d 122.
Coconspirator
If a grand jury determines that a known individual was a coconspirator but decides not to indict him or her, the grand jury minutes should
reflect that jury has determined that the individual was a coconspirator
but decided, for reasons which need not be stated, not to indict.
N.J.-State v. Porro, 377 A2d 909, 152 NJ.Super. 179, appeal dismissed 391 A2d 517, 77 N.J. 504.
3. Ariz.-Wilkey v. Superior Court, App., 566 P.2d 327, 115 Ariz.
526.
In the case of a federal grand jury, all proceedings, except when the
grand jury is deliberating or voting, shall be recorded.
438
l C.J.S.
38A C.J.S.
in the
iscuss the
osecutor.7
questions
lsses.8 It
ding of a
ing of the
proceedings. 12
IS
right to a
is not remscript of
ent to his
does not
invalidate
GRAND JURIES
Manner of recording.
Some authorities hold that proceedings must be
stenographically recorded, and that it is insufficient
that they are tape-recorded.13 Other authorities
hold that a tape recording is adequate.14 In the
case of a federal grand jury, proceedings shall be
recorded stenographically or by an electronic recording device.15 Some authorities hold that a
reporter or stenographer directed by a court or
prosecutor to take down evidence must also transcribe such evidence.16 Where a statute requires
the grand jury to take the minutes of the evidence,
it is not necessary that the evidence should be
written down in full,17 nor need such minutes be
signed by the witnesses who testify.18
Disposition of record.
Under some statutes or rules, the transcript and
minutes must be filed with the COurt. 19 Minutes of
the evidence when properly returned and filed become a part of the records of the court and are to
dings while a
rule requiring
111
remain in its custody,20 although the custody thereof is sometimes confided to the prosecuting officer.21 Grand jury minutes are not the property of
attorneys or agents of the government, but are
records of the court. 22 The court may in a proper
situation review the minutes of its grand jury in
camera.23
Effect of record.
,g.
IN GENERAL
111.
n grand jurors
General Considerations
Evidentiary rules applicable at trial are generally inapplicable in grand jury proceedings, although there is some authority
to the contrary.
Ariz. 526.
Library References
Grand Jury e->36, 36.1.
463, 100 m.
be kept and
If its right to
or any other
rand jury pro80 m.App.3d
mtry be made
for grand jury
19.
47.
F.Supp. 802.
Photograph
439
111
GRAND JURIES
38A C.J.S.
grand juries.30
However, some authorities hold that grand jury
investigations should be made in accordance with
the well established rules of evidence.31 It has also
been said that evidentiary rules are more liberally
construed in grand jury proceedings.32
112.
Witnesses in General
The right to call witnesses before the grand jury is recognized both at common law and under statute.
113.
Obligation in General
The principle that the public has the right to every man's
evidence applies to grand jury proceedings.
39. U.S.-In re 1979 Grand Jury Subpoena, D.C.La., 478 F.Supp. 59.
40. Tenn.-State v. Parish, 27 Tenn. 80, 8 Humphr. 80.
41. F1a.-State ex reI. Hemmings v. Coleman, 187 So. 793, 137 Fla.
80.
440
38A C.J.S.
38A C.J.S.
vitness is not
lility that the
a legitimate
ept a witness'
fy,43 but may
lether he will
[<'ifth Amend-
fore a grand
mrsement for
who performs
efore a grand
r in order to
~nsation than
10.
So. 793, 137 Fla.
not defeated by
;e to comply with
: to call a witness
the same kind of
J.583.
J.583.
59 F.Supp. 1335. .
Not only individuals, but also entities are required to give testimony and attend upon the grand
jury as a public duty.57
There is no requirement that the witness know
the purpose of the investigation.58
114.
Library References
Grand Jury es=>36.4, 36.4(1).
441
,.
",
;.:~:
.",
i,
Compulsion in General
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.
114
38A C.J.S.
GRAND JURIES
The grand jury cannot itself compel the production of evidence or the testimony of Witnesses, and
must rely upon the court when such compulsion is
required. 77 Grand jury subpoenas are not selfexecuting orders. 78 It is the court which must
compel a witness to testify if, after appearing, such
witness refuses to do SO.79
115.
Process in General
Fourth Amendment
Grand jury subpoenas duces tecum are not per se violations of
Fourth Amendment.
U.S.-U.S. v. Susskind, C.A.6(Mich.), 965 F.2d 80, opinion adopted in
part on rebearing en banc 4 F.3d 1400, certiorari denied Rumler v.
U.S., 114 S.Ct. 1098, 127 L.Ed.2d 411, certiorari denied 114 S.Ct.
1114, 127 L.Ed.2d 424, certiorari denied 114 S.Ct. 1296, 127 L.Ed.2d
649, on rehearing 7 F.3d 236.
67. Ohio-In re Brink, 536 N.E.2d 1202, 42 Ohio Misc.2d 5.
68. U.S.-In re Doe, C.A.2(N.Y.), 860 F.2d 40.
79. U.S.-Brown v. U.S., N.Y., 79 S.Ct. 539, 359 U.S. 41, 3 L.Ed.2d
609, rehearing denied 79 S.Ct. 873, 359 U.S. 976, 3 L.Ed.2d 843.
442
i\. C.J.S.
38A C.J.S.
le produclesses, and
lpulsion is
not seIfhich must
tring, such
!s before the
ous statutes.
witnesses
permitted
some auorder to
ury is the
~ttendance
med in a
i75, certiorari
,56 LEd.2d
12.
: resubmitting
Ijury.
GRAND JURIES
116
- - Issuance
a. In general
b. Federal grand jury
a. In General
82. N.Y.-People v. Doe, 286 N.Y.S. 343, 247 AD. 324, affirmed 3
N.E.2d 875, 272 N.Y. 473.
530 N.Y.S.2d
~ounty,
App.,
i 646.
19,27 ALR.
,558.
11,3 LEd.2d
L.Ed.2d 843.
Ii denied 98
,fisc. 734.
443
116
GRAND JURIES
38A C.J.S.
court approval or control,15 and are almost universally instrumentalities of the United States Attorney's Office or of some other department of the
executive branch. 16
The United States Attorney may fill in blank
subpoenas so as to require identification material,
without actual prior grand jury authorizationY
The grand jury need not reach a decision to request a lineup by a formal vote. IS
117.
A subpoena for the attendance of a witness before a federal grand jury shall be issued by the
clerk under the seal of the courtY The clerk shall
issue a subpoena, signed and sealed but otherwise
in blank to a party requesting it, who shall fill in
the blanks before it is served. 12 A subpoena may
also command the person to whom it is directed to
produce the books, papers, documents or other
objects designated therein. 13
Thus, the court's actual involvement in the issuance of a grand jury subpoena is limited to issuing
a blank subpoena bearing the seal of the COurt. 14
Although grand jury subpoenas are issued in the
name of the court, they are issued pro forma and in
blank to anyone requesting them without prior
5. Ariz.-Gershon v. Broomfield, 642 P.2d 852, 131 Ariz. 507.
Cal.-Ex parte Peart, 43 P.2d 334, 5 C.A.2d 469.
6. Tenn.-Stanley v. State, 104 S.W.2d 819, 171 Tenn. 406.
7. N.J.-State v. Stelzner, 608 A.2d 386, 257 N.J.Super. 219, certification denied 614 A.2d 619,130 N.J. 396.
8. Ill.-O'Hair v. People, 32 Ill.App. 277.
Ky.-Miller v. Price, 86 S.W.2d 152,260 Ky. 488.
9. N.J.-State v. Hilltop Private Nursing Home, Inc., 426 A.2d 1041,
177 N.J.Super. 377.
10. N.J.-State v. Hilltop Private Nursing Home, Inc., 426 A.2d 1041,
177 N.J.Super. 377.
11. Fed.Rules Cr.Proc., Rule 17(a), 18 U.S.c.A.
12. Fed.Rules Cr.Proc., Rule 17(a), 18 U.s.C.A.
Library References
Grand Jury 0=>36.4, 36.4(1).
444
:SA C.J.S.
38A C.J.S.
fill in blank
ion material,
thorization.17
~ision to reld Service
loes business in
Witnesses from
infra 121.
~ted
which does
to a grand
be required
cuments are
~, in a felony
lrved at any
ilpoena may be
is not less than
thin. the United
a subpoena
:leputy mar- .
GRAND JURIES
Library References
Grand Jury 0=>36.4, 36.4(1).
34. U.S.-Hale v. Henkel, N.Y., 26 S.Ct. 370, 201 U.S. 43, 50 L.Ed.
652.
I
on remand 1988
119
10 re Subpoena to TestifY Before Grand Jury Numbered S286-47, N.D.Ind., 630 F.Supp. 235.
'.2d 13.
27. U.S.-Matter of Marc Rich & Co., AG., C.AN.Y., 707 F.2d 663,
certiorari denied Marc Rich & Co., AG. v. U.S., 103 S.Ct. 3555, 463
U.S. 1215, 77 L.Ed.2d 1400.
38.
:ertiorari denied
822.
me 26, 1986, 513
30. U.S.-Matter of Marc Rich & Co., AG., C.AN.Y., 707 F.2d 663,
certiorari denied Marc Ricb & Co., AG. v. U.S., 103 S.Ct. 3555, 463
U.S. 1215, 77 L.Ed.2d 1400.
me 26, 1986,513
'.2d 13.
445
119
GRAND JURIES
38A C.J.S.
Library References
Grand Jury <S:;>36.4(2).
A grand jury subpoena duces tecum must identify the documents demanded sufficiently clearly to
Some authorities hold that a dissolved corporation has a continuing obligation to respond to subpoenas relating to predissolution conduct.55
121.
Library References
It is implicit within a subpoena directing a witness to testify before a grand jury that the grand
jury may continue the appearance and questioning
of the witness until his testimony has been completed or the need for his presence has been terminated.51
53. Md.-In re Special Investigation No. 195, 454 A2d 843, 295 Md.
276.
54. U.S.-In re Immunity Order Dated April 21, 1982, D.C.N.Y., 543
F.Supp. 1075.
55. U.S.-In re Grand Jury Subpoenas Issued to Thirteen Corporations, C.A2(N.Y.), 775 F.2d 43, certiorari denied Roe v. U.S., 106
S.Ct. 1459,475 U.S. 1081,89 L.Ed.2d 716.
56. U.S.-People of State of New York v. O'Neill, Fla., 79 S.Ct. 564,
359 U.S. 1, 3 L.Ed.2d 585, on remand 112 So.2d 837.
57. Uniform Act to Secure Attendance of Witnesses (U.L.A) 1 et
seq.
58. Uniform Act to Secure Attendance of Witnesses (U.L.A), Table
of Jurisdictions Wherein Act Has Been Adopted.
446
C.J.S.
'and jury
rere first
obtained
I jury is
corporad to sub-
f Witnesses
applies to
.tes and the
s from with-
provision
~ation to
hough he
oners on
form Act
om Withe Act has
listrict of
ate which
lIDanding
testify in
tl of such
has coma person
843,295 Md.
).C.N.Y.,543
~en Corpora, v. U.S., 106
79
s.a. 564,
I.LA) 1 et
I.LA), Table
38A C.J.8.
GRAND JURIES
being within the adopting state is a material witness in such grand jury investigation, and that his
presence will be required for a specified number of
days, upon presentation of such certificate to any
judge of a court of record in the county in which
such person is, such judge shall fix a time and place
for a hearing, and shall make an order directing the
witness to appear at a time and place certain for
the hearing. 59
If at a hearing the judge determines that the
witness is material and necessary, that it will not
cause undue hardship to the witness to be compelled to attend and testify in a grand jury investigation in the other state, and that the laws of the
state in which the grand jury investigation has
commenced or is about to commence [and of any
other state through which the witness may be
required to pass by ordinary course of travel], will
give to him protection from arrest and the service
of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the
court where a grand jury investigation has commenced or is about to commence at a time and
place specified in the sUlllIDons.60
Research Note
Right to Financial Privacy Act is treated infra 124.
Library References
Grand Jury <P36.4, 36.4(1).
The grand jury has the power to retain documents presented to it pursuant to a subpoena duces
tecum,65 and may review such documents itself 66 or
have others review them. 67 Af'tkr a witness appears before the grand jury, he may be required to
leave with the grand jury any physical evidence
which was produced.68 The prosecutor may take
custody of such evidence for the grand jury,69 and
inspect and review it.70 The prosecutor may possess and retain material received pursuant to a
Balancing
63.
Independent finding
Court, in determining to issue summons pursuant to request under
the Uniform Act to Secure Witnesses, erred in failing to make its own
independent findings on whether attendance of the witness before the
out-of-state proceeding was material and necessary and would not
cause that witness undue hardship.
Vt.-In re Stoddard, 470 A2d 185, 144 Vt. 6.
61. Uniform Act to Secure Attendance of Witnesses (U.LA) 2.
Witness
69.
447
I :
123
123
GRAND JURIES
38A C.J.S.
subpoena,71 and review them,72 and may make copies and use them for any proper purpose.73 It is
the burden of the subpoenaed party to raise a
challenge as to the extent of possession to which
the issuer of the subpoena is entitled.74
124.
Library References
Grand Jury e:>36.4, 36.4(1).
Under the Right to Financial Privacy Act,S6 financial records about a customer obtained from a
financial institution pursuant to a federal grand
jury subpoena shall be returned and actually presented to the grand jury, unless the volume of such
records makes such return and actual presentation
impractical, in which case the grand jury shall be
provided with a description of the contents of the
records. s7 Representatives of the institution need
not personally deliver the records to the grand
jury,88 although there is some authority to the
contrary.S9 No examination of the records may be
made except for the purposes of, and by direction
Where the term of a grand jury expires, documents may be transferred to a second grand jury,83
71. N.Y.-Brunswick Hosp. Center, Inc. v. Hynes, 420 N.E.2d 51, 52
N.Y.2d 333, 438 N.Y.S.2d 253.
Kuriansky v. Seewald, 1 Dept., 544 N.Y.S.2d 336, 148 AD.2d 238,
appeal denied 549 N.E.2d 478, 74 N.Y.2d 616, 550 N.Y.S.2d 276.
408 N.Y.S.2d 1027, certiorari denied 99 S.Ct. 243, 439 U.S. 888, 58
L.Ed.2d 234.
78. U.S.-U.S. ex reI. Woodard v. Tynan, C.AlO(Colo.), 776 F.2d
250.
72. Assistance
Materials subpoenaed by grand jury may be analyzed and summarized by government counsel with assistance of investigative personnel
of government law enforcement agency for presentation to grand jury.
U.S.-U.S. v. Pbelps, D.C.Okl., 526 F.Supp. 686.
73. N.Y.-Brunswick Hosp. Center, Inc. v. Hynes, 420 N.E.2d 51, 52
N.Y.2d 333, 438 N.Y.S.2d 253.
74. N.Y.-Brunswick Hosp. Center, Inc. v. Hynes, 420 N.E.2d 51, 52
N.Y.2d 333, 438 N.Y.S.2d 253.
75. U.S.-In re Grand Jury Matter, E.D.Pa., 640 F.Supp. 63--In re
Doe, D.C.R.I., 537 F.Supp. 1038.
76. U.S.-In re Grand Jury Matter, E.D.Pa., 640 F.Supp. 63.
77. N.Y.-Hynes v. Lerner, 376 N.E.2d 1294, 44 N.y'2d 329, 405
N.Y.S.2d 649, reargument denied 380 N.E.2d 350, 44 N.Y.2d 950,
448
..1
i.
II
I"i
::
jA C.J.S.
38A C.J.8.
cond grand
a grand
y subpoenas
msferred to
d jury may
ormality of
~re
GRAND JURIES
125
:t
~ancial records
lltion pursuant
e returned and
C.
125.
In General
~y
~39
u.s. 888, 58
Research Note
Inability of grand jury itself to compel testimony or production
of evidence is treated supra 114. Whether court should compel
compliance is discussed infra 128-151, 153.
Library References
Grand Jury :>36.4, 36.4(1).
WESTLAW ELECTRONIC RESEARCH
See WESTLAW Electronic Research Gnide following Preface.
Personal jurisdiction.
In order to obtain a directive for compliance with
a subpoena, the government must show that there
is a reasonable probability that ultimately it will
succeed in establishing facts necessary for the exercise of personal jurisdiction over the witness. 2
Recognizance.
A court, having the power belonging to a court of
oyer and terminer or of general jail delivery, has
r.Y.s.2d 390, 92
r.Y.S.2d 390, 92
96. U.S.-In re Grand Jury Proceedings, CA9(Cal.), 873 F.2d 238In re Doe, CA2(N.Y.), 860 F.2d 40.
jury witness who refuses to comply with grand jury order to appear in
449
125
GRAND JURIES
38A C.J.S.
power to require a witness who has been subpoenaed to testify before a grand jury to enter into a
recognizance to appear before such grand jury,
either at a present or a future term of court.3
126.
Action by the grand jury itself, as distinct from the prosecutor may be a prerequisite to compulsion of a witness by the
court.
Library References
Grand Jury ~36.4, 36.4(1).
Arrest
In General
A person subpoenaed or ordered to appear before a grand jury to testify may seek the protection
of the court by moving to modify or quash the
subpoena.13 The court has a supervisory duty of
4.
12.
5.
6.
Or.-State ex reI. Frohnroayer v. Sarns, 648 P.2d 364, 293 Or. 385.
7.
8.
18 U.S.CA 3144.
9.
18 U.S.CA 3144.
Balancing
In considering whether to order compliance with grand jury subpoena duces tecum, court must balance competing interests of the individual's right to keep his personal affairs confidential with the grand jury's
right to investigate criminal activity.
.
Colo.-Losavio v. Robb, 579 P.2d 1152, 195 Colo. 533.
450
C.J.S.
38A C.J.8.
,duction
seeing that its grand jury and its processes are not
abused, or used for purposes of oppression and
injustice.14 The power to quash a federal grand
jury subpoena exists in the district court for the
district where the grand jury sits, by reason of its
inherent authority to prevent misuse of its own
process. 15 Discretionary authority to quash a subpoena is not absolute. 16
; from an
nd if it is
nce of the
'est of the
appears
stimony
that it
,resence
:er may
~ntation
. United
l articulnneceslallenge
~ on the
ented a
!ause of
~lease
if
ltely be
ntion is
!.n Re~d for a
n of the
The requirements for the enforcement of a federal trial subpoena are inapplicable to a federal grand
jury subpoena. 21 The court may quash or modify a
federal grand jury subpoena duces tecum if compliance would be unreasonable or oppressive,22 and
has considerable discretion in this respect.22 The
reasonableness of the requirements of a subpoena
duces tecum is a concrete matter and depends on
the specific situation that is the. subject of inquiry.24
The grand jury is without power to invade a
legitimate privacy interest protected by the Fourth
Amendment.25 A subpoena duces tecum will be
disallowed if it is far too sweeping in its terms to be
14. U.S.-In re National Window Glass Workers, D.COhio, 287 F.
219, 1 Ohio Law Abs. 419.
15. U.S.-U.S. v. (Under Seal), CAVa., 714 F.2d 347, certiorari
dismissed Doe v. U.S., 104 S.Ct. 1019, 464 U.S. 978, 78 L.Ed.2d 354.
16. Colo.-Losavio v. Robb, 579 P.2d 1152, 195 Colo. 533.
BiSS
lear beotection
ash the
duty of
subpoe:he individ~andjury's
Proceedings in General
N.Y.-Matter of Grand Jury Subpoenas for Locals 17, 135, 257 and
608 of the United Broth. of Carpenters and Joiners of America,
AFL-CIO, 528 N.E.2d 1195, 72 N.Y.2d 307, 532 N.Y.S.2d 722,
certiorari denied LocaI 17 of United Broth. of Carpenters and
Joiners of America, AFI,-CIO v. New York, 109 S.Ct. 492, 488 U.S.
966, 102 L.Ed.2d 529.
Definiteness of description see supra 119.
Relevancy see infra 132.
Case-by-case determination
N.J.-In re Grand Jury Subpoena Duces Tecum, 363 A2d 936, 143
NJ.Super. 526.
21. U.S.-U.S. v. R. Enterprises, Inc., Va., 111 S.Ct. 722, 498 U.S.
292, 112 L.Ed.2d 795, on remand In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d 229.
22. Fed.Rules Cr.Proc., Rule 17(c), 18 U.S.CA
Lineup
23.
Md.-In re Special Investigation No. 281, 473 A2d 1, 299 Md. 181.
Mass.--Commonwealth v. Doe, 563 N.E.2d 1349, 408 Mass. 764.
19 Preface.
U.S.-In re Motions to Quash Subpoenas Duces Tecum Returnable Before Second Grand Jury, D.CCal., 30 F.supp. 527.
24.
IlL-People v. I.W.L, Inc., 1 Dist., 531 N.E.2d 1001, 126 lli.Dec. 374,
176 IIIApp.3d 951.
451