HANDBOOKHANDBOOKHANDBOOKHANDBOOKHANDBOOKFORFORFORFORFOR

FEDERALFEDERALFEDERALFEDERALFEDERALGRANDGRANDGRANDGRANDGRANDJURORSJURORSJURORSJURORSJURORS

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

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

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

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

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

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

SELECTION OF GRAND JURORS ........................ 5

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

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

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

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

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

(4) Calling the Person Under Investigationas a Witness ........................................ 9

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

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

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

PROTECTION OF GRAND JURORS ................... 13PRACTICAL SUGGESTIONS FOR

GRAND JURORS .............................................. 13

GLOSSARY OF TERMS ..................................... 15

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PURPOSE OF THIS HANDBOOKThis Handbook will acquaint persons who

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

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

ORIGIN AND HISTORY OF THEGRAND JURY

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

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judges.

Over the years, the hallmarks of our moderngrand jury developed in England. For example,grand jury proceedings became secret, and thegrand jury became independent of the Crown. Asa result, a grand jury is able to vote an indictmentor refuse to do so, as it deems proper, withoutregard to the recommendations of judge,prosecutor, or any other person. Thisindependence from the will of the government wasachieved only after a long hard fight. It can best beillustrated by the celebrated English case involvingthe Earl of Shaftasbury, who, in 1681, fell underthe suspicion of the Crown. Displeased with him,the Crown presented to the grand jury a proposedbill of indictment for high treason andrecommended that it be voted and returned. Afterhearing the witnesses, the grand jury voted againstthe bill of indictment and returned it to the King,holding that it was not true.

When the English colonists came to America,they brought with them many of the institutions ofthe English legal system, including the grand jury.Thus, the English tradition of the grand jury waswell established in the American colonies longbefore the American Revolution. Indeed, thecolonists used it as a platform from which to asserttheir independence from the pressures of colonialgovernors. In 1735, for example, the ColonialGovernor of New York demanded that a grand juryindict for libel John Zenger, editor of a newspapercalled “The Weekly Journal,” because he had heldup to scorn certain acts of the Royal Governor. Thegrand jury flatly refused.

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

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

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

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

The grand jury normally hears only thatevidence presented by an attorney for thegovernment which tends to show the commissionof a crime. The grand jury must determine fromthis evidence, and usually without hearingevidence for the defense, whether a person shouldbe tried for a serious federal crime, referred to inthe Bill of Rights as an “infamous crime.” Aninfamous crime is one which may be punished byimprisonment for more than one year. As ageneral rule, no one can be prosecuted for aserious crime unless the grand jury decides thatthe evidence it has heard so requires. In this way,the grand jury operates both as a “sword,”authorizing the government’s prosecution ofsuspected criminals, and also as a “shield,”protecting citizens from unwarranted orinappropriate prosecutions. A person may,however, waive grand jury proceedings and agreeto be prosecuted by a written charge of crimecalled an information.

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The grand jury is not completely free tocompel a trial of anyone it chooses. The UnitedStates Attorney must sign the indictment beforeone may be prosecuted. Thus, the governmentand the grand jury act as checks upon each other.This assures that neither may arbitrarily wield theawesome power to indict a person of a crime.

(1) The Grand Jury’s Tasks

As stated above, the federal grand jury’sfunction is to determine whether aperson shall be tried for a serious federalcrime alleged to have been committedwithin the district where it sits. Mattersmay be brought to its attention in threeways: (1) by the United States Attorneyor an Assistant United States Attorney;(2) by the court that impaneled it; and(3) from the personal knowledge of amember of the grand jury or frommatters properly brought to a member’spersonal attention. In all these cases,the grand jury must hear evidencebefore taking action.

After it has received evidence against aperson, the grand jury must decidewhether the evidence presented justifiesan indictment, or “true bill,” which isthe formal criminal charge returned bythe grand jury. Upon the indictment’sbeing filed in court, the person accusedmust either plead guilty or nolocontendere or stand trial.

If the evidence does not persuade thegrand jury that there is probable causeto believe the person committed acrime, the grand jury will vote a “nobill,” or “not a true bill.” When thisoccurs, the person is not required toplead to a criminal charge, and no trial isrequired.

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(2) Investigation

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

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

SELECTION OF GRAND JURORSFederal law requires that a grand jury be

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

Pursuant to law, the names of prospectivegrand jurors are drawn at random from lists of

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

ORGANIZATION, OATH, ANDOFFICERS OF THE FEDERAL GRANDJURY

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

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

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

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

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After the grand jury has been charged, it istaken to the grand jury room, where it will heartestimony and consider documentary evidence inthe cases brought to its attention by the UnitedStates Attorney or an Assistant United StatesAttorney.

PROCEDURE(1) Quorum

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

(2) Evidence Before the Grand Jury

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

Each federal court district has a UnitedStates Attorney whose duty it is torepresent the United States in federalmatters within the district and toprosecute those accused of federalcrimes. In the usual case, the UnitedStates Attorney or one of the AssistantUnited States Attorneys will present theevidence of alleged violations of the lawto the grand jury. These attorneys alsoadvise grand jurors as to what witnesses

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should be called and what documentaryevidence should be produced forexamination by the grand jury. Thegrand jury may ask that additionalwitnesses be called if it believes thisnecessary. The United States Attorneywill also prepare the formal writtenindictments that the grand jury wishesto present. But neither the United StatesAttorney nor any Assistant United StatesAttorney may remain in the room whilethe grand jury deliberates and votes onan indictment.

(3) Questioning the Witness

Witnesses are called to testify one afteranother. Upon appearing to givetestimony, each witness will be swornby the grand jury foreperson or, in theforeperson’s absence, the deputyforeperson. The witness will then bequestioned. Ordinarily, the attorney forthe government questions the witnessfirst, followed next by the foreperson ofthe grand jury. Then, the othermembers of the grand jury mayquestion the witness.

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

Because of the need for secrecy,described in more detail in the followingsection, the law forbids anyone otherthan authorized persons from beingpresent in the grand jury room whileevidence is being presented. Thismeans that only the grand jury, the

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United States Attorney or the AssistantUnited States Attorney, the witnessunder examination, the court reporter,and interpreters when needed may bepresent. If an indictment shouldultimately be voted, the presence ofunauthorized persons in the grand juryroom could invalidate it.

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

Additionally, a witness who is appearingbefore the grand jury may invoke theFifth Amendment privilege against self-incrimination and refuse to answer aquestion. In such a situation, the grandjurors may bring the matter before thecourt in order to obtain a ruling as towhether or not the answer may becompelled. One manner in which ananswer may be compelled is by grantingthe witness immunity from prosecutionin exchange for the witness’ testimony.

(4) Calling the Person Under Investigationas a Witness

Normally, neither the person underinvestigation (sometimes referred to asthe “accused,” although this does notimply he or she is guilty of any crime)nor any witness on the accused’s behalf

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will testify before the grand jury.

Upon request, preferably in writing, anaccused may be given the opportunityby the grand jury to appear before it. Anaccused who does so appear cannot beforced to testify because of theconstitutional privilege against self-incrimination. If the grand juryattempts to force the accused to testify,an indictment returned against thatperson may be nullified.

Because the appearance of an accusedbefore the grand jury may raisecomplicated legal problems, a grand jurythat desires to request or to permit anaccused to appear before it shouldconsult with the United States Attorneyand, if necessary, the court beforeproceeding.

Even if the accused is willing to testifyvoluntarily, it is recommended that he orshe first be warned of the right not totestify. Also, he or she may be requiredto sign a formal waiver of this right. Thegrand jury should be completelysatisfied that the accused fullyunderstands what he or she is doing.

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

It is the responsibility of the grand juryto weigh the evidence presented to it inorder to determine whether thisevidence, usually without anyexplanation being offered by theaccused, persuades it that there isprobable cause to believe that a crimehas been committed and that theaccused was the person who committedit. Remember that the grand jury is notresponsible for determining whether the

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accused is guilty beyond a reasonabledoubt, but only whether there issufficient evidence of probable cause tojustify bringing the accused to trial.Only the evidence presented to thegrand jury in the grand jury room maybe considered in determining whetherto vote an indictment.

(6) Deliberations

When the grand jury has received all theevidence on a given charge, all personsother than the members of the grandjury or an interpreter to assist a jurorwho is hearing or speech impaired,must leave the room so that the grandjury may begin its deliberations. Thepresence of any other person in thegrand jury room while the grand jurydeliberates or votes may nullify anindictment returned on the accusation.

After all persons other than the grandjury members and any interpreter for ahearing or speech impaired juror haveleft the room, the foreperson will ask thegrand jury members to discuss and voteupon the question of whether theevidence persuades the grand jury that acrime has probably been committed bythe person accused and that anindictment should be returned. Everygrand juror has the right to express hisor her view of the matter underconsideration, and grand jurors shouldlisten to the comments of all their fellowgrand jurors before making up theirmind. Only after each grand juror hasbeen given the opportunity to be heardwill the vote be taken. It should beremembered that at least 16 jurors mustbe present and 12 members must votein favor of the indictment before it maybe returned.

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

SECRECYThe law imposes upon each grand juror a

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

The tradition of secrecy continues as a vitalpart of the grand jury system for many reasons. Itprotects the grand jurors from being subjected topressure by persons who may be subjects ofinvestigations by the grand jury or associates ofsuch persons. It prevents the escape of thoseagainst whom an indictment is being considered.It encourages witnesses before the grand jury togive full and truthful information as to thecommission of a crime. It also prevents tamperingwith or intimidation of such witnesses before theytestify at trial. Finally, it prevents the disclosure ofinvestigations that result in no action by the grandjury and avoids any stigma the public might attachto one who is the subject of a mere investigationby the grand jury.

Essentially, the grand jury may disclosematters occurring before it only to the attorneys forthe government for use in the performance of theirduties, but even attorneys for the government maynot be informed of what took place during the

grand jury’s deliberations and voting. The onlyother time matters occurring before the grand jurymay be disclosed to anyone is when disclosure isordered by the court in the interests of justice.Disclosure of such matters may never be made togrand juror’s friends or family, including a grandjuror’s spouse.

PROTECTION OF GRAND JURORSThe secrecy imposed upon grand jurors is a

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

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

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

PRACTICAL SUGGESTIONS FORGRAND JURORS

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

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

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

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

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

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

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

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

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

No grand juror should discuss the cases underinvestigation with anyone, except fellow grandjurors and the United States Attorney or theAssistant United States Attorney, and then only inthe grand jury room. Of course, the grand jurorsmay always seek the advice of the judge.

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

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GLOSSARY OF TERMS

Accused:

The person accused of the commission of afederal crime. Use of this term does not imply theperson under investigation is guilty of any crime.After a person is indicted by the grand jury, thatperson is referred to as the “defendant.”

Charge to the Grand Jury:

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

Deliberations:

The discussion by the grand jury members asto whether or not to return an indictment on agiven charge against an accused. Duringdeliberations no one except the grand jurymembers or an interpreter for a hearing or speechimpaired juror may be present.

District:

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

Evidence:

Testimony of witnesses, documents, andexhibits as presented to the grand jury by anattorney for the government or otherwise properlybrought before it. In some instances, the personunder investigation may also testify.

Federal:

The national government as distinguishedfrom the state governments.

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Grand Jurors’ Immunity:

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

Indictment:

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

Information:

The written formal charge of crime by theUnited States Attorney, filed against an accusedwho, if charged with a serious crime, must haveknowingly waived the requirements that theevidence first be presented to a grand jury.

“No Bill”:

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

Petit Jury:

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

Probable Cause:

The finding necessary in order to return anindictment against a person accused of a federalcrime. A finding of probable cause is proper onlywhen the evidence presented to the grand jury,without any explanation being offered by theaccused, persuades 12 or more grand jurors that afederal crime has probably been committed by theperson accused.

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Quorum for Grand Jury to Conduct Business:

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

United States Attorney:

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

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Administrative Officeof the

United States CourtsWashington, D.C. 20544

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