![fedj1.jpg (26699 bytes)](pics/fedj1.jpg)
Note: You can find more
information about how grand juries--both state and federal--conduct themselves in the FAQ
section of this website. Also, if you'd like to read about how Federal Grand Juries
operate, try these two handbooks:
Handbook for
Federal Grand Jurors
http://www.nynd.uscourts.gov/juror.htm
(requires Adobe Acrobat)
http://www.pawd.uscourts.gov/Public/Jury/fgj.htm
Handbook for Federal Grand Jury Forepersons
http://www.ilnd.uscourts.gov/JURY/Grndjury.htm
Federal prosecutors – this site provides access to
every U.S. Attorney’s Office in the country. U.S. Attorneys are federal
prosecutors; one is appointed for every federal judicial district in every
state. The site gives you the information you need to contact a U.S.
Attorney’s Office.
http://www.usdoj.gov/usao/offices/index.html
Federal courts – links to federal district courts
and to the federal circuit courts of appeals (the district courts are the
trial courts, the circuit courts are the intermediate appellate courts and
the Supreme Court is the ultimate appellate court),
http://www.uscourts.gov/allinks.html#all
Introduction
Because
of the Fifth Amendment, the federal legal system has to use grand juries to
bring charges, at least for certain offenses. The Fifth Amendment to the
U.S. Constitution requires that charges for all capital and "infamous"
crimes be brought by an indictment returned by a grand jury. The amendment
has been interpreted to require that an indictment be used to charge federal
felonies, unless a defendant waives his or her right to be indicted by a
grand jury. The Supreme Court has held that this part of the Fifth
Amendment is not binding on the states, so they can use grand juries or not,
as they wish.
(If a defendant waives his or her
right to be indicted by a grand jury, the prosecutor can charge them by using an
"information." An information is simply a pleading that accuses the
defendants of committing crimes, just as an indictment does. The difference between
an indictment and an information is that a grand jury must approve an indictment, while a
prosecutor can issue an information without the grand jury's approval or, for that matter,
without ever showing the information to the grand jury.)
Since most federal prosecutions involve
felony charges, grand juries play an important role in enforcing federal criminal law. The
sections below describe the essential aspects of federal grand juries.
Size
of the grand jury
Federal grand juries are composed of between 16
and 23 individuals. Sixteen is the minimum and 23 is the maximum number that can
constitute a federal grand jury. The size of the federal grand jury is set by Rule 6(a)(1)
of the Federal Rules of Criminal Procedure.
Quorum
of jurors needed to conduct business
The quorum is the minimum number of jurors that
need to be present for a grand jury to be able to conduct business, such as considering
whether charges should be brought against someone or investigating criminal activity. No
statute or court rule defines the quorum for federal grand juries, but federal courts have
inferred that at least 16 jurors must be present for a grand jury to convene and conduct
business. The number 16 comes from Rule 6(a)(1) of the Federal Rules of Criminal
Procedure, which says that a federal grand jury must consists of between 16 and 23 jurors.
If less than 16 jurors appear, the grand jury cannot convene.
Alternate
and replacement grand jurors
Under Rule 6(a)(2) of the Federal Rules of
Criminal Procedure, a federal court can, but does not have to, choose alternate grand
jurors when it impanels a federal grand jury. If a judge has chosen one or more
alternates, they replace jurors who are excused (usually for illness or other conditions
constituting a hardship). If a court has not chosen alternates, it can replace excused
grand jurors by simply choosing other individuals to serve.
Grand
jury officers
Under Rule 6 of the Federal Rules of Criminal
Procedure, a federal court must appoint both a foreperson and a deputy foreperson when it
impanels a grand jury. The foreperson or, in her absence, the deputy foreperson
administers oaths to witnesses who testify before the grand jury and presides over the
grand jury's sessions, ensuring that a quorum is present and handling other administrative
matters. In this photograph of a grand jury in session, you can see the foreperson
at the far right.
![fedj3.jpg (28541 bytes)](pics/fedj3.jpg)
The deputy foreperson is the woman at
the far left (in the green blouse) in this picture.
The rule does not provide for
the appointment of a grand jury secretary, but the custom in some federal judicial
districts is to appoint a grand jury secretary. The secretary records the attendance of
specific jurors and witnesses, and may record the grand jury's vote on indictments
presented to it.
Grand
jury room
![fedj4.jpg (13574 bytes)](pics/fedj4.jpg)
Since grand jury proceedings
are secret, grand juries meet in private, which means they usually meet in areas that are
not accessible to the public. Federal grand juries meet in special "grand jury
rooms" that are located in generally out of the way areas of a federal
courthouse. You can see what a grand jury room looks like if you go to the
"multimedia overview" section of this website.
Gathering
evidence
Grand juries use subpoenas to gather the
evidence they need to use in deciding whether crimes have been committed. They can
subpoena documents and physical evidence (including videotapes, guns, etc.) and they can
subpoena witnesses to testify. In the picture below, you see a police officer
testifying before a state grand jury:
![fedj5.jpg (24878 bytes)](pics/fedj5.jpg)
In the federal system, grand
juries are more likely to hear testimony from federal agents (FBI, DEA, BATF, IRS) than
from police officers, but they do sometimes hear from police officers, as well. They
are most likely to hear from police officers when they are investigating, for example,
drug trafficking or corruption in local government.
In the federal
system, witnesses cannot be accompanied into the grand jury room by their attorney, if
they have one. Below, you can see a grand jury witness (the gentleman) consulting,
in the hall outside the grand jury room, with his attorney. The witness will then
have to go back inside the grand jury room, and if he wants to consult with his attorney
again, will have to ask permission to go outside and do so.
Since witnesses have not been
indicted, they apparently have no constitutional right to counsel, since the Sixth
Amendment right to counsel only applied after someone has been indicted. If a
witness cannot afford an attorney, he or she can ask the court that supervises the grand
jury to provide them with appointed counsel; in many districts, courts do this, as a
matter of general fairness. They may appoint a private attorney or, if the district
has a Federal Public Defender's Office, they will appoint a public defender.
The witness, however, has to
know to ask the court for the attorney, since prosecutors are not likely to be
particularly sympathetic to such requests.
Grand
jury's term
Federal grand juries are of two types--regular
and special. Regular grand juries sit for a basic term of 18 months, but that term can be
extended up to another 6 months, which means their total possible term is 24 months.
Special grand juries sit for 18 months, but their term can be extended for up to another
18 months; a court can extend a special grand jury's term for 6 months, and can enter up
to three such extensions, totaling 18 months.
How
often a grand jury meets
Federal grand juries meet regularly, but the
frequency of their meetings varies from one federal judicial district to another. Several
grand juries may be meeting at the same time in large urban areas, while grand juries
convened in less populous districts may only meet once a week or once a month. Generally,
federal grand juries tend to meet when prosecutors need them to consider proposed
indictments or to investigate possible criminal activity.
Recording
grand jury proceedings
The recording of federal grand jury proceedings
was not explicitly authorized until Rule 6 of the Federal Rules of Criminal Procedure was
adopted in 1946. It allowed proceedings to be recorded, but did not require that a record
be made. Rule 6 was revised in 1979, and now requires that federal grand jury proceedings
be recorded, either stenographically or electronically. In this
photograph, you can see a female court reporter (sitting beside a male
prosecutor) who is recording a grand jury's proceedings.
Prosecutorial Misconduct
Recording was made mandatory as
a check on prosecutorial abuse of the grand jury process; the drafters of the revised rule
believed prosecutors would be less likely to engage in misconduct before a grand jury if
they knew a record was being kept of their activities.
Click here for more information on
prosecutorial misconduct.
Grand
jury functions
Historically, grand juries have performed two
functions. They decided whether someone should be charged--"indicted"--for
committing a crime. They also investigated criminal activity and the conduct of public
affairs. Before the American Revolution, colonial grand juries essentially ran local
government, supervising everything from road-building and bridge maintenance to the
operation of local jails. Over the years, they lost much of their public affairs function,
as the operation of local government was taken over by administrative agencies, an
institution that did not exist in colonial times.
In the modern federal system, grand juries
do not investigate civil matters. In fact, it is an abuse of the grand jury process
to use a federal grand jury to gather evidence for use in a civil proceeding.
Federal grand juries concentrate on investigating and bringing charges for federal crimes.
There are two kinds of federal
grand juries: Regular federal grand juries and special federal grand juries.
Regular federal grand juries tend to spend their time hearing evidence and considering
indictments submitted to them by a prosecutor. They spend the bulk of their time deciding,
therefore, whether probable cause exists to return a set of proposed charges against the
defendants names therein. Special federal grand juries were created in 1970 specifically
to investigate organized crime. They, too, consider whether indictments should be returned
against certain persons, but special grand juries also devote a great deal of their time
to investigating possible criminal activity. |