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Federal Grand Juries

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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)

Handbook for Federal Grand Jury Forepersons

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.

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


         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
fedj2.jpg (28891 bytes)        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. 


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        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

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        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:

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        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.

fedj6.jpg (39903 bytes)        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.

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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
fedj8.jpg (24655 bytes)        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.


fedj9.jpg (35683 bytes)        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.

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