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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

Can grand jurors sign an affidavit saying they would not have indicted if the prosecutor had not presented misleading information?

I am trying to find information concerning whether a juror of a grand jury has the legal right to phone other jurors who served on the same indictment to discuss a particular aspect of that indictment.

In particular, is it legal to have a meeting with all the jurors who served at the same time in hopes of having an affidavit signed saying we, the Grand Jurors, felt we were given misleading information and but for that information we would not otherwise have indicted a person. The affidavit (signed by at least four jurors) would then be presented to the judge along with a motion to dismiss the charges.

I have been told this is legal and that at the time of such meeting the attorney for the defendant (the person indicted) could legally attend. At this meeting a family member of the defendant would present facts (sworn testimony) to contradict what was told to the jurors at the time of the indictment.

I neglected to mention that the grand jury was a state grand jury. I don't know if that makes a difference.

Response: You pose some difficult questions, especially since I know it's a state grand jury but don't know what state. And please understand, I am not attempting to give you legal advice; I do not do that–I simply provide general information about how grand juries work.

Since I don't know what state we're dealing with, all I can do is explain how it would work in the federal system, since many states follow the federal approach. I suspect many states would handle the situation the same way it would be handled in the federal system.

In the federal system, Rule 606(b) of the Federal Rules of Evidence says that whenever there is an inquiry into whether an indictment is valid, a grand juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the . . . indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Under this rule, therefore, grand jurors cannot testify or provide affidavits about the nature and kind of evidence that was presented and the effect this evidence had upon their decision to indict. And the effect of this rule is only enhanced by Rule 6(e), which imposes secrecy in federal grand jury proceedings. Under Rule 6(e), the nature and kind of evidence presented plus the effect this evidence had upon the decision-making of a grand jury would be "matters occurring" before the grand jury and would, therefore, be encompassed by grand jury secrecy. If a grand juror were to disclose these matters–orally and/or in a written affidavit–this would be a violation of grand jury secrecy, which can be punished as criminal contempt in the federal system. It might also be prosecuted as obstruction of justice, depending upon the facts involved and the prosecutor's inclinations. 

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