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Federal Grand Jury Investigations
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.
Since most federal prosecutions involve felony charges, grand juries play an important role in enforcing federal criminal law. If you are subpoenaed to testify in front of a federal grand jury, you should contact J. Clark Baird PLLC immediately as your own constitutional rights and your very freedom could be at risk. If you are notified by the U.S. Attorney s office that you are under investigation by a grand jury, call our offices as soon as possible. Do not delay in dealing with this type of issue.
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 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:
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.
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.
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.
- U.S. Attorney’s Manual on Federal Grand Jury Investigations
- Federal Grand Jury Handbook