Federal Grand Juries: The Law in a Nutshell
Federal Grand Juries:
The Law in a Nutshell
American Law Division
The federal grand jury exists to investigate crimes against the United States and to
secure the constitutional right of grand jury indictment. Its responsibilities require broad
powers. As an arm of the United States District Court which summons it, upon whose
process it relies, and which will receive any indictments it returns, the grand jury's
subject matter and geographical jurisdiction is that of the court to which it is attached.
Ordinarily, the law is entitled to everyone's evidence. Witnesses subpoenaed to
appear before the grand jury, therefore, will find little to excuse their appearance. Once
before the panel, however, they are entitled to the benefit of various constitutional,
common law and statutory privileges, including the right to withhold self-incriminating
testimony and the security of confidentiality of their attorney-client communications.
They are not, however, entitled to have an attorney with them in the grand jury room
when they testify. Unless the independence of the grand jury is overborne, irregularities
in the grand jury process ordinarily will not result in dismissal of an indictment,
particularly where dismissal is sought after conviction.
The grand jury conducts its business in secret, although witnesses are not bound
and the rules permit disclosure of matters occurring before the grand jury under limited
circumstances with court approval.
Citations for the quotations and statements in this report may be found in CRS
Report 95-1135, The Federal Grand Jury, from which this report has been abridged.
The grand jury is an institution of antiquity that dates back to the twelfth century.
By the American colonial period, the grand jury had become both an accuser and a
protector. It was the protector the Founders saw when they enshrined the grand jury
within the Bill of Rights and the reason it has been afforded extraordinary inquisitorial
powers and exceptional deference.
The right to grand jury indictment is only constitutionally required in federal cases.
In a majority of the states prosecution may begin either with an indictment or with an
information or complaint filed by the prosecutor.
Although abolition of the right to indictment in the states and abolition of the grand
jury itself in England came primarily as a matter of judicial economy, most of the
contemporary calls to change the federal grand jury system are a reaction to perceived
instances of prosecutorial exuberance.
The federal grand jury enjoys sweeping authority. It may begin its examination even
in the absence of probable cause or any other level of suspicion that a crime has been
committed within its reach. In the exercise of its jurisdiction, the grand jury may
"investigate merely on suspicion that the law is being violated, or even just because it
wants assurance that it is not," and its inquiries "may be triggered by tips, rumors,
evidence proffered by the prosecutor, or the personal knowledge of the grand jurors."
Unrestrained "by questions of propriety or forecasts of the probable result of the
investigation or by doubts whether any particular individual will be found properly subject
to an accusation," its "investigation is not fully carried out until every available clue has
been run down and all witnesses examined in every proper way to find if a crime has been
Federal grand juries are selected by the court in each federal judicial district. Federal
grand jurors must be citizens of the United States, eighteen years of age or older and
residents of the judicial district for at least a year, be able to read, write and understand
English with sufficient proficiency to complete the juror qualification form, be able to
speak English, and be mentally and physically able to serve; those charged with or
convicted of a felony are ineligible.
Discrimination in selection on the basis of race, color, religion, sex, national origin,
or economic status is prohibited, and grand jurors must be "selected at random from a fair
cross section of the community in the district or division wherein the court convenes."
Grand jury panels consist of sixteen to twenty-three members, sixteen of whom must
be present for a quorum, and twelve of whom must concur to indict. They sit until
discharged by the court, but generally not for longer than 18 months or in the case of some
grand juries in the more populous districts for 36 months.
Proceedings Before the Grand Jury
The grand jury does not conduct its business in open court nor does a federal judge
preside over its proceedings. The grand jury meets behind closed doors with only the
jurors, attorney for the government, witnesses, someone to record testimony, and possibly
an interpreter present.
In many cases, the government will have already conducted an investigation and the
attorney for the government will present evidence. In other cases, the investigation will
be incomplete and the grand jury, either on its own initiative or at the suggestion of the
attorney for the government, will investigate.
The attorney for the government will ordinarily arrange for the appearance of
witnesses before the grand jury, will suggest the order in which they should be called, and
will take part in questioning them. The prosecutor is the most common source of legal
advice and will draft most of the indictments returned by the grand jury.
Grand jury witnesses usually appear before the grand jury under subpoena. Although
subpoenas may be issued and served at the request of the panel itself, the attorney for the
government ordinarily "fills in the blanks" on a grand jury subpoena and arranges the case
to be presented to the grand jury.
Unjustified failure to comply with a grand jury subpoena may result in a witness
being held in civil contempt, convicted for criminal contempt, or both. Justifications for
failure to comply are limited. Absent self-incrimination or some other privilege, the law
expects citizens to cooperate with efforts to investigate crime. Even when armed with an
applicable privilege a witness' compliance with a grand jury subpoena is only likely to be
excused with respect to matters protected by the privilege. A witness, subpoenaed to
testify rather than merely produce documents, is compelled to appear before the grand jury
and claim the privilege with respect to any questions to which it applies.
Grand jury subpoenas are subject to rule that, "the grand jury. . .may not itself violate
a valid privilege, whether established by the Constitution, statutes, or the common law."
Matters that might be considered privileged under other circumstances are not always
recognized as privileged before the grand jury. Some privileges like doctor-patient, have
been refused recognition, some like journalist-source have been recognized for limited
purposes that may or may not provide the basis for a motion to quash a grand jury
subpoena, and some like attorney-client have been recognized as evidentiary privileges
for grand jury purposes.
The shadow of the Fourth Amendment is visible in Rule 17(c) of the Federal Rules
of Criminal Procedure, which supplies the grounds most often successfully employed to
quash a grand jury subpoena, ". . . The court on motion made promptly may quash or
modify the subpoena if compliance would be unreasonable or oppressive." A subpoena
is "unreasonable or oppressive" if (1) it commands the production of things clearly
irrelevant to the investigation being pursued; (2) it fails to specify the things to be
produced with reasonable particularity; or (3) it is unreasonable in terms of the relative
extent of the effort required to comply.
It is not unreasonable under the Fourth Amendment nor contrary to the Fifth
Amendment privilege against self-incrimination to subpoena a witness to appear before
the grand jury in order to furnish a voice exemplar, a handwriting exemplar, or to sign a
consent form authorizing the disclosure of bank records. Consequently, the courts will
not quash an otherwise valid subpoena issued for any of those purposes.
Although the Fifth Amendment privilege against self-incrimination precludes
requiring a witness to testify at his or her criminal trial, it does not "confer an absolute
right to decline to respond in a grand jury inquiry." Once before the grand jury, a witness
may decline to present self-incriminating testimony.
Grand jury proceedings are conducted behind closed doors and the rules cloak
"matters occurring before the grand jury" in secrecy. Violations of grand jury secrecy are
punishable as a contempt of court. The rules, however, are not all encompassing. Grand
jury witnesses are free to disclose their testimony.
While "matters occurring before the grand jury" are secret, the rules do not ordinarily
bar disclosure of information because the information might be presented to the grand jury
at some time in the future. The rule protects the workings of the grand jury not the grist
for its mill. The fact of disclosure to the grand jury, rather than the information disclosed,
is the object of protection.
The rules specifically permit government attorneys who acquire information while
assisting a grand jury to disclose it to government attorneys and employees assisting in
the criminal process which is the focus of the grand jury's inquiry. They allow disclosure
of foreign intelligence information to government officers and employees. They also
permit the court to authorize disclosure (1) "preliminary to or in connection with a judicial
proceeding;" (2) upon a defendant's request "showing grounds may exist for a motion to
dismiss the indictment because of matters occurring before the grand jury;" (3) to a
second grand jury; and (4) to state enforcement authorities. Limited disclosure may also
be possible under separate statutory or common law authority.
Final Grand Jury Action
There are four possible outcomes of convening a grand jury -- (1) indictment, (2) a
vote not to indict, to find "no bill" or "no true bill", or to endorse the indictment
"ignoramus", (3) discharge or expiration without any action, (4) submission of a report
to the court.
In an indictment the grand jury accuses a designated person with a specific crime.
It contains a "plain, concise and definite written statement of the essential facts
constituting the offense charged" and bears the signature of the attorney for the
government, and of the grand jury foreperson. An indictment (1) "must contain a
statement of the essential facts constituting the offense charged, (2) it must contain
allegations of each element of the offense charged, so that the defendant is given fair
notice of the charge that he must defend, and (3) its allegations must be sufficiently
distinctive so that an acquittal or conviction on such charges can be pleaded to bar a
second prosecution for the same offense."
Every defendant to be tried for a federal capital or "otherwise infamous crime" has
a constitutional right to demand that the process begin only after the concurrence of
twelve of his or her fellow citizens reflected in an indictment. It is a right, however,
which the defendant may waive in noncapital cases. Misdemeanors may, but need not,
be tried by indictment.
The grand jury may indict only upon the vote of twelve of its members, and upon its
conclusion that there is probable cause to believe that the accused committed the crime
Defendants have urged dismissal of their indictments based upon a wide array of
alleged grand jury irregularities. They are rarely successful. The irregularities which
warrant dismissal are few and the obstacles which must be overcome to establish them
The courts are most hospitable to dismissal motions predicated upon constitutional
violations. Thus, indictments returned by grand jury panels whose selection has been
tainted by racial or sexual discrimination will be dismissed. The courts will likewise
dismiss indictments which charge a defendant on basis of his or her immunized testimony
taken pursuant to an order entered in lieu of his or her Fifth Amendment self-
incrimination privilege; which are defective for failure to state an offense contrary to the
Fifth Amendment right of indictment before trial for a felony; which are tainted by
violations of the Speech or Debate privilege; or which are based solely on evidence
secured in violation of the Fourth Amendment.
They will also dismiss indictments in the name of due process where the prosecution
sought indictment selectively for constitutionally impermissible reasons; or for reasons
of vindictive retaliation; where the prosecution has secured the indictment through
outrageous conduct which shocks the conscience of the court; where the prosecution has
unjustifiably delayed seeking an indictment to the detriment of the defendant; where the
government knowingly secures the indictment through the presentation of false or
perjured testimony; or where a witness is called before the grand jury for the sole purpose
of building perjury prosecution against the witness.
In the absence of one of these rarely found causes for constitutional challenge, a
facially valid indictment returned by a legally constituted grand jury is almost uniformly
immune from dismissal. "[T]he supervisory power [of the courts] can be used to dismiss
an indictment because of misconduct before the grand jury, at least where the misconduct
amounts to a violation of one of those few, clear rules which were carefully drafted and
approved by this Court and by Congress to ensure the integrity of the grand jury
The supervisory authority to dismiss an indictment, however, is only appropriately
exercised where "`it is established that the violations substantially influenced the grand
jury's decision to indict' or if there is `grave doubt' that the decision was free from such
substantial influence." If the error is harmless the indictment will not be dismissed; "a
district court may not dismiss an indictment for errors in grand jury proceedings unless
such errors prejudiced the defendants." Timing is also important. After a trial jury has
found sufficient evidence to convict a defendant, a claim of prejudice based on grand jury
irregularities may lose much of its force.
In addition to dismissal of the indictment at the request of the accused, the
government may move for dismissal of the indictment. Although the rule requires "leave
of court," prosecutorial discretion is vested in the executive and the court cannot
effectively compel prosecution. The authority of the courts to deny dismissal is therefore
limited to instances where dismissal would be "clearly contrary to manifest public
interest." In most instances dismissal is without prejudice to the government and the
prosecutor may seek to reindict for the same offense as long as neither the statute of
limitations nor the double jeopardy clause pose a bar.
The decision to indict rests with the grand jury. It may indict in the face of probable
cause, but it need not; it cannot be required to indict nor punished for failing to do so. On
the other hand, the prosecution is free to resubmit a matter for reconsideration by the same
grand jury or by a subsequent panel and a grand jury panel is free to reexamine a matter
notwithstanding the prior results of its own deliberations or those of another panel.
The law regarding the last alternative available to the grand jury, the authority to
send forward "reports" or "presentments," is somewhat obscure. It is clear that in the
limited case of the special grand juries in populous districts the grand jury has statutory
authority to report on organized crime. Most federal grand jury panels, however, have no
express authority to issue reports.
They nevertheless appear to have common law authority to prepare reports, at least
under some circumstances. The district court which empaneled the grand jury receives
such communications and enjoys the discretion to determine the extent to which the
reports should be sealed, expunged or disclosed. Some of the factors considered in
making that determination include: "whether the report describes general community
conditions or whether it refers to identifiable individuals; whether the individuals are
mentioned in public or private capacities; the public interest in the contents of the report
balanced against the harm to the individuals named; the availability and efficacy of
remedies; whether the conduct described is indictable;" and whether the report intrudes
upon the prerogatives of state and local governments.
The court has the power to discharge a grand jury panel at any time within its term
for any reason it sees fit. The court's authority to discharge a panel, quash its subpoenas,
seal or expunge its reports or dismiss its indictments afford a check on "runaway" grand