Federal Grand Jury The Indictment Process By:
Bill E. Branscum
Copyright 2007
This article is intended solely to provide and introduction
to the Federal Grand Jury process to investigators who may find
themselves involved in federal criminal cases. I intend to cover
a a series of issues that I have found to be the subject of misunderstanding
and confusion. In other words, there are points I make here that
have been the subject of dispute with attorneys I have worked with,
so do not be surprised if the attorney you are working with is under
a similar misimpression - check for yourself.
A Federal Grand Jury is the entity that serves to
satisfy the Constitutional requirement that those who are to be
charged with a crime by the federal government, first be indicted
by a Federal Grand Jury. In the federal judicial system, this is
an absolute right, but a defendant may waive that right, allowing
a Prosecutor to file an "Information" instead.
The Federal Grand Jury has two separate, and distinct
functions - to investigate, and to make a decision as to indictment.
The investigative powers of the Federal Grand Jury are often described
as "awesome," and that description is apt. They can compel
the testimony of virtually anyone, and force the production of virtually
anything. Furthermore, they meet and deliberate in secret, with
secrecy provisions as set forth ion Rule 6(e) of the Federal Rules
of Criminal Procedure that says:
A grand juror, an interpreter, a stenographer,
an operator of a recording device, a typist who transcribes
recorded testimony, an attorney for the government, or any person
to whom disclosure is made under paragraph (3)(A)(ii) of this
subdivision shall not disclose matters occurring before the
grand jury, except as otherwise provided for in these rules.
No obligation of secrecy may be imposed on any person except
in accordance with this rule. A knowing violation of Rule 6
may be punished as a contempt of court.
Read this carefully - although witnesses often wind
up with the misimpression that they are prohibited from discussing
their testimony before the grand jury, and many attorneys believe
this to be the case as well, this absolutely does not apply to a
witness. A witness is perfectly free to tell you what was asked,
and what was said.
Also, with respect to witnesses, it should be noted
that a witness compelled to appear before a Federal Grand Jury should
request the appointment of an attorney if they feel that they need
one. While witnesses are generally not entitled to Court appointed
counsel, many Courts will appoint them for witnesses compelled to
appear before Federal Grand Juries, and there is a provision for
this in the US Attorney's Manual - and for good reason. A witness
may need to invoke their 5th Amendment rights related to self incrimination,
mistakenly believe that they need to invoke these rights, or wish
to waive them.
In any event, an attorney representing a witness will
not be allowed to enter the grand jury room. To consult with their
attorney, a witness must generally request to go outside into the
hallway.
Further, while it is true that the target of a Federal
Grand Jury has no right to testify, and may not even be aware that
he is the subject of a grand jury investigation, they will almost
always be allowed to tell their side of the story if they choose.
I suggest that you discuss this with the attorney handling the case
outside the hearing of the Client as they will almost invariably
argue that the target has no such right, and it is awkward to correct
any attorney's misconceptions once a Client becomes aware of them.
The fact is, the target does not have a "right" to tell
the grand jury their side, but the US Attorney's Manual dictates
that the target who makes such a request should be given the opportunity
in the interest of fairness [See USAM 9-11.152, Requests by Subjects
and Targets to Testify Before the Grand Jury]
With respect to the members of a Federal Grand Jury,
there are three numbers to keep in mind; twenty-three (23), sixteen
(16) and twelve (12). A Federal Grand Jury usually has twenty-three
(23) people appointed to serve, but in the event of an absence,
they can meet with as few as sixteen (16). In the event that it
turns out that a member, or members, of the Federal Grand Jury are
later shown to be disqualified, an Indictment will not stand
unless it can be shown that at least twelve competent jurists agreed.
Federal Grand Juries are identified as being either
"regular" or "special." Special Grand Juries
are normally convened to deal with particularly complex situations
such as cases involving organized crime. Whereas a regular grand
jury sits for a basic term of eighteen (18) months, with a possible
extension of an additional six (6) months, a special grand jury
term can be extended for up to another eighteen (18) months in six
(6) month increments.
Given a system of secrecy, and one-sidedness, the
potential for abuse is obvious. What would you think would happen
if a Prosecutor obtained an Indictment by deliberately failing to
provide exculpatory evidence to a Federal Grand Jury. Let's not
be vague or equivocal here - suppose DNA evidence absolutely proved
that the target of the investigation was not guilty, but the Prosecutor
deliberately failed to make the Federal Grand Jury aware of it,
successfully making some sort of circumstantial case instead. What
effect does this have on the Indictment?
The fact is, the government does not have the power
to dismiss an Indictment, no matter how improperly it was
procured. [See United States v. Williams, 112 S.Ct. 1735 (1992)]
According to the USAM, appellate courts are allowed to refer this
sort of situation to the Office of Professional Responsibility for
review. [See USAM 9-11.233 Presentation of Exculpatory Evidence]
It is interesting to note that the US Attorney's Manual
provides that, in the event that a Federal Grand Jury declines to
return a "True Bill" [indictment], the matter, "Should
not be presented to another grand jury or resubmitted to the same
grand jury without first securing the approval of the responsible
United States Attorney." [See USAM 9-11.120 Power
of a Grand Jury Limited by Its Function]
Oracle International
Bill E. Branscum, Investigator
OracleIntL@aol.com
(239) 304-1639
