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
(239) 304-1639


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