CORPUS JURIS

SECUNDUM®
A CONTEMPORARY STATEMENT OF
AMERICAN LAW
AS DERIVED FROM
REPORTED CASES AND LEGISLATION
By
ROBERT J. OWENS
Editor-in-Chief
and
ANTHONYV. AMODIO
Managing Editor
Assisted by
The Editorial Staff
of
WEST PUBLISHING COMPANY
Volume 38A
. Kept to Date by Cumulative Annual Pocket Parts
ST. PAUL, MINN.
WEST PUBLISHING CO.
m that the business
II'chaser can attend to.
auld not be broader
r for the protection
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relief in equitable
mting for damages
r be authorized.
I6
N.E. 199, 195 Mass. 292.
I, 121 A. 69, 13 Del.Ch.
GRAND JURIES
GRAND JURIES
Analysis
I. IN GENERAL, §§ 1-12
II. COMPOSITION AND FORMATION, §§ 13-67
A DISCRIMINATION; FAIR CROSS SECTION, §§ 13-19
B. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS, §§ 20-34
C. EXEMPTIONS, §§ 35--36
D. SELECTION AND DRAWING, §§ 37-44
E. SUMMONING JURORS, §§ 45-48
F. COMPLETION OF DEFECTIVE PANEL, §§ 49-50
G. IMPANELING AND ORGANIZATION; §§ 51-58
H. OBJECTIONS AND CHALLENGES TO GRAND JURY OR JUROR, §§ 59-65
I. DISCHARGING OR EXCUSING JURORS, §§ 66-67
TERM OF SERVICE AND SESSIONS, §§ 68-73
CHARGE, §§ 74-75
POWERS AND DUTIES, §§ 76--84
PRESENTMENT OR REPORT, §§ 85-90
CONDUCT OF PROCEEDINGS, §§ 91-110
WITNESSES AND EVIDENCE, §§ 111-175
A IN GENERAL, §§ 111-112
B. OBLIGATION AND COMPULSION TO APPEAR, TESTIFY, OR PRODUCE EVI-
DENCE IN GENERAL, §§ 113-124
C. ENFORCEMENT OF PROCESS BY COURT IN GENERAL, §§ 125-127
D. GROUNDS FOR NONCOMPLIANCE WITH, AND JUDICIAL REVIEW OF,
PROCESS, §§ 128-141
E. PRIVILEGE, §§ 142-151
F. RELATION OF INQUIRY TO ILLEGALLY OBTAINED EVIDENCE, §§ 1 5 ~ 1 5 4
G. CONTEMPT, §§ 155-163
H. EXAMINATION OF WITNESS, §§ 164-167
I. PRESENTATION OF EVIDENCE, §§ 168-170
J. ADMISSIBILITY OF EVIDENCE, §§ 171-173
K. SUFFICIENCY OF EVIDENCE, §§ 174-175
SECRECY AS TO PROCEEDINGS, §§ 176-193
A IN GENERAL, §§ 176-179
B. AUTHORIZED DISCLOSURE OF PROTECTED MATERIALS, §§ 180-189
C. REMEDY OR SANCTION FOR VIOLATION OF SECRECY REQUIREMENTS,
§§ 190-193
See also General Index
319
GRAND JURIES 38A
X. LIABILITIES, §§ 194-195
Sub-Analysis
I. IN GENERAL-p 330
§ 1. Scope of title - p 330
2. General considerations - p 330
3. Relation to other bodies and officers - p 333
4. Origin and history - p 335
5. Constitutional and statutory provisions in general- p 336
6. Authority of courts to convene grand juries - p 337
7. -- Special or emergency grand juries - p 338
8. -- Grand juries for special terms - p 340
9. De facto grand jury or juror - p 340
10. Improper purpose - p 340
11. Impartiality in general- p 341
12. Compensation of jurors - p 342
II. COMPOSITION AND FORMATION - p 342
A. DISCRIMINATION; FAIR CROSS SECTION - p 342
§ 13. In general- p 342
14. Right to particular composition - p 346
15. Showing of violation - p 346
16. Groups covered - p 349
17. Qualifications, exemptions, and excuses - p 351
18. Particular methods of selection - p 352
19. Standing of accused - p 353
B. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS - p 354
§ 20. In general- p 354
21. Age - p 355
22. Business or occupation - p 355
23. Citizenship - p 355
24. . Conviction of, or pending prosecution for, crime - p 356
25. Freeholder or householder - p 356
26. Infirmity - p 356
27. Interest, bias, or prejudice - p 357
28. Knowledge of language; literacy - p 359
29. Prior service as juror - p 359
30. Public officers or employees - p 360
31. Qualification as elector or voter - p 360
32. Religious or political beliefs and alliances - p 361
33. Residence - p 361
34. Taxpayer - p 361
See also General Index
320
al-p 336
337
~
mS-p354
-p356
C.J.S.
II. COMPOSITION AND FORMATION - Cont'd
C. EXEMPTIONS - p 362
§ 35. In general- p 362
36. Federal grand jury - p 362
D. SELECTION AND DRAWING-p 363
§ 37. In general- p 363
38. Notice and time of selection -'- p 365
39. Size of jury panel- p 366
40. By whom selected and drawn - p 366
41. Apportionment of grand jurors - p 367
GRAND JURIES
42. Protection and certification of lists or panels - p 368
43. Correction and revision of jury list - p 368
44. Record of selection and drawing - p 369
E. SUMMONING JURORS--:- p 369
§ 45. In general- p 369
46. Writ - p 370
47. Who may summon - p 371
48. Federal grand jury - p 372
F. COMPLETION OF DEFECTIVE PANEL - p 372
§ 49. In general- p 372
50. Federal grand jury - p 372
G. IMPANELING AND ORGANIZATION -p373
§ 51. In general- p 373
52. Time of appearance and organization - p 373
53. Number of jurors - p 374
54. Appointment, qualifications, and duties of foreman - p 374
55. --' Discrimination; fair cross section - p 376
56. Oath of jurors - p 378
57. Substitution of jurors - p 379
58. Increasing number of jurors - p 380
H. OBJECTIONS AND CHALLENGES TO GRAND JURY OR'JUROR - p 380
§ 59. In general- p 380
60. Panel or array - p 381
61. Individual jurors - p 382
62. Persons entitled to object - p 383
63. Waiver in general ~ p 384
64. Time - p 384
65. Jury Selection and Service Act - p 386
, 1. DISCHARGING OR EXCUSING JURORS -p 387
§ 66. In general- p 387
67. Federal grand jury - p 388
III. TERM OF SERVICE AND SESSIONS - p 389
§ 68. In general- p 389
See also General Index
321
GRAND JURIES
III. TERM OF SERVICE AND SESSIONS - Cont'd
§ 69. Continuance beyond term - p 390
70. Suspension or interruption of sessions - p 391
71. -- Discharge of grand jury - p 392
72. -- Recalling dismissed grand jury - p 393
73. -- Effect of adjournment of court ~ p 393
IV. CHARGE -p 394
§ 74. In general- p 394
75. Character of charge - p 396
V. POWERS AND DUTIES - P 398
§ 76. In general- p 398
77. Necessity or effect of preliminary examination, arrest, or
ment-p 400
78. Supervision by court -'- P 401
79. Source of information - p 403
80. Matters subject to investigation - p 404
81. -- Public interest, officers, and institutions - p 405
82. -- Effect of defense - p 406
83. Special grand juries - p 406
84. Disposition - p 407
VI. PRESENTMENT OR REPORT - P 408
§ 85. Presentment for criminal conduct-,p 408
86. Report - p 409
87. -- Subject matter - p 409
88. -- Preparation - p 411
89. -- Judicial review - p 412
90. -- Federal special grand juries - p 414
VII. CONDUCT OF PROCEEDINGS - P 415
§ 91. In general- p 415
92. Presence of grand jurors - p 416
93. Voting-p 417
94. Limitations on who may participate - p 417
95. -- Who may participate in general- p 418
96. -- Stenographers and the like - p 420
97. -- Effect of presence of unauthorized persons - p 420
98. Access to grand jury by private complainant - p 422
99. Participation of accused - p 422
100. -- Special provisions for participation - p 423
101. Counsel for accused or witness - p 425
102: Participation of prosecutor - p 428
103. -- Particular persons - p 429
104. -- -- Disqualification or conflict of interest - p 430
See also General Index
322
on, arrest, or
-p 405
;-p420
) 422
-p430
GRAND JURIES
CONDUCT OF PROCEEDINGS - Cont'd
§ 105. -- -- Prosecutor as witness - p 431
106. -- Nature ofrole-p 432
107. -- Misconduct - p 433
108. Private prosecutor - p 436
109. Independent counsel for grand jury -,- p 436
110. Minutes or record of proceedings - p 437
WITNESSES AND EVIDENCE - p 439
A. IN GENERAL - p 439
§ 111. General considerations - p 439
112. Witnesses in general- p 440
B. OBLIGATION AND COMPULSION TO APPEAR, TESTIFY, OR PRODUCE EVI-
DENCE IN GENERAL - p 440
§ 113. Obligation in general- p 440
114. Compulsion in general- p 441
115. Process in general- p 442
116. -- Issuance - p 443
117. -- Personal jurisdiction and service - p 444
118. -- Form and contents - p 445
119. -- -- Definiteness of description - p 445
120. -- Termination of obligation - p 446
121. Witnesses from without state - p 446
122. Banks - p 447
123. Disposition of physical evidence - p 447
124. Right to Financial Privacy Act - p 448
C. ENFORCEMENT OF PROCESS BY COURT IN GENERAL - p 449
§ 125. In general- p 449
126. Grand jury action as prerequisite to compulsion by court - p 450
127. Arrest - p 450
D. GROUNDS FOR NONCOMPLIANCE WITH, AND JUDICIAL REVIEW OF,
PROCESS - p 450
§ 128. In general- p 450
129. Proceedings in general- p 451
130. Presumption of validity of process - p 452
131. Objections to jurisdiction or scope of investigation - p 453 .
132. Relevancy of evidence sought - p 454
133. -- Time period - p 456
134. Existence of alternative source of information - p 456
135. Multiple requests to same witness - p 456
136. Oppressiveness - p 457
137. Improper purpose - p 457
138. First Amendment considerations - p 459
139. Miscellaneous grounds for noncompliance - p 459
See also General Index
323
GRAND JURIES
VIII. WITNESSES AND EVIDENCE - Cont'd
§ 140. Standing-p 460
141. Appeal- p 461
E. PRIVILEGE - p 462
§ 142. In general- p 462
143. Proceedings in general- p 463
144. Family relationship - p 464
145. -- Spouse - p 464
146. Journalist - p 465
147. Attorney - p 466
148. Work product - p 468
149. Physician or health-care provider - p 470
150. Tax records - p 471
151. Miscellaneous privileges - p 471
F. RELATION OF INQUIRY TO ILLEGALLY OBTAINED EVIDENCE-p
§ 152. In general- p 472
153. Wiretapping or other interception - p 472
154. -- Procedure - p 473
G. CONTEMPT - p 475
§ 155. In general- p 475
156. Evasive answers and the like - p 476
157. Civil and criminal contempt in general- p 477
158. Necessity that question be proper - p 478
159. Proceedings - p 479
160. -- Evidence - p 481
161. Civil sanctions - p 482
162. Criminal sanctions - p 484
163. Appeal-p 484
H. EXAMINATION OF WITNESS - p 485
§ 164. In general- p 485
165. Oath - p 486
166. Cross-examination or confrontation by accused - p 486
167. Warnings, advice, or disclosure to witness - p 486
I. PRESENTATION OF EVIDENCE - p 488
§ 168. Presentation of evidence by prosecutor - p 488
169. Duty to present or obtain evidence favorable to accused - p
170. Presentation of evidence by accused - p 490
J. ADMISSIBILITY OF EVIDENCE - p 491
§ 171. . In general- p 491 &11
172. Illegally obtained evidence - p 493
173. Who determines admissibility - p 495
K. SUFFICIENCY OF EVIDENCE - p 495
See also General Index
324
470
:NED EVIDENCE - p
472
-p477
478
accused - p 486
~ s s - p 486
-p488
lrable to accused - p
p490
WITNESSES AND EVIDENCE - Cont'd
§ 174. In general- p 495
175. Hearsay - p 496
IX. SECRECY AS TO PROCEEDINGS - p 496
A IN GENERAL - p 496
§ 176. General considerations - p 496
177. Purpose - p 498
GRAND JURIES
178. Persons subject to secrecy requirements; oath - p 499
179. Matters subject to secrecy requirements - p 500
B. AUTHORIZED DISCLOSURE OF PROTECTED MATERIALS - p 503
§ 180. In general- p 503
181. Automati.c disclosure - p 504
182. Disclosure related to proceeding in general- p 505
183. Standards in general- p 507
184. Particular factors - p 509
185. Privilege - p 511
186. Effect of termination of grand jury activities - p 512
187. Showing irregularity of grand jury proceeding - p 512
188. Extent of, and conditions upon, disclosure - p 513
189. Proceedings for disclosure - p 513
C. REMEDY OR SANCTION FOR VIOLATION OF SECRECY
REQUIREMENTS - p 515
§ 190. In general- p 515
191. Federal grand jury - p 516
192. -- Contempt - p 517
193. -- Proceedings - p 517
LIABILITIES - p 518
§ 194. Liabilities of jurors - p 518
195. Liabilities for interference with jury - p 519
*
See also General Index
325
PREFACE
The basic object of the C.J.S. set has been to present in concise form the result of the steady
stream of precedents which have replaced, modified, or supplemented older doctrines, while. at the
same time preserving those principles or statements of law which have withstood the test of time and
are firmly embedded in our jurisprudence. In carrying out this objective, the publisher has followed a
planned program of replacement volumes for diverse areas where there have occurred substantial
changes and developments in the law which can no longer be adequately dealt with in the pocket parts.
In addition to reflecting these developments, such revisions provide an opportunity for reorganization
of subject matter in accordance with modern editorial techniques designed to facilitate research, and
for the featuring of the latest and most significant pronouncements of the courts.
Pursuant to the commitment to maintain the integrity and usefulness of C.J.S., a new and revised
edition of volume 38, containing various titles, including Game; Conservation and Preservation of
Gaming, Garnishment, Gas, Gifts, Grand Juries, and Guaranty, is published in replacement
volumes 38 and 38A. A table of corresponding sections is set forth following the section analysis of each
to enable the reader to correlate the material of the prior volume 38 with that discussed in the
volumes.
The pronouns "he", "his", and "him", as used in this work are not intended to convey the masculine
alone. This form is used in a generic sense so as to avoid sentences which could be grammati-
awkward.
The material in the new volumes is derived from reported cases and legislation. Each section is
by a convenient summary of the law, and a library reference to the relevant key number of
West Digest System affords access to related areas.
For definitions, which have been eliminated from these volumes, please consult Black's Law
and Words and Phrases.
As with other volumes of the set, annual pocket parts will be published to supplement the volumes·
relevant new cases and statutory changes.
THE PUBLISHER
*
v
TABLE OF STATUTES AND REGULATIONS CITED
UNITED STATES CODE ANNOTATED 18 U . S . C . A ~
Sec.
Constitution
C.J.S. 3333(e)(l) ........................... .
Sec. Sec. Note
6, el.1 ............................. . 151 62
3333(e)(2) ........................... .
UNITED STATES CODE ANNOTATED
12 U.S.C.A.-Banks and Banking
12 U.S.C.A.
Sec.
3401 et seq .......................... .
3420(a)(1) ........................... .
3420(a)(2) ........................... .
3420(a)(3) ........................... .
3420(a)(4) ........................... .
3333(e)(3) ........................... .
C.J.S.
3333(d) ............................. .
Sec. Note
3333(e) ............................. .
124 86
140 80
124 87
124 91
124 . 92
3333(0 ............................. .
3504(a)(lr .......................... .
124 93
3504(b) ............................. .
6002 ............................... .
18 U.S.C.A.-Crimes and Criminal Procedure
18 U.S.C.A.
Sec.
401(3) .............................. .
1503 ............................... .
1504 ............................... .
2510-2521 .......................... .
2511(l)(e) ........................... .
2515 ............................... .
2518(9) ............................. .
2518(10)(a) .......................... .
3144 ............................... .
3321 ............................... .
3331(a) ............................. .
3331(b) ............................. .
3332(a) ............................. .
3332(b) ............................. .
3333(a) ............................. .
3333(b) .............................. .
3333(b)(1) .......................... .
3333(b)(2) .......................... .
C.J.S.
Sec. Note Federal Rules of Criminal Procedure
157 62 18 U.S.C.A.
191 75 Rule
195 19 6(a)(1) ............................. .
195 20
195 21 6(b)(1) ............................. .
153 78
172 40
172 42
153 79 6(b)(2) ............................. .
172 41
172 48
172 43
127 8 6(e) ................................ .
127 11
127 12
50 54
50 55
7 51
68 20 6(d) ................................ .
69 41
69 42
71 69
69 47
69 48
69 49
71 70
71 71
71 72 6(e) ................................ .
83 9
83 11 ,
83 12 6(e)(1) ............................. .
7 52
90 19
90 20 6(e)(2) ............................. .
90 21
90 22
90 23
327
C.J.S.
Sec. Note
90 24
90 27
90 28
90 29
90 30
90 31
90 32
90 33
90 34
90 26
69 43
69 49
71 72
90 25
90 19
154 95
172 46
154 95
171 25
171 26
C.J.S.
Sec. Note
6 30
53 78
60 83
61 15
62 33
64 56
60 84
61 16
64 57
65 63
54 96
54 97
54 98
54 99
57 54
57 55
95 2
95 7
95 16
95 83
96 27
102 60
102 61
103 72
104 85
105 98
176 84
191 62
192 79
110 4
110 15
110 97
176 96
178 32
178 33
178 34
TABLE OF STATUTES AND REGULATIONS CITED
18 U.S.C.A.
Rule
6(e)(3)(A)(i) ......................... .
6(e)(3)(A)(ii) ........................ .
6(e)(3)(B) ........................... .
6(e)(3)(C) ........................... .
6(e)(3)(C)(i) ......................... .
6(e)(3)(C)(ii) ........................ .
6(e)(3)(C)(iii) ........................ .
6(e)(3)(C)(iv) ........................ .
6(e)(3)(D) ........................... .
6(e)(3)(E) ........................... .
6(0 ................................ .
6(g) ................................ .
12(b)(1) ............................ .
12(b)(2) ............................ .
12(0 ............................... .
17(a) ............................... .
17(c) ...................... , ..... , .. .
17(d) ............................ , .. .
17(e)(1) .................... , ..... , .. .-
17(e)(2) .. , ...................... , ... .
17(g) ............................ , .. .
42(b) ................ , ..... , ........ .
20 U.S.C.A.-Education
20 U.S.C.A.
Sec.
l232g(b)(2) ......................... .
C.J.S.
Sec. Note
178 36
192 80
181 8
181 14
181 16
181 17
188 17
182 29
187 12
181 21
180 2
189 33
189 34
189 35
189 36
189 37
189 38
86 44
93 66
57 53
67 1
68 13
68 14
69 39
71 66
64 58
64 58
64 61
116 11
116 12
118 39
116 13
118 40
128 22
129 44
136 4
117 22
117 23
117 24
117 29
155 25
159 3
C.J.S.
Sec. Note
140 84
28 U.S.C.A.
Sec.
1826(a)(2) ........................... .
1826(b) ...... , ...................... .
1861 ............................... .
1862 .............................. ..
1863(b )(2) .......................... .
1863(b)(5)(A) ........................ .
1863(b)(5)(B) ........................ .
1863(b)(6) .......................... .
1865(b) .................. , ...... , ... .
1865(b )(1) .......................... .
1865(b)(2) .......................... .
1865(b)(3) .......................... .
1865(b)(4) .......................... .
1865(b )(5) .......................... .
1866(b) ............ , ................ .
1866(c) .................. , ..... , .... .
1866(c)(2) ........................... .
1867 ............................... .
1867(a) ............ , ................ .
1867(b) ............................. .
1867(d) ............................. .
1867(e) ...... , ..... , ................ .
1867(0 ............................. .
1869(i) ............................. .
Federal Rules of Evidence
28 U.S.C.A.
Rule
501 ................................ .
1101(c) ............................. .
1101(d)(2) .......................... .
C.J.S.
Sec. Note
161 52
161 59
162 76
161 56
163 90
13 16
13 17
18 18
13 18
18 21
36 92
36 91
30 45
20 48
21 50
23 63
33 68
28 33
28 34
26 81
24 69
48 44
48 . 45
48 46
48 47
67 98
67 99
27 96
13 23
65 62
65 64
65 65
65 66
65 67
65 68
65 69
65 70
65 71
30 45
C.J.S.
Sec. Note
142 13
142 15
142 14
111 30
28 U.S.C.A.-Judiciary and Judicial Procedure UNIFORM LAWS ANNOTATED
28 U.S.C.A. C.J.S.
Sec. Sec. Note
1783 ................................ 117 28
1826(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 61
159 97
161 36
U.L.A.
Sec.
1 et seq ............................. .
2 .................................. .
328
C.J.S.
Sec. Note
121 57
121 59
121 60
121 61
GRAND JURIES
C.J.S.
" Note
1 52
1 59
2 76
TABLE OF CORRESPONDING SECTIONS
1 56
3 90
3 16
3 17
The following table lists the former sections of the C.J.S. title GRAND JURIES corresponding to
the new sections of this revision. .
8 18
3 18 Former Section New Section Former Section New Section
8 21
6 92
6 91
:0 45
:0 48
:1 50
:3 63
:3 68
:s 33
:s 34
~ 6 81
~ 69
l8 44
l8 '45
l8 46
l8 47,
i7 98
i7 99
~ 7 96
L3 23
55 62
1 ........................ 2-5, 9, 78
2 ........................ 6, 7
3 ........................ 7
4 ........................ 8
5 ........................ 72
6 ........................ 11,20-34
7 ........................ 63, 64, 98
8 ........................ 35 '
9 ........................ 37-39, 43
10 ....................... 40, 42
11 ....................... 41
12 ....................... 14-16, 18, 19
13 ....................... 13, 17, 44
14 ....................... 45, 46
15 ....................... 45,47
16 ....................... 51
17 ....................... 52
18 ....................... 53
25 .......... , ............. 51
26 ....................... 51
27 ....................... 60
28 ....................... 59, 62, 64, 65
29 ....................... 60, 63, 65
30 ....................... 27,'61, 65
31 ....................... 66
32 ....................... 68, 69
33 ....................... 70,71,73
34 ....................... 76-82,84,85,87-90
35 ....................... 86
36 ....................... 83
37 ....................... 2, 98
38 ....................... 74, 91-93
39 ....................... 92, 99, 100, 170
40 ....................... 74, 94-97, 102-109
41 ....................... 98,101,112-167
55 64
55 65
55 66
55 67
55 68
19 ....................... 54, 55
20 .... : .......... ~ ....... 56
21 ....................... 74, 75
22 ....................... 49
42 ....................... 111,171-176
43 ...... ' ................. 177-193
44 ....................... 110
45 ....................... 194
55 69 23 ....................... 57 46 ....................... 195
65 70 24 ....................... 58 47 ....................... 12
55 71
30 45
C.J.S.
~ C . Note
42 13
42 15
42 14
11 30
C.J.S.
!c. Note
,21 57
,21 59
121 60
l21 61
329
§ 1 GRAND JURIES 38A C.J.S.
I. IN GENERAL
§ 1. Scope of Title
This title includes a discussion of bodies of per-
sons sworn to inquire into and make presentment
of public offenses; the nature and constitution of
such juries; the. qualifications, selection, summon-
ing, and compensation of grand jurors; challenges
and objections to grand jurors; the organization,
powers, duties, and general conduct of business of
grand juries; secrecy as to their proceedings; the
liabilities of grand jurors; and the liability of oth-
ers for interference with grand juries.
Subjects excluded from this title and treated in
other titles include indictments and presentments,
the necessity for such accusations, and the finding,
filing, and requisites of such accusations.
l
Other
subjects excluded from this title and treated in
other titles include juries in general,
2
and the privi-
lege against self-incrimination.
3
§ 2. General Considerations
A grand jury is a body of men who, according to law, are
selected and summoned to serve before a competent court and are
I. See c.J.S. Indictments and Informations.
2. See c.J.S. Juries.
3. See c.J.S. Criminal Law and c.J.S. Witnesses.
4. Mo.--State ex rel. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App.
759.
5. U.S.-Geiger v. U.S., Md., 162 F. 844, 89 C.C.A 516.
Md.-In re Report of Grand Jury of Baltimore City, 137 A 370, 152
Md. 616.
N.Y.-People v. Doe, 286 N.Y.S. 343, 247 AD. 324, affirmed 3 N.E.2d
875, 272 N.Y. 473.
People v. Doe, 29 N.Y.S.2d 648, 176 Misc. 943.
6. U.S.-Blair v. U.S., N.Y., 39 S.C!. 468, 250 U.S. 273, 63 L.Ed. 979.
7. N.Y.-Matter of Fuhrer, 419 N.Y.S.2d 426, 100 Misc.2d 315.
8. U.S.-U.S. v. Sells Engineering, Inc., Cal., 103 S.C!. 3133, 463 U.S.
418, 77 L.Ed.2d 743-Branzburg v. Hayes, Ky., 92 S.C!. 2646, 408
U.S. 665, 33 L.Ed.2d 626, dissenting opinion United States v.
Caldwell, 92 S.C!. 2686, 408 U.S. 665, 33 L.Ed.2d 657.
In re Grand Jury Subpoena Served Upon Doe, CA2(N.Y.), 781
F.2d 238, 83 AL.R.Fed. 461, certiorari denied Roe v. U.S., 106 S.C!.
1515, 475 U.S. 1108, 89 L.Ed.2d 914-U.S. v. Claiborne,
CA9(Nev.), 765 F.2d 784, certiorari denied 106 S.C!. 1636, 475 U.S.
1120, 90 L.Ed.2d 182.
Colo.-People v. Maestas,606 P.2d 849, 199 Colo. 143.
D.C.-U.S. v. Coachman, 752 F.2d 685, 243 U.S.App.D.C. 228.
Miles v. U.S., App., 483 A2d 649.
Hawaii--State v. Q'Danie!, 616 P.2d 1383, 62 Haw. 518.
m.-People v. Hayes, 564 N.E.2d 803, 151 139 m.2d 89,
certiorari denied Hayes v. illinois, 111 S.C!. 1601, 449 U.S. 967, 113
L.Ed.2d 664.
Iowa-Maley v. District Court of Woodbury County, 266 N.W. 815,
221 Iowa 732.
Mass.-Commonwealth v. Club Caravan, Inc., 571 N.E.2d 405, 30
Mass.App.C!. 561.
by such court impaneled, sworn, and charged to inquire with
regard to crimes committed within its jurisdiction and to present
all offenders against the law. It is an inquisitorial and accusato-
rial, rather than a trial, body.
Library References
Grand Jury =1, 26, 33.
A grand jury is a body of men selected and
according to law to serve before a com-
petent court and by such court impaneled, sworn,
and charged to inquire with regard to crimes com-
mitted within its jurisdiction, and to present all
offenders against the law in the mode and manner
defined by it.4 It is sometimes called a "grand
inquest,"5 a term denoting a body with powers of
investigation and inquisition.
6
The grand jury
holds a high place as an instrument of justice.
7
The grand jury serves a dual function.
s
First, it
determines if there is probable cause to believe
that a person has committed a crime,
9
so that he
Mo.-Conway v. Quinn, App., 168 S.W.2d 445.
N.J.--State v. Myers, 570 A2d 1260, 239 N.J.Super. 158, certification
denied 604 A2d 598, 127 N.J. 323.
N.Y.-People v. Momoe, 480 N.Y.S.2d 259, 125 Misc.2d 550.
Common law
Dual role of the grand jury as investigator and protector is not
embodied in a catalogue of reguiationsand rules for grand jury
behavior but rather is described in the case law and legal authorities
and passed along as part of our common-law heritage.
U.S.-Application of Jordan, D.C.W.Va., 439 F.Supp. 199.
Balance functions
U.S.-In re Disclosure of Grand Jury Material, N.D.W.Va., 645
F.Supp.76.
Triple function
Ancient function of grand jury in Anglo-American system of justice
has traditionally been to sort accusations of criminal conduct, to
advance public interest through discovery and indictment of persons
chargeable with certain crimes, and to safeguard citizens against arbi-
trary, oppressive, and unwarranted criminal accusations.
N.J.--State v. LeFurge, 502 A2d 35, 101 N.J. 404.
9. U.S.-U.S. v. Sells Engineering, Inc., Cal., 103 S.C!. 3133, 463 U.S.
418, 77 L.Ed.2d 743.
Ariz.--State v. Sanchez, App., 797 P.2d 703, 165 Ariz. 164, review
denied.
Conn.--State v. Couture, 482 A2d 300, 194 Conn. 530, certiorari
denied 105 S.C!. 967, 469 U.S. 1192, 83 L.Ed.2d 971, appeal after
remand 589 A2d 343, 218 Conn. 309.
D.C.-Gregory v. U.S., App., 393 A2d 132.
Primary function
Ariz.--State v. Coconino County Superior Court, Div. II, 678 P.2d
1386, 139 Ariz. 422--State v. Baumann, 610 P.2d 38, 125 Ariz. 404.
330
:8A C.J.S.
to inquire with
,n and to present
ial and accusato-
selected and
before a com-
sworn,
[) crimes com-
;0 present all
e and manner
ned a "grand
nth powers of
grand jury
nt of justice?
;ion.
s
First, it
use to believe
le,9 so that he
;er. 158, certification
Iisc.2d 550.
and protector is not
rules for grand jury
and legal authorities
,age.
upp.199.
rial, N.D.W.Va;, 645
rican system of justice
criminal conduct, to
indictment of
d citizens against arbl-
sations.
4.
03 S.Ct. 3133, 463 U.S.
165 Ariz. 164, review
Conn. 530, certiorari
971, appeal after
ouct, Div. II, 678 P.2d
P .2d 38, 125 Ariz. 404.
38A C.J.S.
should be formally charged 10 and required to stand
trial,l1 and files charges 12 and causes a prosecu-
tion 13 if there is such probable cause. Second, it
. protects citizens against unfounded· prosecutions.
14
The grand jury is a primary security to the inno-
cent against hasty, malicious, and oppressive prose-
ill.-Pbillips v. Graham, 427 NE.2d 550, 56 illDec. 355, 86 ill.2d 274.
N.Y.-People v. Calbud, Inc., 402 N.E.2d 1140, 49 N.Y.2d 389, 426
N.Y.S.2d 238. •
Application of Rodriguez, 468 N.Y.S.2d 833, 121 Misc.2d 694.
Twofold purposes
Purposes of a grand jury proceeding are twofold: it seeks to
determine if a crime has been committed and who committed that
crime.
N.Y.-People v. Perez, 433 N.Y.S.2d 541,105 Misc.2d 845.
Investigatory and accusatory function
N.Y.-People v. Hylton, 529 N.Y.S.2d 412, 139 Misc.2d 645.
Investigate possible offenses
Colo.-People v. Maestas, 606 P.2d 849, 199 Colo. 143.
N.Y.-People v. CurrY, 579 N.Y.S.2d 1000, 153 Misc.2d 61.
10. Colo.-People v. Rickard, 761 P.2d 188.
D.C.-U.S. v. Haldeman, 559 F.2d 31, 181 U.S.App.D.C. 254, certiora-
ri denied EhrIichman v. U.S., 97 S.Ct. 2641, 431 U.S. 933, 53
L.Ed.2d 250 and Mitchell v. U.S., 97 S.Ct. 2641, 431 U.S. 933, 53
L.Ed.2d 250, rehearing denied 97 S.Ct. 2992, 433 U.S. 916, 53
L.Ed.2d 1103.
RI,-State v. Driscoll, 360 A2d 857, 116 RI. 749.
11. U.S.-U.S. v. Rubio, CACaI., 727 F.2d 786.
Alaska-Chief v. State, App., 718 P.2d 475.
Ga.-Beckham v. O'Brien, 336 S.E.2d 375,176 Ga.App. 518.
Mass.-Commonwealth v. McNary, 140 N.E. 255, 246 Mass. 46, 29
AL.R 483.
RI.-State v. Romano, 456 A2d 746.
S.C.-State v. Bramlett, 164 S.E. 873, 166 S.c. 323.
12. U.S.-U.S. v. Ciambrone, C.AN.Y., 601 F.2d 616.
13. ill.-peaple v. Herbert, 438 N.E.2d 1255, 63 ill.Dec. 892, 108
illApp3d 143, certiorari denied Herbert v. illinois, 103 S.Ct. 1190,
459 U.S. 1204, 75 L.Ed.2d 436.
Iowa-Maley v. District Court of Woodbury County, 266 N.W. 815,
221 Iowa 732.
N.Y.-People v. Blair, 33 NXS.2d 183, 17 Misc.2d 265.
S.C.-State v. Bramlett, 164 S.E. 873, 166 S.C."323.
14. U.S.-U.S. v. Sells Engineering, Inc., Cal., 103 S.Ct. 3133, 463
U.S. 418, 77 L.Ed.2d 743.
U.S. v. Qaiborne, CA9(Nev.), 765 F.2d 784, certiorari denied 106
S.Ct. 1636, 4.75 U.S. 1120, 90 L.Ed.2d 182.
Alaska-Preston v. State, 615 P.2d 594.
Iowa-Maley v. District Court of Woodbury County, 266 N.W. 815,
221 Iowa 732.
Mass.-Commonwealth v. McLeod, 477 N.E.2d 972, 394 Mass. 727,
certiorari denied Aiello v. Massachusetts, 106 S.Ct. 248, 474 U.S.
919, 88 L.Ed.2d 256.
N.Y.-People v. Blair, 33 N.Y.S.2d 183, 17 Misc.2d 265.
Pa.-Commonwealth v. Hubbs, 8 A2d 611, 137 Pa.Super. 229.
GRAND JURIES § 2
cution, and stands between accused and accuser to'
determine whether a charge is founded upon rea-
son or was dictated by an intimidating power or by
malice and personal ill will.
1s
A grand jury is an inquisitorial,16 informing,17 and
accusing IS body, and it is not a trial body.19 Thus,
Principal purpose
U.S.-U.S. v. Thomas, CA7(IIl.), 788 F.2d 1250, certiorari denied 107
S.Ct. 187, 479 U.S. 853, 93 L.Ed.2d 121, appeal after remand 934
F.2d 840.
One of its primary functions
One of primary functions of grand jury is to act as shield against
arbitrary prosecution.
ill.-People v. Rodgers, 442 N.B.2d 240, 65 IIl.Dec. 929, 92 IIl.2d 283.
Check against prosecutor and judge
Among functions of grand jury is to provide check against overzea"
lous or mistaken prosecutor or overconditioned or biasedresponse of a
judge.
U.S.-U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269.
15. U.S.-Wood v. Georgia, Ga., 82 S.Ct. 1364, 370 U.S. 375, 8
L.Ed.2d 569. .
16. Ala.-Carr v. State, 187 So. 252, 28 Ala:App. 466.
Alaska-U.S. v. Caldwell, 8 Alaska 117.
Cal.-People v. Foster, 243 P. '667, 198 C. 112.
Fla.-Skipper v. Schumacher, 169 So. 58, 124 Fla. 384, appeal dis-
missed and certiorari denied 57 S.Ct. 39, 299 U.S. 507, 81 L.Ed.
376-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on rehearing
131 So. 14t'100 Fla. 373-Reed v. State, 113 So. 630, 94 Fla. 32.
Ind.-Adams v. State, 17 N.E.2d 84, 214 Ind. 603, 118 AL.R 1095.
OkI.-Tweedy v. Oklahoma Bar Ass'n, 624 P'2d 1049.
General criminal investigation
(1) The grand jury is an investigating body.
Md.-Hitzelberger v. State, 196 A 288, 173 Md. 435.
(2) The proceedings before a grand jury constitute the only general
crinlinal investigation known to the law.
N.Y.-Ward Baking Co. v. Western Union Telegraph Co., 200 N.Y.S.
865, 205 AD. 723. .
17. U.S.-U.S. v. Atlantic Commission Co., D.C.N.C., ,45 F.Supp.
187.
N.C.-State v. Crowder, 136 S.B. 337, 193 N.C. 130.
S.C.-State v. Bramlett, 164 S.B. 873, 166 S.C. 323.
18. U.S.-U.S. v. Atlantic Commission Co., D.C.N.C., 45 F.Supp.
187.
Fla.-Skipper v. Schumacher, 169 So. 58, 124 Fla. 384, appeal dis-
missed and denied 57 S.Ct. 39, 299 U.S. 507, 81 L.Ed.
376-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on rehearing
131 So. 147, 100 Fla. 373-Reed v. State, 113 So. 630, 94 Fla. 32.
Md.-Hitzelberger v. State, 196 A 288, 173 Md. 435-Coblentz v.
State, 166 A 45, 164 Md. 558, 88 AL.R 886.
S.C.-State v. Bramlett, 164 S.E. 873, 166 S.C. 323.
Wis.-State v. Lawler, 267 N.W. 65, 221 Wis. 423,105 AL.R 568.
19. U.S.-U.S. v. Atlantic Commission Co., D.C.N.C., 45 F.Supp.
187.
331
§ 2 GRAND JURIES
it does not detennine guilt or innocence,20 and is
not ,the ultimate fact flnder,21 or a trier of fact,22
and does not try or convict,23 and merely deter-
mines whether there is probable cause for a
charge,24 and whether an accusation is warranted,25
and not whether a conviction is warranted.
26
In-
vestigating, as distinct from indicting, grand juries
do not even accuse, but only inquire and report.
27
20. U.S.-Bracy v. U.S., Cal., 98 S.Ct. 1171, 435 U.S. 1301, 55
L.Ed.2d 489, rehearing denied 98 S.Ct. 1603, 435 U.S. 965, 56
L.Ed.2d 57 (per Mr. Justice Rebnquist, as Circuit Justice).
U.S. v. Leverage Funding Systems, Inc., C.ACaI., 637 F.2d 645,
certiorari denied 101 S.Ct. 3110, 452 U.S. 961, 69 L.Ed.2d 972.
U.S. v. Atlantic Commission Co., D.C.N.C., 45 F.Supp. 187-U.S.
v. Direct Sales Co., D.C.S.C., 40 F.Supp. 917.
Conn.-In re Investigation of Grand Juror into Bethel Police Dept.,
452 A2d 935, 188 Conn. 601.
F1a.-Skipper v. Schumacher, 169 So. 58, 124 Fla. 384, appeal dis-
missed and certiorari denied 57 S.Ct. 39, 299 U.S. 507, 81 L.Ed. 376.
Mass.-Commonwealth v. McLeod, 477 N.E.2d 972, 394 Mass. 727,
certiorari denied Aiello v. Massachusetts, 106 S.Ct. 248, 474- U.S.
919, 88 L.Ed.2d 256.
N.M.-State v. Juarez, App., 790 P.2d 1045, 109 N.M. 764, certiorari
denied 790 P.2d 1032, 109 N.M. 751.
N.Y.-People v. Calbud, Inc., 402 N.E.2d 1140, 49 N.Y.2d 389, 426
N.Y.S.2d 238.
People v. Watson, 486 N.Y.S.2d 592, 127 Misc.2d 439.
Wyo.-Hennigan v. State, 746 P.2d 360.
Prosecntorial ann
A grand jury is not a judicial arm but a prosecutorial arm.
Md.-Bartram v. State, 364 A2d 1119, 33 Md.App. 115, affirmed 374
A2d 1144, 280 Md. 616.
21. Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on
rehearing 131 So. 147, 100 Fla. 373.
22. Conn.-In re Investigation of Grand Juror into Bethel Police
Dept., 452 A2d 935, 188 Conn. 601.
Md.-Bartram v. State, 374 A2d 1144, 280 Md. 616.
23. U.S.-In re Oliver, Mich., 68 S.Ct. 499, 333 U.S. 257, 92 L.Ed.
682.
24. U.S.-Bracy v. U.S., Cal., 98 S.Ct. 1171, 435 U.S. 1301, 55
L.Ed.2d 489, rehearing denied 98 S.Ct. 1603, 435 U.S. 965, 56
L.Ed.2d 57 (per Mr. Justice Rebnquist, as Circuit Justice):
Falamante -v. Romero, CAN.M., 620 F.2d 784, certiorari denied
101 S.Ct. 223, 449 U.S. 877, 66 L.Ed.2d 99.
U.S. v. Boffa, D.C.Del., 513 F.Supp. 444.
Alaska-Coleman v. State, 553 P.2d 40.
Ariz.-State ex reI. Collins v. Kamin, 725 P.2d 1104, 151 Ariz. 70.
Minn.-State v. Moore, 438 N.W.2d 101.
W.Va.-State ex reI. Pinson v. Maynard, 383 S.E.2d 844, 181 W.Va.
662.
25. N.D.-State v. Nordquist, 309 N.W.2d 109.
26. N.D.-State v. Nordquist, 309 N.W.2d 109.
27. Conn.-In re Investigation of Grand Juror into Bethel Police
Dept., 452 A2d 935, 188 Conn. 601.
Special grand jnry
Sole function of special grand jury is to gather evidence and
synthesize its findings into report which may be presented to regular
grand jury.
38A C.J.S.
Grand jury proceedings are ex parte rather than
adversarial,28 and are part of the investigatory pro-
cess rather than the prosecution.
29
The grand jury
is unfettered by technical rules 30 such as those
which apply at trial.
31
Constitutional rights appli-
cable at trial are inapplicable or not fully applicable
to grand jury proceedings.32
Va.-Vihko v. Commonwealth, 393 S.E.2d 413,10 Va.App. 498.
28. U.S.-U.S. v. Civella, CAMo., 666 F.2d 1122-U.S. v. Ocanas,
CA Tex., 628 F.2d 353, rehearing denied -633 F.2d 582, certiorari
denied 101 S.Ct. 2316,451 U.S. 984, 68 L.Ed.2d 840.
U.S. v. Rodriguez, S.D.N.Y., 777 F.Supp. 297-State of New
Jersey ex reI. Kudisch on Behalf of Vargas v. Overbeck, D.C.N.J.,
618 F.Supp. 196.
Fla.-Antone v. State, 382 So.2d 1205, certiorari denied 101 S.Ct. 287,
449 U.S. 913, 66 L.Ed.2d 141, rehearing denied 101 S.Ct. 632, 449
U.S. 1057, 66 L.Ed.2d 512.
Hawaii-State v. Kahlbaun, 638 P.2d 309, 64 Haw. 197-State v.
Rodrigues, 629 P.2d 1111, 63 Haw. 412.
Mo.-State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App. 759.
Mont.-State ex reI. Brackman v. District Court of First Judicial Dist.
In and For Lewis and Gark County, 560 P.2d 523, 172 Mont. 24.
N.Y.-People v. Lancaster, 503 N.E.2d 990, 69 N.Y.2d 20, 511
N.Y.S.2d 559, certiorari denied Lancaster v. New York, 107 S.Ct.
1383,480 U.S. 922, 94 L.Ed.2d 697-People v. Brewster, 472 N.E.2d
686, 63 N.Y.2d 419, 482 N.Y.S.2d 724.
29. N.Y.-People v. Fills, 386 N.Y.S.2d 988, 87 Misc.2d 1067.
30. U.S.-Costello v. U.S., N.Y., 76 S.Ct. 406, 350 U.S. 359, 100
L.Ed. 397, rehearing denied 76 S.Ct. 692, 351 U.S. 904, 100 L.Ed.
1440.
Ala.-Gore v. State, 114 So. 791,22 Ala.App. 136, certiorari denied Ex
parte State ex reI. Attorney General, 114 So.794, 217 Ala. 68.
31. U.S.-U.S. v. R. Enterprises, Inc., Va., 111 S.Ct. 722, 112 L.Ed.2d
795, 498 U.S. 292, on remand In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d 229-U.S. v. Calandra, Ohio, 94 S.Ct. 613,
414 U.S. 338, 38 L.Ed.2d 561, 66 O.O.2d 320-U.S. v. Johnson, m.,
63 S.Ct. 1233, 319 U.S. 503, 87 L.Ed. 1546, rehearing denied 64 S.Ct.
25, 320 U.S. 808, 88 L.Ed. 488 and U.S. v. Sommers, 64 S.Ct. 25, 320
U.S. 808, 88 L.Ed. 488.
U.S. v. Hyder, CAFla., 732 F.2d 841.
m.-People v. Pinjoli, 581 N.E.2d 693, 3 Dist., 163 m.Dec. 539, 221
m.App.3d 254. -
lowa-State v. Paulsen, 286 N.W.2d 157.
32. U.S.-U.S. v. Shober, D.C.Pa., 489 F.Supp. 393.
Conn.-State v. Stepney, 435 A2d 701, 181 Conn. 268, certiorari
denied 101 S.Ct. 856,449 U.S. 1077, 66 L.Ed.2d 799.
Fla.-Antone v. State, 382 So.2d 1205, ~ o r a r i denied 101 S.Ct. 287,
449 U.S. 913, 66 L.Ed.2d 141, reheanng denied 101 S.Ct. 632, 449
U.S. 1057, 66 L.Ed.2d 512.
Mass.-Commonwealth v. McLeod, 477 N.E.2d 972, 394 Mass. 727,
certiorari denied Aiello v. Massachusetts, 106 S.Ct. 248, 474 U.S.
919, 88 L.Ed.2d 256.
N.M . ...,..Matter of Grand Jury Sandoval County, App., 750 P.2d 464,
106 N.M. 764.
Protect limited rights
Since an accused has no right with respect to grand jury proceedings
except that grand jury be duly impaneled and conducted according to
law, his right in that respect should be rigorously protected.
332
38A C.J.S.
.rte rather than
vestigatory pro-
The grand jury
such as those.
lal rights appli-
fully applicable
o Va.App. 498.
. 122-U.S. v. Ocanas,
3 F.2d 582, certiorari
d 840.
. 297-State of New
'. Overbeck, D.C.N.J.,
. denied 101 S.Ct. 287,
ied 101 S.U 632, 449
Haw. 197-State v.
I, 229 Mo.App. 759.
t of First Judicial Dist.
2d 523, 172 Mont. 24.
, 69 N.Y.2d 20, 511
New York, 107 S.Ct.
'. Brewster, 472 N.E.2d
, Misc.2d 1067.
1l6, 350 U.S. 359, 100
H U.s. 904, 100 L.Ed.
16, certiorari denied Ex
So. 794, 217 Ala. 68.
S.Ct. 722, 112 L.Ed.2d
d Jury 87-3 Subpoena
Ira, Ohio, 94 S.Ct. 613,
}-U.S. v. Johnson, ill.,
hearing denied 64 S.Ct.
mmers, 64 S.Ct. 25, 320
,., 163 ill.Dec. 539, 221
1.393.
L Conn. 268, certiorari
.2d 799.
.ri denied 101 S.Ct. 287,
,nied 101 S.Ct. 632, 449
2d 972, 394 Mass. 727,
106 S.Ct. 248, 474 U.S.
tty, App., 750 P.2d 464,
o grand jury proceedings
, conducted according to
sly protected.
38A C.J.S.
A grand jury is generally not regarded as a
judicial body or tribunal.
33
However, its functions
are of a judicial nature; 34 a proceeding before it
constitutes a judicial inquiry; 35 and according to
some authorities it is regarded as a judicial body or
tribunal.
36
Sometimes it is described as a govern-
mental agency.37
A grand jury proceeding is a criminal proceed-
ing,.38 even though it may result in a civil contempt
citation.
39
It has been said that grand juries are
concerned with facts, not statutes.
40
Multiple grand juries .
The same matters may be considered by more
than one grand jury.41 A potential accused has no
right to have his case considered by a particular
grand jury,42 and is not automatically prejudiced
when a court impanels a new grand jury instead of
recalling a discharged one.
43
Presumption of regularity.
Grand jury proceedings are granted a presump-
tion of regularity,« and a grand jury is presumed
to have acted in accordance with its sworn duty.45
§ 3. Relation to Other Bodies and Officers
a. In general
b. Relation to prosecuting officer
N.M.-Baird v. State, 568 P.2d 193, 90 N.M. 667.
33. Md.-Coblentz v. State, 166 A 45, 164 Md. 558, 88 AL.R. 886.
34. Mo.-State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App.
759.
Judicial rather than legislative
Wis.-State ex reI. Town of Caledonia, Racine County v. County Court
of Racine County, 254 N.W.2d 317, 78 Wis.2d 429.
35. U.S.-Levine v. U.S., N.Y., 80 S.Ct. 1038, 362 U.S. 610, 4 L.Ed.2d
989, rehearing denied 80 S.U 1605,363 U.S. 858, 4 L.Ed.2d 1739-
Cobbledick v. U.S., Cal., 60 S.Ct. 540, 309 U.S. 323, 84 L.Ed. 783.
36. CaI.-Greenberg v. Superior Court for City and County of San
Francisco, 121 P.2d 713, 19 C.2d 319.
GRAND JURIES § 3
a. In General
While a grand jury is generally regarded as a part of. the
court to which it is attached, it is to some extent independent of
the court.
Library References
Grand Jury <PI, 33.
The grand jury is to some extent under the
supervision of the court, as discussed infra § 78.
According to some authorities, a grand jury is
never an independent body,46 whether it is engaged
in the exercise of its ordinary functions and powers
in considering formal indictments laid before it by
the district attorney, or in the performance of the
special and occasional duty of investigating matters
given it in charge by the COurt.
47
However, al-
though after it is summoned, a grand jury does not
become an entirely independent body,48 it is very
generally conceded that after it is duly organized
the larger part of its legitimate functions is to be
performed by it as a separate and independent
body acting apart from the court.
49
A grand jury is
clothed with great independence in many areas. 50
Some authorities state that a grand jury is a sepa-
44. U.S.-In re Grand Jury Proceedings, CA1(Puerto Rico), 814
F.2d 61.
Existence of presumption in criminal proceeding see C.J .S. Criminal
Law§ 702.
45. U.S.-Schwartz v. U.S. Dept. of Justice, D.C.Pa., 494 F.Supp.
1268.
46. Pa.-Shenker v. Harr, 2 A2d 298, 332 Pa. 382.
Commonwealth v. Hubbs, 8 A2d 611, 137 Pa.Super. 229.
47. Pa.-Coll!Dlonwealth v. Hubbs, 8 A2d 611, 137 Pa.Super. 229.
48. U.S.-In re National Window Glass Workers, D.C.Ohio, 287 F.
1 Ohio Law Abs. 419.
49. Old.-Coleman v. State, 118 P. 594, 6 OId.Cr. 252.
Ex parte Bruns, 58 P.2d 1318, 15 C.A2d I-Ex parte Peart, 43 Wbether grand jury can investigate offense not called to its attention
P.2d 334, 5 CA2d 469-hwin v. Murphy, 19 P.2d 292, 129 CA 713. by court see infra § 79.
N.C.-State v. Crowder, 136 S.E. 337, 193 N.C. 130.
37. Tenn.-Stanley v. State, 104 S.W.2d 819, 171 Tenn. 406.
Tex.-Ex parte Kennedy, 33 S.W.2d 443, 116 Tex.Cr. 118.
Ex parte Port, CrApp., 674 S.W.2d 772.
38. ·U.S.-In re Williams, W.D.Pa., 766 F.Supp. 358, affirmed 963
F.2d567.
39. U.S.-In re Williams, W.D.Pa., 766 F.Supp. 358, affirmed 963
F.2d567.
40. Alaska-Nicholson v. State, App., 656 P.2d 1209.
41. U.S.-In re Grand Jury Proceedings, CAOId., 658 F.2d 782.
42. Iowa-State v.oPaulsen, 286 N.W.2d 157.
43. Iowa-State v. Paulsen, 286 N.W.2d 157.
Freedom from influence or coercion
(1) On being impaneled, the grand jury is an independent body or
arm of the court in its investigations and work in the sense that it is
free from restraint or coercion from any source. .
Mo.-State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App. 759.
(2) It must act free from influence, fear, favor, affection, reward, or
hope thereof, proceeding from, or without, the court.
U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
50. U.S.-Brown v. U.S., N.Y., 79 S.Ct. 539, 359 U.S. 41, 3 L.Ed.2d
609, rehearing denied 79 S.Ct. 873, 359 U.S. 976, 3 L.Ed.2d 843.
In re Grand Jury Investigation of Hugle, C.A.9(CaI.), 754 F.2d
863.
In re Grand Jury 79-01, D.C.Ga., 489 F.Supp. 844.
333
'·--it;;IIIIIIIIIIIIIIIIII[lIIIII.IIII •• ..
§ 3 GRAND JURIES
rate, distinct,51 independent 52 body; or that it
may 53 or must 54 act independently of the court; 55
or that, although, as stated supra this section, it is
a part or adjunct of the court, it is an independent
and self-acting body 56 and, within its field, operates
wholly independently of the court. 57
A grand jury is not and should not be captive to
any of the three branches of government, 58 and
belongs to neither the executive nor the judicial
branch.
59
51. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
Tex.-Barnes v. State, 116 S.W.2d 408, 134 Tex.Cr. 461.
Separate tribunal
Tex.-Ex parte Port, Cr.App., 674 S.W.2d 772.
52. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
CaI.-Ex parte Peart, 43 P.2d 334, 5 CA2d 469.
53. Ariz.-Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260.
Tenn.--Stanley v. State, 104 S.W.2d 819, 171 Tenn. 406.
54. U.S.-U.S. v. Hyder, CAFla., 732 F.2d 841.
U.S. v. Provenzano, D.C.N.Y., 440 F.Supp. 561.
55. N.J.--State v. Hilltop Private Nursing Home, Inc., 426 A2d 1041,
177 N.J.Super. 377.
56. N.C.-Lewis v. Wake County Com'rs, 74 N.C. 194.
57. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
58. U.S.-U.S. v. Chanen, C.AAriz., 549 F.2d 1306, certiorari denied
98 S.Ct. 72, 434 U.S. 825, 54 L.Ed.2d 83. .
59. U.S.-U.S. v. Udziela, CAlli., 671 F.2d 995, certiorari denied
102 S.Ct. 2964, 457 U.S. 1135, 73 L.Ed.2d 1353.
60. Ind.-Adams v. State, 17 N.B.2d 84, 214 Ind. 603, 118 AL.R.
1095.
61. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
Cal.-Ex parte Bruns, 58 P.2d 1318, 15 CA2d I-Irwin v. Murphy, 19
P.2d 292,129 CA 713.
62. N.Y.-In re Grand Jurors Ass'n, Bronx County, 25 N.Y.S.2d 154.
63. Pa.--Shenker v. Harr, 2 A2d 298, 332 Pa. 382.
64. Ky.-Bowling v. Sinnette, 666 S.W.2d 743.
Mo.--State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App. 759.
N.Y.-People v. DiFabio, 4 Dept., 566 N.Y.S.2d 172, 170 AD.2d 1028,
affirmed 588 N.E.2d 80, 79 N.Y.2d 836, 580 N.Y.S.2d 182-Dodge v.
Supreme Court, State of New York, 291 N.Y.S. 527, 249 AD. 103,
affirmed 12 N.E.2d 538, 276 N.Y. 444--People v. Jackson, 199
N.Y.S. 870, 205 AD. 202--People v. Pisanti, 38 N.Y.S.2d 850, 179
Misc. 308.
N.C.-Lewis v. Wake County Com'rs, 74 N.C. 194.
Part of court system
U.S.-In re Grand Jury 79-m, D.C.Ga., 489 F.Supp. 844.
Part of criminal judicial process
Minn.-In re Grand Jury of Wabasha County, Charged by Court
January 19, 1976, 244 N.W.2d 253, 309 Minn. 148.
Part of court machinery
A grand jury is part of the federal court machinery.
U.S.-Application of Texas Co., D.C.lli., 27 F.Supp. 847.
38A C.J.S.
It has been held that grand jurors are not judi-
cial officers,so but more frequently they are regard-
ed as officers of the COurt.
61
Insofar as other grand juries or jurors are con-
cerned, each panel of grand jurors is a distinct
legal entity.62 There is no serious legal objection,
according to some authorities, to the operation of
two grand juries in the county at the same time.
63
A grand jury is a constituent part or branch of a
court 64 having general criminal jurisdiction,65 it is
an arm,66 appendage,67 agency,68 or adjunct 69 of the
65. Hawaii-Matter of Moe, 617 P.2d 1222, 62 Haw. 613.
lli.-People v. Sheridan, 181 N.B. 617, 349 lli. 202.
People v. Conzo, 23 N.E.2d 210, 301 lli.App. 524.
66. U.S.-Levine v. U.S., N.Y., 80 S.Ct. 1038,362 U.S. 610, 4 L.Ed.2d
989, rehearing denied 80 S.Ct. 1605, 363 U.S. 858, 4 L.Ed.2d 1739.
In re Swearingen Aviation Corp., D.C.Md., 486 F.Supp. 9, disclo-
sure ordered 605 F.2d 125.
Mo.--State v. McClure, 31 S.W.2d 39, 325 Mo. 1228.
N.Y.--Spector v. Allen, 22 N.E.2d 360, 281 N.Y. 251.
People v. Monroe, 480 N.Y.S.2d 259, 125 Misc.2d 550---People v.
Aviles, 391 N.Y.S.2d 303, 89 Misc.2d 1.
Ohio--State ex reI. Shoop v. Mitrovich, 448 N.E.2d 800, 4 Ohio St.2d
220, 4 O.B.R. 575.
Pa.--Shenker v. Harr, 2 A2d 298, 332 Pa. 382-Petition of McNair,
187 A 498, 324 Pa. 48, 106 AL.R. 1373.
Commonwealth v. Hubbs, 8 A2d 611, 137 Pa.Super. 229.
Arm of court system
Alaska--O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163
(per Matthews, Chief Justice, with one Justice concurring and one
Justice concurring in part).
Arm of judiciary
U.S.-In re Grand Jury Investigation of Cuisinarts, Inc., C.AConn.,
665 F.2d 24, certiorari denied Connecticut v. Cuisinarts, Inc., 103
S.Ct. 1520, 460 U.S. 1068, 75 L.Ed.2d 945.
D.C.-Washington v. U.S., App., 366 A2d 457.
Tex.-Euresti v. Valdez, App.-Corpus Christi, 769 S.W.2d 575.
Agent of state
A grand jury is an agent of the sovereign state, a body constituting
an arm of the court.
N.Y.-People v. Cirillo, 419 N.Y.S.2d 820, 100 Misc.2d 502.
67. U.S.-Brown v. U.S., N.Y., 79 S.Ct. 539, 359 U.S. 41, 3 L.Ed.2d
609, rehearing denied 79 S.Ct. 873, 359 U.S. 976, 3 L.Ed.2d 843.
In re Terranova, D.C.Wis., 495 F.Supp. 837.
68. MO.--State v. McClure, 31 S.W.2d 39, 325 Mo. 1228.
69. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
Necessary adjunct
A grand jury is a necessary adjunct of all courts charged with the
enforcement of the criminal law.
Mo.--State ex reI. Lashly v. Wurdeman, 187 S.W. 257.
334
c
a
a
e
p
d
pe
of
ly
th,
tal
ti(]
gr
gr:
70.
71.
2
n.
73.
6(
74.
I n v ~
n J ~
Cal.,
a
75.
76.
77.
78.
79.
N.Y.·
Tenn
SO.
81.
21!
82.
38A C.J.S.
'Ors are not judi-
they are regard-
r jurors are con-
ors is a distinct
s legal objection,
the operation of
the same time.
63
crt or branch of a
llrisdiction,65 it is
r adjunct 69 of the
lHaw.613.
102.
'p.524.
362 u.s. 610,4 L.Ed.2d
s. 858, 4 L.Ed.2d 1739.
I., 486 F.Supp. 9, disc1o-
1228.
'l.251.
Misc.2d 550--People v.
f.E.2d 800, 4 Ohio St.2d
82-Petition of McNair,
Pa.Super. 229.
!icial Dist., 816 P.2d 163
:tice concurring and one
. sinarts, Inc., C.AConn.,
t v. Cuisinarts, Inc., 103
1.
769 S.W.2d 575.
state, a body constituting
I Misc.2d 502.
I, 359 U.S. 41, 3 L.Ed.2d
J.S. 976, 3 L.Ed.2d 843.
37.
~ Mo. 1228.
dbury County, 266 N.W.
, courts charged with the
l.W.257.
38A C.J.S.
court, but is not the court.
70
It has no existence
aside from the court which calls it into existence
and on which it is attending; 71 and it may be
empowered to discharge the legal functions im-
posed on it only by virtue of the authority which it
derives as a body of men sworn and impaneled in
open court in the mode prescribed by law.72 It is
powerless to perform its investigative function
without the court's aid.
73
However, it has also been
held that a grand jury is not an agency of the
COurt.
74
b. Relation to Prosecuting Officer
The grand jury is not an agency of the prosecuting officer.
Research Note
Whether grand jury can investigate offense not submitted by
prosecutor is treated infra § 79.
A grand jury is not an agency,75 arm,76 or ap-
pendage
77
of the prosecuting officer, or an adjunct
of his office.
78
It can 79 and must
SO
act independent-
ly of the prosecuting officer, and cannot function at
the uncontrolled will of such officer or his assis-
tant,81 or become an instrument of the prosecu-
tion.82 Although the prosecutor may guide the
grand jury in the exercise of its functions, the
grand jury alone determines the course of an inves-
70. N.Y.-Spector v. Allen, 22 N.E.2d 360, 281 N.Y. 251.
Application of Mullen, 31 N.Y.S.2d 710, 177 Misc. 734.
71. U.S.-In re National Window Glass Workers, D.C.Ohio, 287 F.
219, 1 Ohio Law Abs. 419.
72. Mass.-Commonwealth v. Bannon, 97 Mass. 214 .
73. U.S.-Brown v. U.S., N.Y., 79 S.Ct. 539, 359 U.S. 41, 3 L.Ed.2d
609, rehearing denied 79 S.Ct. 873, 359 U.S. 976, 3 L.Ed.2d 843.
74. Tenn.-StanIey v. State, 104 S.W.2d 819, 171 Tenn. 406.
Investigating government
Grand jury's function of investigating and reporting on local govern-
ment is not inherently part of judicial system.
Cal.-Gillett-Harris-Duranceau & Associates, Inc. v. Kemple, 147
Cal.Rptr. 616, 83 CA3d 214.
75. Tenn.-StanIeyv. State, 104 S.W.2d 819, 171 Tenn. 406.
76. N.Y.-People v. Aviles, 391 N.Y.S.2d 303, 89 Misc.2d 1.
77. N.Y.-People v. Cirillo, 419 N.Y.S.2d 820, 100 Misc.2d 502.
78. Cal.-Ex parte Peart, 43 P.2d 334, 5 CA2d 469.
79. Ariz.-Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260.
N.Y.-People v. Monroe, 480 N.Y.S.2d 259, 125 Misc.2d 550.
Tenn.--StanIey v. State, 104 S.W.2d 819, 171 Tenn. 406.
80. U.S.-U.S. v. Hyder, CAFla., 732 F.2d 841.
U.S. v. Provenzano, D.C.N.Y., 440 F.Supp. 561.
81. U.S.-In re National Wmdow Glass Workers, D.C.Ohio, 287 F.
219, 1 Ohio Law Abs. 419.
82. Minn.--State v. Richards, App., 464 N.W.2d 540, review denied.
GRAND JURIES § 4
tigation.
83
The prosecutor has a limited function in
his dealings with the grand jury.84 The grand jury
performs its investigative function under the di-
rection, but not under the control, of the prosecu-
tor.85
However, the relation between a public prosecut-
ing officer and the grand jury to whom he trans-
mits his bills of indictment is not to be determined
by any rule of universal application.
86
The presence of the prosecuting officer in the
grand jury room and his participation in the pro-
ceedings is discussed infra § 102.
§ 4. Origin and History
The grand jury system is of ancient common·law origin.
At the time of the settlement of this country the grand jury no
longer retained its early function of trying offenders as well as
accusing them.
Library References
Grand Jury e=>l.
The institution of the grand jury is of very
ancient origin,87 it goes back many centuries 88 to
the early history of England.
89
Although attempts
have been made to trace the institution back to its
first existence,90 it is said that its origin is lost in
obscurity.91 At any rate, the grand jury system is
83. U.S.-U.S. v. DiBernardo, CAll (Fla.), 775 F.2d 1470, certiorari
denied 106 S.Ct. 1948, 476 U.S. 1105, 90 L.Ed.2d 357, on remand
657 F.Supp.· 500, affirmed in part, vacated in part 880 F.2d 1216.
In re Grand Jury Proceediogs, D.Puerto Rico, 700 F.Supp. 626.
84. U.S.-U.S. v. Pabian, CAFla., 704 F.2d 1533.
85. U.S.-U.S. v. Cosby, C.A.Ga., 601 F.2d 754, 60 AL.R.Fed. 67.
86. N.C.-State v. Crowder, 136 S.E. 337, 193 N.C. 130.
87. U.S.-U.S. v. Olmstead, D.C,Wash., 7 F.2d 756.
Iowa-Maley v. District Court of Woodbury County, 266 N.W. 815, j
221 Iowa 732. v
Md.-In re Report of Grand Jury of Baltimore City, 137 A 370, 152
Md. 616.
MO.-Conway v. Qninn, App., 168 S.W.2d 445.
Ohio--State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs. 766.
88. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
Mo.-Conway v. Qninn, App., 168 S.W.2d 445.
89. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
90. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
Md.-In re Report of Grand Jury of Baltimore City, 137 A 370, 152
Md. 616.
Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
Pa.-Petition of McNair, 187 A. 498, 324 Pa. 48, 106 A.L.R. 1373.
91. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
Pa.-Petition of McNair, 187 A. 498, 324 Pa. 48, 106 AL.R. 1373.
335
§ 4 GRAND JURIES
a product of the common law,92 the civil law making
no provision for a body like the grand jury; 93 it
came to this country as a part of the common law.
94
The grand jury was, at first, a body not only of
accusers, but of triers as well; 95 but at the time of
the settlement of this country it was an informing
and accusing tribunal only.96 It originated when
there raged a conflict between the rights of the
subject and the power of the crown; 97 it served in
England as a barrier between the king and the
rights of the subject 98 and secured the subject
against oppression from unfounded prosecutions of
the crown.
99
§ 5. Constitutional and Statutory Provisions in
General
In federal prosecutions, the Fifth Amendment has adopted
the grandjury as it existed at common law. In a state which has
adopted the common law, a constitutional provision relating to
the grand jury is deemed to refer to the common·law grand jury.
Library References
Grand Jury e->1, 2.
The Fifth Amendment to the United States Con-
stitution provides that, in federal courts, certain
crimes can be prosecuted only on a presentment or
indictment of a grand jury, as discussed in C.J.S.
Indictments and Informations § 6. The Fifth
Amendment has adopted the grand jury as it exist-
ed at common law.
l
The Federal Constitution does not require the
use of grand juries in state court prosecutions, as
discussed in C.J.S. Constitutional Law §§ 1016,
1019 and C.J.S. Indictments and Informations §§ 6,
92. Cal.-Fitts v. Superior Court in and for Los Angeles County, 57
P.2d 510, 6 C.2d 230.
TII.-People ex reI. Ferrill v. Graydon, 164 N.E. 832, 333 m. 429.
93. Cal.-Fitts v. Superior Court in and for Los Angeles County, 57
P.2d 510, 6 C.2d 230.
94. Fla.-Cotton v. State, 95 So. 668, 85 Fla. 197.
v. District Court of Woodbury County, 266 N.W. 815,
221 Iowa 732.
Okl.-Blake v. State, 14 P.29 240, 54 Okl.Cr. 62.
95. U.S.-U.S. v: Olmstead, D.C. Wash., 7 F.2d 756.
Iowa-Maley v. District Court of Woodbury County, 266 N.W. 815,
221 Iowa 732.
Md-Hitzelberger v. State, 196 A 288, 173 Md. 435-Gamble v. State,
163 A 859, 861, 164 Md. 50-In re Report of Grand Jury of
Baltimore City, 137 A 370, 152 Md. 616.
96. U.S.-U.S. v. Olmstead, D.C.Wasb., 7 F.2d 756.
97. U.S.-U.S. v. Olmstead, D.C.Wash., 7 F.2d 756.
98. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
99. Iowa-Maley v. District Court of Woodbury County, 266 N.W.
815, 221 Iowa 732.
38A C.J.S.
9. If a state chooses to use grand juries, require-
ments imposed in federal prosecutions by the Fifth
Amendment provision concerning grand juries are
inapplicable in state prosecutions.
2
However, the
state is bound by the Fourteenth Amendment re-
quirements of due process and equal protection.
3
In many states, constitutional or statutory provi-
sions require that certain crimes be prosecuted on
indictment or presentment by a grand jury, as
considered in C.J.S. Indictments and Informations
§ 6. In a state which has adopted the common
law, a constitutional provision relating to the grand
jury is deemed to refer to the common-law grand
jury of historic origin.4 However, in some states
the creation of grand juries is not constitutionally
required.
5
Where not constitutionally required, the
grand jury is a creature of statute.
6
The legisla-
ture may enact a statute providing for grand juries
even in the absence of a constitutional requirement
of grand juries.
7
Where a grand jury system is
derived from common law, the elimination of a
constitutional provision for grand juries does not
invalidate such system.
8
It is judicially noted that some states have prac-
tically abolished the grand jury,9 as by allowing,
through constitutional provisions, all prosecutions
to be begun and carried out without the interven-
tion of a grand jury,I0 but providing that a grand
jury may be called where prosecuting officers will
not act.
ll
The view is asserted that, generally
speaking, under modern conditions, a grand jury is
an antiquated, superfluous, and well-nigh useless
1. U.S.-Application of Jordan, D.C.W.Va., 439 F.Supp. 199.
2. U.S.-Boothe v. Wyrick, D.C.Mo., 452 F.Supp. 1304.
Iowa-State v. Williams, 285 N.W.2d 248, certiorari denied 100 S.Cl
1859, 445 U.S. 921, 64 L.Ed.2d 277.
3. R.I.-State v. Jenison, 405 A2d 3, 122 R.I. 142.
4. Cal.-Fitts v. Superior Court in and for Los Angeles County, 57
P.2d 510,6 C.2d 230.
5. Nev.-Gier v. Ninth Judicial Dist. Court of State of Nev., In and
For County of Douglas, 789 P.2d 1245, 106 Nev. 208.
6. m.-People v. Gibson, 440 N.E.2d 339, 64 m.Dee. 787, 109
m.App.3d 316., habeas corpus dismissed in part, granted in part U.S.
ex reI. Gibson v. McGinnis, 773 F.Supp. 126, habeas corpus denied
793 F.Supp. 173.
7. Conn.-State v. Sanabria, 474 A2d 760, 192 Conn. 671.
8. Fla.-Girardeau v. State, App., 403 So.2d 513, petition for review
dismissed 408 So.2d 1093.
9. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62:
10. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
11. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
336
. L.iJilLU.liiLi
111111.
38A C.J.S.
mes, require-
s by the Fifth
lnd juries are
However, the
mendment re-
al protection.
3
atutory provi-
prosecuted on
rand jury, as
I Informations
I the common
g to the grand
non-law grand
n some states
:onstitutionally
'f required, the
i The legisla-
lr grand juries
ttl requirement
lury system is
mination of a
mes does not
Ltes have prac-
s by allowing,
11 prosecutions
t the interven-
that a grand
tlg officers will
;hat, generally
a grand jury is
useless
F.Supp. 199 .
. 1304.
'ari denied 100 S.Ct.
2.
Angeles County, 57
>tate of Nev., In and
. 208.
i4 ill.Dec. 787, 109
, granted in part U.S.
tabeas corpus denied
::Onn.671.
3, petition for review
62:
. 62 .
. 62.
.....
38A C.J.S.
piece of legal machinery,12 there being seldom any
reason for invoking the cumbersome proceeding
before it where prosecuting officers are willing to
act.
13
In some states matters pertaining to the grand
jury are purely statutory and not controlled by the
common law.
14
Statutes governing the grand jury process should
be strictly construed and compliance therewith me-
ticulously observed.
15
The legislature may apply
procedural reforms retroactively so as to invalidate
preexisting grand juries.t6 Once a grand jury pro-
. cess is established by the legislature, the imple-
mentation becomes a judicial administrative re-
sponsibility.17
§ 6. Authority of Courts to Convene Grand Ju-
ries
A court may have either express or implied constitutional
or statutory authority to convene a grand jury, it having implied
authority when it is invested with jurisdiction of criminal of-
fenses which can be prosecuted only on indictment or present-
ment of a grand jury.
Library References
Grand Jury 20.
At common law the process for summoning a
grand jury was a precept either in the name of the
king or of two or more justices of the peace direct-
ed to the sheriff. This was issued anterior to any
action of the court, the object being to have a grand
jury in attendance at the commencement of the
term.lS The court, however, had power to have a
grand jury summoned during the term, as occasion
might require.
19
12. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
13. Okl.-Blake v. State, 14 P.2d 240, 54 Okl.Cr. 62.
14. La.-State ex reI. De Armas v. Platt, 192 So. 659, 193 La. 928.
15. N.Y.-Matter of June 1982 Grand Jury of Supreme Court of
Rensselaer County, 3 Dept., 471 N.Y.S.2d 378, 98 AD.2d 284.
16. Conn.-State v. Blasko, 522 A2d 753, 202 Conn. 54l.
17. Fla.-State ex reI. Reichle v. Edwards, 409 So.2d 1043.
18. Va.-Curtis v. Commonwealth, 13 S.E. 73, 87 Va. 589.
Commonwealth v. Burton, 4 Leigh 645, 31 Va. 645.
19. Va.-Curtis v. Commonwealth, 13 S.E. 73, 87 Va. 589.
Commonwealth v. Burton, 4 Leigh 645, 31 Va. 645.
20. Neb.-Pinn v. State, 186 N.W. 544, 107 Neb. 417.
Tex.-Robinson v. State, 274 S.W. 137, 100 Tex.Cr. 424.
Legislative power
The constitution imposes no restraint on power of legislature to
determine when, under what circumstances, and how a grand jury may
be summoned .
GRAND JURIES § 6
In the United States, while effect is accorded
constitutional and statutory provisions relating to
the convening of grand juries by COurts,20 courts
invested with jurisdiction of criminal offenses,
which can be prosecuted only on indictment or
presentment of a grand jury, possess the power of
summoning and impaneling grand juries apart from
any express statutory authorization,21 the power
being inferred as necessary and incidental to the
discharge of the duty enjoined on the court in
connection with the prosecution of offenses.
22
Fed-
eral courts possess the inherent power to convene
grand juries when they are necessary to satisfy the
Fifth Amendment.23 However, a grand jury cannot
be impaneled by a court of the United States by
virtue simply of its organization as a judicial tribu-
nal.
24
A court having no jurisdiction of criminal of-
fenses has no jurisdiction to summon a grand
jury; 25 and the same is true of courts whose
criminal jurisdiction is so limited as not to require
the instrumentality of a grand jury in order to
discharge their duties fully.26
A special judge who has failed to take oath as
prescribed by the constitution is without authority
to organize and impanel a grand jury.27
A court is held to be without power to set a
grand jury investigation in motion unless the court
has reasonable cause to believe that the investiga-
tion will disclose some criminal misconduct which is
within its jurisdiction to punish.
2s
A grand jury is presumed to be legally constitut-
ed.
29
ill.-People v. Grizzel, 46 N.E.2d 78, 382 ill. ll-People ex reI. Ferrill
v. Graydon, 164 N.E. 832, 333 ill. 429.
21. Colo.-Williams v. People, 103 P. 298, 46 Colo. 183.
22. ill.-Miller v. People, 56 N.E. 60, 183 ill. 423.
23. U.S.-U.S. v. Christian, C.A.3, 660 F.2d 892.
24. U.S.-In re Mills, Ark., 10 S.Ct. 762, 135 U.S. 263, 34 L.Ed. 107 .
25. Me.-State v. Doherty, 60 Me. 504.
26. Mich.-Jasnowski v. Connolly, 163 N.W. 910, 197 Mich. 257.
27. Tex.-Enloe v. State, 150 S.W.2d 1039, 141 602.
28. Pa.-Petition of McNair, 187 A 498, 324 Pa. 48, 106 AL.R. 1373.
29. Iowa-State v. Panlsen, 286 N.W.2d 157.
337
Ii c-lllllltlll:III1111III •• III, .. m .
§ 6 GRAND JURIES
Federal rules of criminal procedure.
Under the Federal Rules of Criminal Procedure,
the court shall order one or more grand juries to be
summoned at such time as the public interest re-
quires.
30
§ 7. -- Special or Emergency Grand Juries
a. In general
b. Federal special grand jury
a. In General
A special grand jury may be called by the court under a
valid and applicable statute conferring authority to do so or, in
some situations, apart from statutory authorization. A grand
jury may be procured by order of court where there has been a
failure to procure a jury in the manner prescribed by law.
Library References
Grand Jury e->1, 10,20.
Under statutes so providing, a grand jury may
be procured by order of court where, from a speci-
fied cause or any other cause, there has been a
failure to procure a jury in the manner prescribed
by law; 31 and apart from any express statutory
provision it has been held that this power may be
exercised by a court invested by the constitution
with original jurisdiction of criminal cases.
32
30. Fed.Rules Cr.Proc., Rule 6(a)(l), 18 U.S.CA.
31. Ala.-Burgess v. State, 42 So. 681, 148 Ala. 654.
32. Ark.-Straughan v. State, 16 Ark. 37.
33. Ark.-Sutton v. State, 260 S.W. 409, 163 Ark. 562.
Ky.-Sowders v. Commonwealth, 248 S.W. 187, 197 Ky. 834.
Court has discretion
Idaho-Parsons v. Idaho State Tax Com'n, Dept. of Revenue and
Taxation, App., 716 P.2d 1344, 110 Idaho 572.
Finding of necessity
Formal finding of necessity is not necessary to empanel grand jury
pursuant to statute, which grants authority to district court to call
grand jury in its discretion if court believes one is "necessary"; district
court need not take evidence or seek advice conceruing propriety of
calling grand jury.
Wyo.-Hennigan v. State, 746 P.2d 360.
Additional grand jury
(1) Under proper couditions a circuit judge may empanel an addi-
tional grand jury to function concurrently with a regularly empaneled
grand jury.
Ky.-Board of Ed. of Jefferson County v. Nicholson, 551 S.W.2d l.
(2) Though motion and supporting affidavit requesting empaneling
of special grand jury need not set forth in detail evidence on which
Commonwealth's attorney may rely, there must be at least an allega-
tion of conduct which would constitute reasonable grounds to believe
that a grand jury investigation will disclose criminal activity within
38A C.J.S.
A special grand jury may be called in pursuance
of authority conferred by a valid and applicable
statute,33 such as a statute authorizing the ordering
or summoning of a special grand jury whenever the
judge is of opinion that justice requires it,34 or a
motion to set aside an indictment is sustained after
the regular grand jury has been discharged,35 or
where the regular grand jury has been discharged
during the term.
36
Under some statutes, the ques-
tion of the necessity of a special grand jury after
the discharge of the regular jury is left to the
discretion of the COurt.
37
So aside from statute the
rule is generally laid down that it is competent for
a court to summon and impanel a special grand
jury whenever, after the discharge of the regular
jury, it is deemed necessary for the administration
of public justice.
38
If the regular grand jury has been illegally im-
paneled at the beginning of the term it is compe-
tent for the court, unless restricted by statute, to
discharge it at any time during the term, and
impanel another.39 Statutes sometimes expressly
confer such authority.40 However, unless permit-
ted by statute,41 the disquaIification of certain
members of a grand jury does not authorize the
discharge of the entire grand jury and the sum-
moning and impaneling of another, although the
withdrawal of the disquaIified jurors would reduce
apparent that the regular grand jury is, for reasons beyond its control,
unable to adequately function.
Ky.-Board of Ed. of Jefferson County v. Nicholson, 551 S. W.2d l.
(3) Under statute providing that grand jury may be selected as often
as public interest may require, county may empanel as many grand
juries as are necessary to deal with volume of criminal activity.
Nev.-Lera v. Sheriff, Clark County, 568 P.2d 581, 93 Nev. 498.
Multicounty grand jury
Purpose of statute authorizing supreme court to convene multicoun-
ty, investigating grand juries is to enhance ability of commonwealth to
inquire into criminal activity or public corruption reaching into several
counties.
Pa.-Commonwealth v. Bradfield, 508 A2d 568, 352 Pa.Super. 466,
appeal deuied 520 A2d 1384, 513 Pa. 633.
34. 1lI.-People v. Grizzel, 46 N.E.2d 78, 382 1lI. 11-People ex reI.
Ferrill v. Graydon, 164 N.E. 832, 333 1lI. 429-People v. Bush, 133
N.E. 201, 300 1lI. 532.
35. Ark.-Sutton v. State, 260 S.W. 409, 163 Ark. 562.
36. Mo.-State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App.
759.
37. Mo.-State ex reI. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App.
759.
38. Colo.-Mackey v. People, 2 Colo. 13.
39. Va.-Litton v. Commonwealth, 44 S.E. 923, 101 Va. 833.
40. Iowa-State v. Von Kutzleben, 113 N.W. 484, 136 Iowa 89.
court's jurisdiction to punish; in addition, the papers must make it 41. Cal.-People v. Manahan, 32 C. 68.
338
J.J.S.
'Suance
)licable
rdering
ver the
:14 or a
after
or

e ques-
"Y after
to the
;ute the
oont for
I grand
regular
stration
ally im-
compe-
Ltute, to
"Ill, and
qlressly
permit-
certain
rize the
he sum-
ugh the
I reduce
its control,
W.2d 1.
ted as often
nany grand
lal activity.
498.
, multicoun-
lonwealth to
into several
.Super. 466,
:ople ex reI.
Bush, 133
29 Mo.App.
:29 Mo.App.
!33.
lIa89.
38A C.J.S.
the panel below the number required by law.42
The disqualified jurors should be dismissed and
their places supplied,43 especially where a statute
expressly so provides.
44
Where the authority of a court to order a special
venire is restricted to specified contingencies, it is
essential to its authority to issue a special venire
that the condition contemplated by the statute ex-
ist.45 Constitutional provisions in some states are
deemed to prevent the legislature from authorizing
the impaneling of a special or additional grand jury
to function at the same time and in the same
county with a regular grand jury attending on the
same COurt,46 but in a state wherein there is no
constitutional restraint on the power of the legisla-
ture to determine at what time and under what
circumstances a grand jury may be summoned, and
the legislature has exercised its power by authoriz-
ing an order for a special venire at any time the
judge is of opinion that public justice requires it, a
special grand jury may be impaneled even though a
regular grand jury is in existence and is perform-
ing its duties and functions.
47
Request by prosecuting officer.
A statute requiring, in certain the
empanelment of an investigating grand jury on the
application of a prosecuting officer has been up-
held.
48
42. La.-State v. Furco, 25 So. 951, 51 La.Ann. 1082.
43. Nev.-Eureka County Bank Habeas Corpus Cases, 126 P. 655, 35
Nev. 80, rehearing denied 129 P. 308, 35 Nev. 80.
44. Iowa-State v. Wheeler, 105 N.W. 374, 129 Iowa 100.
45. Ala.-Bailey v. State, 55 So. 601, 172 Ala. 418.
46. R.I.-In re Opinion to the Governor, 4 A2d 487, 62 R.I. 200, 121
AL.R. 806.
47. III.-People ex reI. Ferrill v. Graydon, 164 N.E. 832, 333 ill. 429.
48. Pa.-In re Investigating Grand Jury of Philadelphia County, 415
A2d 17,490 Pa. 31.
When justified
(1) Power to convene a special investigating grand jury is never
exercised except for urgent necessity or where the public interest would
suffer from delay incident to the ordinary forms of law, and upon
satisfaction of criteria established by the supreme court.
Pa.-Commonwealth v. Barger, 375 A2d 756, 249 Pa.Super. 59.
(2) Information to sustain application to empanel grand jury or to
sustain submission notice should support, inter alia, reasonable conclu-
sion of possibility of criminal activity.
Pa.-In re Investigating Grand Jury of Philadelphia County, 415 A2d
17, 490 Pa. 31.
GRAND JURIES § 7
Request by citizens.
Under some constitutional or statutory provi-
sions, a court must convene a grand jury or other-
wise submit a matter to a grand jury upon the
petition of a certain nUmber of persons,49 and must
make an initial determination of the legality of the
proposed inquisition. 50
h. Federal Special Grand Jury
Some federal district courts must order a special grand jury
to be summoned at least once in each period of 18 months.
Each federal district court which is located in a
judicial district containing more than four million
inhabitants or in which the Attorney General, the
Deputy Attorney General, the Associate Attorney
General or,any designated Assistant Attorney Gen-
eral, certifies in writing to the chief judge of the
district that in his judgment a special grand jury is
necessary because of criminal activity in the district
shall order a special grand jury to be summoned at
least once in each period of 18 months unless
another special grand jury is then serving. 51
Whenever the district court determines that the
volume of business of the special grand jury ex-
ceeds the capacity of the grand jury to discharge
its obligations, the district court may order an
additional special grand jury for the district to be
impaneled.
52
such conclusion would not affect the validity of the grand jury but
would warrant only dismissal of any informations.
Pa.-Commonwealth v. Barger, 375 A2d 756, 249 Pa.Super. 59.
Evaluation of request
(1) Under Investigating Grand Jury Act, president judge merely
evaluates facial sufficiency of application to meet "statement" require-
ments of Act, and, in effect, grand juries may be empaneled on
representations of district attorney which satisfy the Act.
Pa.-In re Investigating Grand Jury of Philadelphia County, 415 A2d
17,490 Pa 31.
(2) If challenge is made to statements or allegations of application
to empanel grand jury or of submission notice, supervising judge has
discretion to evaluate and may accept factual affidavit, evidence or
factual representations of district attorney through in camera or, where
appropriate, adversary hearing and determine whether allegations and
statements are adequate in terms of Investigating Grand Jury Act and
were made in good faith, but good faith should not be found unless
statements and allegations were made as result of information, rather
than surmise, which could include tips, rumors or evidence.
Pa.-In re Investigating Grand Jury of Philadelphia County, 415 A2d
17, 490 Pa. 31.
49. N.M.-Cook v. Smith, 834 P.2d 418, 114 N.M. 41.
50. N.M.-Cook v. Smith, 834 P.2d 418, 114 N.M. 41.
51. 18 U.S.C.A § 3331(a).
(3) Special investigating grand jury may be convened to investigate
criminal activity ouly upon reasonable cause to believe that an investi-
gation will disclose some criminal misconduct within jurisdiction of
court to punish; but where such reasonable cause exists, even if it
should be determined by court that no crime was in fact committed,
52. 18 U.S.C.A § 3332(b).
339
§ 8 GRAND JURIES
§ 8. -- Grand Juries for Special Terms
Subject to statutory limitations, if any, a court authorized
to hold a special term has power to convene a grand jury for such
term.
Library References
Grand Jury e;.1.
A court authorized to hold a special term has
power to convene a grand jury for such term 53
under express statutory authority 54 or in the ab7
sence of a statutory limitation.
55
However, the court is bound by any statutory
limitation on its power to call a grand jury to serve
at a special term.
56
§ 9. De Facto Grand Jury or Juror
Authorities differ as to whether there can be a de facto
grand jury.
Library References
Grand Jury e;.1.
There is no such thing as a de facto grand jury in
a federal court. 57
Likewise, some state courts assert that there is
no such thing as a de facto grand jury;58 but other
state courts take a view to the contrary.59 It has
been held that the acts of a de facto grand jury are
valid in the absence of fraud or prejudice.
60
53. N.J.-State v. Bolitho, 136 A 164, 103 N.J.Law 246, affirmed 146
A 927, 104 N.J.Law 446-State v. McDevitt, 87 A 123, 84 N.J.Law
11, affirmed 90 A ']j1,7, 85 NJ.Law 731.
54. Ky.-Sowders v. Commonwealth, 248 S.W. 187, 197 Ky. 834.
Tex.-Lennon v. State, 26 S.W.2d 227, 114 Tex.Cr. 5OD-Hickox v.
State, 253 S.W. 823, 95 Tex.Cr. 173.
55. Cal.-People v. Carabin, 14 C. 438.
56. Tex.-Terrell v. State, 139 S.W.2d 108, 139 Tex.Cr. 130.
57. U.S.-U.S. v. McKay, D.C.Micb., 45 F.Supp. 1007.
58. Tenn.-Roberts v. State, 247 S.W. 101, 147 Tenn. 323.
59. A1aska-State v. Roark, App., 705 P.2d 1274.
Cal.-Ex parte Haymond, 27 P. 859, 91 C. 545-1n re Gannon, 11 P.
240, 69 C. 541.
N.Y.-People v. Petrea, 92 N.Y. 1']j1,.
Wis.-State v. Wescott, 217 N.W. ']j1,3, 194 Wis. 410.
60. Tenn.-State v. McFarland, Cr.App., 638 S.W.2d 416.
61. IlL-People v. Brautigan, 142 N.E. 208, 310 ill. 472.
62. A1aska-State v. Roark, App., 705 P.2d 1274.
Tex.-Howard v. Stale, App. 9 Dist., 704 S.W.2d 575.
63. :U.S.-U.S. v. Sells Engineering, Inc., Cal., 103 S.Ct. 3133, 463
U.S. 418, 77 LEd.2d 743.
Exclusively criminal
Grand jury investigation is not conducted in good faith unless it is
used to conduct investigations that are in their inception exclusively
criminal.
38A C.J.S.
There cannot be a grand jury de facto when
there is a grand jury de jure.
61
It has been held that the de facto officer doctrine
applies to an improperly appointed grand juror.
62
§ 10. Improper Purpose
It is improper to use grand jury proceedings merely to elicit
evidence for use in a civil case or to prepare a pending indictment
for trial.
Research Note
Improper purpose for subpoena is treated infra § 137.
Library References
Grand Jury e;.1, 24-26.
Use of grand jury proceedings merely to elicit
evidence for use in a civil case is improper per se.
63
Government attorneys may not use a grand jury
proceeding to gain advantages in a civil case which
they are not entitled to.
64
It is improper to use a grand jury for the pri-
mary purpose of strengthening the government's
case on a pending indictment or as a substitute for
discovery.65 The government may not utilize a
grand jury for the sole or primary purpose of
gathering evidence for use in a pending trial,66 or of
preparing a pending indictment for trial,67 or of
securing addjtional, postindictment evidence to be
used at trial.
68
However, there appears to be some
authority to the contrary.69 Where no further in-
U.S.-Matter of Grand Jury Proceedings, Miller Brewing Co.,
CA Wis., 687 F.2d 1079, on rehearing 717 F.2d 1136.
64. D.C.-Synanon Church v. U.S., D.C., 579 F.Supp. 967, affirmed
820 F.2d 421, 261 U.S.App.D.C. 13.
65. U.S.-U.S. v. Gibbons, CAOkl., 607 F.2d 1320.
66. U.S.-U.S. v. Phillips, D.C.ill., 577 F.Supp. 879.
67. U.S.-In re Grand Jury Proceedings, CAl(Puerto Rico), 814
F.2d 61-U.S. v. Woods, C.AMich., 544 F.2d 242, certiorari denied
Hurt v. U.S., 97 S.Ct. 787, 429 U.S. 1062, 50 L.Ed.2d 778, Blair v.
U.S., 97 S.Ct. 1652, two cases, 430 U.S. 969, 52 LEd.2d 361,
certiorari denied 97 S.Ct. 1652, 430 U.S. 969, 52 LEd.2d 361,
Jackson v. U.S., 97 S.Ct. 2675, 431 U.S. 954, 53 L.Ed.2d 270 and
Kilpatrick v. U.S., 97 S.Ct. 2675, 431 U.S. 954, 53 L.Ed.2d 270,
rehearing denied 97 S.Ct. 2689, 431 U.S. 960, 53 LEd:2d 279.
U.S. v. Raphael, S.D.N.Y., 786 F.Supp. 355, affirmed U.S. v.
Alegria, 980 F.2d 830.
68. U.S.-U.S. v. Doss, CATenn., 545 F.2d 548, rehearing 563 F.2d
265.
In re Grand Jury Matter No. 86--525-5, E.D.Pa., 689 F.Supp. 454.
N.Y.-People v. Heller, 472 N.Y.S.2d 824, 122 Misc.2d 991.
69. Pa.-Commonwealth v. Lang, 537 A2d 1361, 517 Pa 390.
340
38A C.J.S.
le . facto when
.fficer doctrine
grand juror.
62
19B merely to elicit
ending indictment
nfra § 137.
lerely to elicit
lroper per se.
63
: a grand jury
ivil case which
ry for the pri-
~ government's
1 substitute for
. not utilize a
ry purpose of
ing trial,66 or of
r trial,67 or of
evidence to be
~ a r s to be some
no further in-
filler Brewing Co.,
1136.
120.
79.
.1(Puerto Rico), 814
M2, certiorari denied
L.Ed.2d 778, Blair v.
59, 52 L.Ed.2d 361,
69, 52 L.Ed.2d 361,
53 L.Ed.2d 270 and
154, 53 L.Ed.2d 270,
60, 53 L.Ed;2d 279.
55, affirmed U.S. v.
isc.2d 991.
1,517 Pa. 390.
38A C.J.S.
dictments are contemplated, a grand jury should
not be used to prepare a witness for trial.
70
Where there is a legitimate purpose behind a
grand jury investigation, the proceeding is not im-
proper merely because the government may derive
an incidental benefit not related to such purpose.
71
Furthermore, where a legitimate purpose for a
grand jury investigation predominates, the fact that
the government may derive an· incidental tactical
benefit does not render the proceeding improper}2
The government may continue a grand jury investi-
gation even when the evidence received may also
relate to a pending indictment,73 where obtaining
evidence relevant to the indictment is not the sole
or dominant purpose.
74
The grand jury process may not be used by the
prosecutor solely to conduct his own investigation.
75
Grand juries may not select targets of investiga-
tion out of malice or an intent to harass,76 and may
not be used by the prosecutor to harass witnesses.
77
Grand juries must operate within the limits of the
First Amendment, and may not harass the press
for purposes not of law enforcement but of disrupt-
ing a reporter's relationship with his news
sources.
7S
'78. La.-State v. Johnson, App. 4 Cir., 467 So.2d 47, writ denied 474
So.2d 1301.
71. U.S.-Matter of Grand Jury Proceedings, Miller Brewing Co.,
CA.Wis., 687 F.2d 1079, on rehearing 717 F.2d 1136--U.S. v.
Gibbons, CAOkl., 607 F.2d 1320.
D1.-State of New York v. Wagner, 398 N.E.2d 372, 34 Ill.Dec. 697, 79
Ill.App.3d 369, 12 AL.RAth 761.
'71. D.C.-Brooks v. U.S., 448 A2d 253.
·73. U.S.-In re U.S. Grand Jury Proceedings, Western Dist. of
Louisiana, Cid, CA5(La.), 767 F.2d 1131.
In re Grand Jury Matter No. 86-525-5, E.D.Pa., 689 F.Supp.
454--U.S. v. Phillips, D.e.Ill., 577 F.Supp. 879.
v. Donaudy, 386 N.Y.S.2d 326, 87 Misc.2d 787.
:Wjro.--H)pkins()n v. State, 664 P.2d 43, certiorari denied 104 S.Ct.
908, 78 L.Ed.2d 246.
U.S.-U.S. v. Scott, e.A7(IIl.), 784 F.2d 787, certiorari denied
106 S.Ct. 2257, 476 U.S. 1145, 90 L.Ed.2d 702.
N.J.-State v. Misik, 569 A2d 894, 238 N.J.Super. 367.
U.S.-U.S. v. R. Enterprises, Inc., Va., 111 S.Ct. 722, 498 U.S.
292, 112 L.Ed.2d 795, on remand In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d 229.
U.S.-U.S. v. (Under Seal), CAVa., 714 F.2d 347, certiorari
dismissed Doe v. U.S., 104 S.Ct. 1019, 464 U.S. 978, 78 L.Ed.2d 354.
U.s.-Branzburg v. Hayes, Ky., 92 S.Ct. 2646, 408 U.S, 665, 33
LEd.2d 626, dissenting opinion United States v. Caldwell, 92 S.Ct.
2686, 408 U.S. 665, 33 L.Ed.2d 657.
U.S.-U.S. v. Hyder, CAFla., 732 F.2d 841-U.S. v. Burke,
CA.N.Y., 700 F.2d 70, certiorari denied 104 S.Ct. 72, 464 U.S. 816,
78 L.Ed.2d 85.
GRAND JURIES § 11
§ 11. Impartiality in General
Authorities differ as to whether there is a right to an
unhiased grand jury.
Research Note
Fair cross section requirement is discussed infra §§ 13-19.
Disqualification of grand juror for interest, bias, or prejudice is
considered infra § 27.
Lihrary References
Grand Jury 0=>1, 2*, 15, 20, 26.
A grand jury must be fair, impartial, and unbi-
ased,79 and must remain impartial and free from
the appearance of being disinterested in fundamen-
tal constitutional principles. so The grand jury must
remain free from suspicion and distrust and must
always rest on a plane so high that no criticism can
attach to it.s1 Persons who are investigated by the
grand jury have the right to be free of distrust,
suspicion, and frustration toward the grand jury.S2
However, it has also b e e n ~ held that there is no
right to an unbiased grand jury.83
The fact that the grand jury considering a perju-
ry indictment is the grand jury to which the alleg-
edly perjurious statement was made does not mean
that the jurors are unable to base their decisions on
In re Hunter, D.C.Mo., 520 F.Supp. 1020, affirmed 673 F.2d 211-
U.S. v. Lawson, D.e.Md., 502 F.Supp. 15S-U.S. v. Gold, D.C.Ill.,
470 F.Supp. 1336--U.S. v. Azzarelli Const. Co., D.e.Ill., 459 F.Supp.
146.
Ariz.--Crimmins v. Superior Court, In and For Maricopa County, 668
P.2d 882, 137 Ariz. 39.
Conn.-State v. Simms, 518 A2d 35, 201 Conn. 395.
N.Y.-People v. Hill, 415 N.Y.S.2d 541, 67 AD.2d 427, appeal dis-
missed 408 N.E.2d 678, 50 N.Y.2d 894, 430 N.Y.S.2d 270, motion
denied 432 N.E.2d 137, 55 N.Y.2d 800, 447 N.Y.S.2d 435, reargu-
ment denied 434 N.E.2d 1081, 55 N.Y.2d 1038, 449 N.Y.S2d 1030,
reconsideration denied 434 N.E.2d 267, 55 N.Y.2d 975, 449 N.Y.S.2d
198.
People v. Hussein, 568 N.Y.S.2d 296, 150 Misc.2d 119.
Independent and informed
To render decision free from bias, grand jury must be both indepen-
dent and informed.
U.S.-U.S. v. Law Firm of Zimmerman & Schwartz, P.e., D.Colo., 738
F.Supp. 407.
80. U.S.-In re Layden, D.C.Ill., 446 F.Supp. 53.
81. Miss.-Mosley v. State, 396 So.2d 1015.
82. Miss.-Mosley v. State, 396 So.2d 1015.
83. U.S.-In re BaJistrieri, D.e.Wis., 503 F.Supp. 1112.
Ind.-Averhart v. State, 470 N.E.2d 666, certiorari denied 105 S.Ct.
2051, 471 U.S. 1030, 85 L.Ed.2d 323, dismissal of habeas corpus
affirmed 23 F.3d 410.
Mass.-Commonwealth v. Lewis, 427 N.E.2d 934, 12 Mass.App. 562,
review denied 440 N.E.2d 1173, 385 Mass. 1101.
341
§ 11 GRAND JURIES
the evidence.84 A grand jury may consider an
indictment even if it has heard evidence of ac-
cused's participation in other crimes,85 at least
where the two offenses could properly have been
joined in a single indictment.
86
It has been held
that a grand jury may consider indictment of a
person even if it heard immunized testimony from
such person.
87
However, there is authority to the
contrary.88
§ 12. Compensation of Jurors
·The right of a grand juror to compensation and the amount
thereof is dependent on statutory provisions.
Library References
Grand Jury 0=>14.
38A C.J.S.
The right of a grand juror to compensation and
the amount thereof is dependent on statutory pro-
visions.
89
A member of the grand jury is properly allowed
extra compensation for his services as stenogra-
pher.
90
II. COMPOSITION AND FORMATION
A DISCRIMINATION; FAIR CROSS SECTION
§ 13. In General Library References
A General considerations
b. Fair cross section in general
c. Jury Selection and Service Act in general
a. General Considerations
Purposeful discrimination against an identifiable group in
the selection of grand juries may involve a violation of the
constitutional guaranty of equal protection.
Research Note
Discrimination and fair cross section requirement as affecting
selection of foreman are considered infra· § 55. Objections to
indictment for irregularities in composition of grand jury are
treated in C.J.S. Indictments and Informations § 176.
84. U.S.-U.S.v. Vioieris, D.C.N.Y., 595 F.Supp. 88.
Ariz.-Franzi v. Superior Court of Arizona In and For Pima County,
679 P.2d 1043, 139 Ariz. 556.
N.M.-State v. Watkins, App., 590 P.2d 169, 92 N.M. 470.
Not best practice
Although it would have been better practice not to have sought
perjury and conspiracy to commit perjury indictments from same grand
jury which heard alleged perjury, no reversible error resulted.
Miss.-Smallwood v. State, 584 So.2d 733.
85. Alaska-Bangs v. State, App., 663 P.2d 981.
86. Alaska-Massey v. State, App., 771 P.2d 448.
N.Y.-Go\d v. Booth, 435 N.Y.S.2d 325, 79 AD.2d 1013.
87. N.J.-State v. Maiorana, 573 A2d 475, 240 N.J.Super. 352,
certification denied 604 A2d 601, 127 N.J. 327.
88. U.S.-U.S. v. Hinton, C.AN.Y., 543 F.2d 1002, certiorari denied
Carter v. U.S., 97 S.Ct. 493, 429 U.S. 980, 50 L.Ed.2d 589, Darby v.
U.S., 97 S.Ct. 764, 429 U.S. 1051, 50 L.Ed.2d 767, Bates v. U.S., 97
S.Ct. 796, 429 U.S. 1066, 50 L.Ed.2d 783 and Cameron v. U.S., 97
S.Ct. 1677, 430 U.S. 982, 52 L.Ed.2d 376.
89. Iowa-Park v. Polk County, 261 N.W. 508, 220 Iowa 120.
90. Mich.-People v. Lauder, 46 N.W. 956, 82 Mich. 109.
Grand Jury 0=>2)2, 8, 17.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Guide following; Preface.
Purposeful discrimination against an identifiable
group in the selection of grand juries may involve a
violation of the constitutional guaranty of equal
protection.
91
Such discrimination need not involve
an absolute exclusion, and may involve substantial
underrepresentation of the groUp.92 Purposeful
discrimination is required, and a disproportionate
impact is insufficient.93 The existence of a constitu-
tional violation does not depend upon whether ac-
cused is a member of the group discriminated
91. U.S.-Vasquez v. Hillery, Cal., 106 S.Ct. 617, 474 U.S. 254, 88
L.Ed.2d 598-Oisteneda v. Partida, Tex., 97 S.Ct. 1272, 430 U.S.
482, 51 L.Ed.2d 498---Hernandez v. State of Texas, Tex., 74 S.Ct.
667, 347 U.s. 475, 98 L.Ed. 866.
Ga.-Creamer v. State, 258 S.E.2d 212, 150 Ga.App. 458.
La.-State v. Cage, 337 So.2d 1123.
MO.-State v. Johnson, App., 539 S.W.2d 493, certiorari denied 97
S.Ct. 1558, 430 U.S. 934, 51 L.Ed.2d 779.
N.J.-State v. Dixon, 593 A2d 266, 125 N.J. 223.
Equal protection as affecting constitution of juries in general see c.J.S.
Constitutional Law § 722. Equal protection as affecting grand
juries in general see c.J.S. Constitutional Law § 752.
92. U.S.-Casteneda v. Partida, Texas, Tex., 97 S.Ct. 1272, 430 U.s.
482, 51 L.Ed.2d 498.
N.Y.-People v. Guzman, 457 N.E.2d 1143, 60 N.Y.2d 403, 469
N.Y.S.2d 916, certiorari denied Guzman v. New York, 104 S.Ct.
2155,466 U.S. 951, 80 L.Ed.2d 541.
93. U.S.-Casteneda v. Partida, Texas, Tex., 97 S.Ct. 1272, 430 U.S.
482, 51 L.Ed.2d 498---Akins v. State of Texas, Tex., 65 S.Ct. 1276,
325 U.S. 398, 89 L.Ed.2d 1692, rehearing denied 66 S.Ct. 86, 326
U.S. 806, 90 L.Ed.2d 491.
342
l8A C.J.8.
lensation and
tatutory pro-
:>erly allowed
as stenogra-
'ollowing Preface.
1 identifiable
!lay involve a
lty of equal
I not involve
e substantial
Purposeful
Iroportionate
:>f a constitu-
whether ac-
Iiscrinrinated
474 u.s. 254, 88
_. 1272, 430 U.s.
IS, Tex., 74 S.Ct.

iorari denied 97
leneral C.J.S.
affecting grand
!.
t. 1272, 430 U.S.
1T.Y.2d 403, 469
York, 104 S.Ct.
t. 1272, 430 U.S.
[., 65 S.Ct. 1276,
66 S.Ct. 86, 326
38A C.J.8.
against.94
Racial discrinrination in grand jury selection vio-
lates the equal protection guaranty.95 Once a state
chooses to provide grand juries, it must hew to
federal constitutional criteria in ensuring that the
selection of membership is free of racial bias.
96
The principles that apply to the systematic exclu-
sion of potential jurors on the ground of race are
essentially the same in the case of grand juries as
in the case of petit juries.
97
Accused is entitled to
require that the state not deliberately and system-
atically deny to members of his race the right to
participate as grand jurors in the administration of
justice.
98
Limitation of the number of persons of a
particular race on a grand jury in approxinlate
proportion to the number eligible for grand jury
service violates the equal protection guaranty.99
94. U.S.-Peters v. Kiff, Ga., 92 S.Ct. 2163, 407 U.S. 493, 33 L.Ed.2d
. 83, on remand 491 F.2d 967 (per Mr. Justice Marshall, with two
justices concurring and three justices concurring in the jUdgment).
Standing to assert violation see infra § 19.
selecting juror in same group as accused
Sheriffs looking to match defendant with grand juror of same race
as defendant was not evidence of innocent intent but itself constituted
a conscious effort to establish panel based on racial factors, a practice
as impermissible as systematic exclusion.
U.S.-Villafane v. Manson, D.C.Conn., 504 F.Supp. 78, affirmed 639
F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69 L.Ed.2d
431.
95. U.S.-Tollett v. Henderson, Tenn., 93 S.Ct. 1602, 411 U.S. 258,
36 L.Ed.2d 235-Brown v. Allen, N.C., 73 S.Ct. 397, 344 U.S. 443, 97
L.Ed.2d 469, dissenting opinion Daniels v. Allen, 73 S.Ct. 437, 344
U.S. 443, 97 L.Ed. 469, rehearing denied 73 S.Ct. 827, two cases, 345
U.S. 946, 97 L.Ed. 1370 and Speller v. Allen, 73 S.Ct. 827, 345 U.S.
946, 97 L.Ed. 1370-Akins v. State of Texas, Tex., 65 S.Ct. 1276, 325
U.S. 398, 89 L.Ed. 1692, rehearing denied 66 S.Ct. 86, 326 U.S. 806,
90 L.Ed. 491-Smith v. State of Texas, Tex., 61 S.Ct. 164, 311 U.S.
128, 85 L.Ed. 84, conformed to 147 S.W.2d 1118, 140 Tex.Cr. 565-
Pierre v. State of Louisiana, La., 59 S.Ct. 536, 306 U.S. 354, 83 L.Ed.
757-Norris v. State of Alabama, Ala., 55 S.Ct. 579, 294 U.S. 587, 79
L.Ed.1074.
Neal v. State of Delaware, Del., 103 U.S. 370, 26 L.Ed. 657.
Jefferson v. Morgan, CA6(Tenn.), 962 F.2d 1185, certiorari de-
nied 113 S.Ct. 297, 506 U.S. 905, 121 L.Ed.2d 221.
Tex.-Flores v. State, App.-El Paso, 783 S.W.2d 793.
Racial discrimination as constituting reversible error per se without
showing of prejudice see c.J .S. Criminal Law § 1718.
Violates state statute
U.S.-Williams v. State of Mississippi, CAMiss., 608 F.2d 1021,
appeal dismissed, certiorari denied 101 S.Ct. 49, 449 U.S. 804, 66
L.Ed.2d 8.
96. U.S.--Carter v. Jury Commission of Greene County, Ala., 90
S.Ct. 518, 396 U.S. 320, 24 L.Ed.2d 549.
97. U.S.-Alexander v. Louisiana, La., 92 S.Ct. 1221, 405 U.S. 625,31
L.Ed.2d 536-Pierre v. State of Louisiana, La., 59 S.Ct. 536, 306
U.S. 354, 83 L.Ed. 757.
Equal protection as affecting constitution of juries in general see c.J.S.
Constitutional Law § 722. Equal protection as affecting constitu-
tion of petit juries see c.J.S. Constitutional Law § 770.
GRAND JURIE8 § 13
Even discrinrination designed to obtain a racial
balance is improper.1
Where a state subjects a person to indictment by
a grand jury that has been selected in an arbitrary
and discrinrinatory: manner, in violation of the Con-
stitution and laws of the United States, the state
violates the requirement of due process.
2
h. Fair Cross Section in General
It has been held that, where a grand jury is used, there is a
constitutional right to the selection of the grand jury from a fair
cross section of the community.
It has been held that, where a grand jury is used,
there is a constitutional right to the selection of the
grand jury from a fair cross section of the commu-
nity.3 This right has been held to arise under the
Sixth Amendment right to trial by an impartial
jury/ made applicable to the states by the Four-
98. Alexander v. Louisiana, La., 92 S.Ct. 1221, 405 U.S. 625, 31
L.Ed.2d 536-Eubanks v. State of Louisiana, La., 78 S.Ct. 970, 356
U.S. 584, 2 L.Ed.2d 991-Reece v. State of Georgia, Ga., 76 S.Ct.
167, 350 U.S. 85, 100 L.Ed. 77, rehearing denied 76 S.Ct. 297, 350
U.S. 943, 100 L.Ed. 822, opinion conformed to 91 S.E.2d 29, 212 Ga.--
161-Hernandez v. State of Texas, Tex., 74 S.Ct. 667, 347 U.S. 475,
98 L.Ed. 866-Patton v. State of Mississippi, Miss., 68 S.Ct. 184, 332
U.S. 463, 1 A.L.R2d 1286, 92 L.Ed. 76, mandate conformed to 33
So.2d 456, 203 Miss. 265-Smith v. State of Texas, Tex., 61 S.Ct.
164,311 U.S. 128,85 L.Ed. 84, conformed to 147 S.W.2d 1118, 140
Tex.Cr. 565-Pierre v. State of Louisiana, La., 59 S.Ct. 536, 306 U.S.
354, 83 L.Ed. 757--Carter v. State of Texas, Tex., 20 S.Ct. 687, 177
U.S. 442, 44 L.Ed. 839.
Conn.-State v. Wright, 542 A.2d 299, 207 Conn. 276.
Mo.-State v. Baker, 636 S.W.2d 902, certiorari denied 103 S.Ct. 834,
459 U.S. 1183, 74 L.Ed.2d 1027.
99. U.S.--Cassell v. State of Texas, Tex., 70 S.Ct. 629, 339 U.S. 282,
94 L.Ed. 839.
1. N.J.-State v. Ramseur, 524 A.2d 188, 106 N.J. 123, denial of
habeas corpus affirmed 983 F.2d, certiorari denied 113 S.Ct. 2433,
508 U.S. 947, 124 L.Ed.2d 653.
2. U.S.-Peters v. Kiff, Ga., 92 S.Ct. 2163, 407 U.S. 493, 33 L.Ed.2d
83, on remand 491 F.2d 967 (per Mr. Justice Marshall, with two
justices concurring and three justices concurring in the judgment).
3. U.S.-Machetti v. Linahan, CA. Ga., 679 F.2d 236, certiorari de-
nied 103 S.Ct. 763, 459 U.S. 1127, 74 L.Ed.2d 978--Ciudadanos
Unidos De San Juan v. Hidalgo County Grand Jury Com'rs,
CATex., 622 F.2d 807, certiorari denied 101 S.Ct. 1479, 450 U.S.
964, 67 L.Ed.2d 613.
D.C.-Obregon v. U.S., App., 423 A.2d 200, certiorari denied 101 S.Ct.
3054, 452 U.S. 918, 69 L.Ed.2d 422.
Ky.-Colvin v. Commonwealth, 570 S.W.2d 281.
La.-State v. Lawrence, 351 So.2d 493.
Nev.-Adler v. State, 594 P.2d 725, 95 Nev. 339.
N.J.-State v. Dixon, 593 A.2d 266, 125 N.J. 223.
RI.-State v. Manocchio, 448 A.2d 761, certiorari denied 103 S.Ct.
820,459 U.S. 1173,74 L.Ed.2d 1017.
4. U.S.-U.S. v. Abell, D.C.Me., 552 F.Supp. 316, 68 A.L.RFed.
157-U.S. v. Musto, D.C.N.J., 540 F.Supp. 346, affirmed U.S. v.
Aimone, 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
343
§ 13 GRAND JURIES
teenth Amendment.
5
However, it has also been
held that the Sixth Amendment is inapplicable to
grand juries,6 and that the fair cross section right is
therefore inapplicable to state grand juries.
7
It has
also been held that such a right arises under the
Fourteenth Amendment general requirement of
due process, and is applicable to state grand ju-
ries.
8
Even authorities who hold that such a right
does not arise under the Sixth Amendment hold
that such a right applies in federal prosecutions
and arises under the Fifth Amendment right to an
indictment by a grand jury.9
Some statutes provide a fair cross section re-
quirement.
10
The principles concerning the fair cross section
requirement applicable to petit juries, discussed in
C.J.S. Constitutional Law § 1067 and C.J.S. Juries
§ 124, have been held to apply likewise to grand
juries.
ll
The fair cross section right is not entirely
3585,468 u.s. 1217, !!2 L.Ed.2d 883 and 104 S.Ct. 3586, 468 u.s.
1217, 82 L.Ed.2d 883-U.S. v. Hanson, D.C.Minn., 472 F.Supp.
1049, affirmed 618 F.2d 1261, certiorari denied 101 S.Ct 148, 449
U.S. 854, 66 L.Ed.2d 67.
5. Ohio-State v. Puente, 431 N.E.2d 987, 69 Ohio St2d 136, 23
O.O.3d 178, certiorari denied 102 S.Ct. 2910, 457 U.S. 1109, 73
L.Ed.2d 1318.
6. Ariz.-State v. Acosta, App., 608 P.2d 83, 125 Ariz. 146.
Mass.-Commonwealth v. Bastarache, 414 N.E.2d 984, 382 Mass. 86.
7. Ariz.-State v. Acosta, App., 608 P.2d 83, 125 Ariz. 146.
8. N.Y.-People v. Guzman, 457 N.E.2d 1143, 60 N.Y.2d 403, 469
N.Y.S.2d 916, certiorari denied Guzman v. New York, 104 S.Ct.
2155, 466 U.S. 951, 80 L.Ed.2d 541.
9. D.C.-Obregon v. U.S., App., 423 A2d 200, certiorari denied 101
S.Ct. 3054, 452 U.S. 918, 69 L.Ed.2d 422.
10. Ga.-Devier v. State, 300 S.E.2d 490, 250 Ga. 652, appeal after
remand 323 S.E.2d 150, 253 Ga. 604, certiorari denied 105 S.Ct.
1877,471 U.S. 1009, 85 L.Ed.2d 169.
lL D.C.-Obregon v. U.S., App., 423 A2d 200, certiorari denied 101
S.Ct. 3054, 452 U.S. 918, 69 L.Ed.2d 422.
Ky.-Commonwealth v. McFerron, 680 S.W.2d 924.
12. Ga-Parks v. State, 330 S.E.2d 686, 254 Ga. 403, 62 AL.R.4th
833.
DitJerence
(1) In equal protection matters, focus is on purposeful discrimina-
tion while in fair cross section cases, focus is not on discriminatory
conduct but instead is on whether jury selection system is impartial and
will yield m i c r o c o ~ m of community which can fairly represent views of
all persons within society.
U.S.-U.S. v. Musto, D.C.N.J., 540 F.Supp. 346, affirmed U.S. v.
Aimone, 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
3585, 468 U.S. 1217, 82 L.Ed.2d 883 and 104 S.Ct 3586, 468 U.S.
1217, 82 L.Ed.2d 883.
(2) Standards under the fair cross section requirements for grand
jury and the equal protection clause differs somewhat in that fair cross
section distinctiveness encompasses the broader principle that jury
should be drawn from a source fairly representative of the community,
whereas equal protection focuses upon classes which have historically
38A C.J.S.
analogous to the right of equal protection!2 It has
been held that a violation does not require intent,t3
or bad faith!4 However, it should be noted that
the due process requirement is not implicated by a
negligent act causing an unintended loss of liberty,
as discussed in C.J.S. Constitutional Law § 977.
The test under the Sixth Amendment is the same
as that under the Jury Selection and Service Act. 15
c. Jury Selection and Service Act in Gener-
al
Under the Jury Selection and Service Act, in federal court
there is a right to grand juries selected at random from a fair
cross section of the community.
Under the Jury Selection and Service Act, it is
the policy of the United States that all litigants in
federalcourl entitled to trial by jury shall have the
right to grand juries selected at random from a fair
cross section of the community in the district or
been discriminatorily excluded or substantially underrepresented based
on race or national origin.
N.Y.-People v. Guzman, 454 N.Y.S.2d 852, 89 AD.2d 14, affirmed
457 N.E.2d 1143, 60 N.Y.2d 403, 469 N.Y.S.2d 916 certiorari denied
Guzman v. New York, 104 S.Ct. 2155, 466 U.S. 951, 80 L.Ed.2d 541.
13. U.S.-U.S. v. Donohue, D.C.Md, 574 F.Supp. 1269-U.S. v.
Musto, D.C.N.Y., 540 F.Supp. 346, affirmed U.S. v. Aimone, 715
F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct. 3585, 468 U.S.
1217,82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S. 1217, 82 L.Ed.2d
883-Villafane v. Manson, D.C.Conn., 504 F.Supp. 78, affirmed 639
F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69 L.Ed.2d
431.
Conn.-State v. Castonguay, 481 A2d 56,194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
Statnte
Ga.-Devier v. State, 300 S.E.2d 490, 250 Ga. 652, appeal after
remand 323 S.E.2d 150, 253 Ga. 604, certiorari denied 105 S.Ct.
1877, 471 U.S. 1009, 85 L.Ed.2d 169.
N.J.-State v. Long, 499 A2d 264, 204 N.J.Super. 469.
14. U.S.-U.S. v. Musto, 540 F.Supp. 346, affirmed U.S. v. Aimone,
D.C.N.Y., 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
3585,468 U.S. 1217,82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S.
1217,82 L.Ed.2d 883.
N.J.-State v. Porro, 377 A2d 950, 152 NJ.Super. 259, affirmed 385
A2d 1258, 158 N.J.Super. 269, certiorari denied 99 S.Ct. 724, 439
U.S. 1047, 58 L.Ed2d 706.
15. U.S.-U.S. v. Miller, C.A.9(Idaho), 771 F.2d 1219.
Purpose
Purpose of fair cross section protection is to provide criminal
defendant with grand juries which are microcosms of community.
U.S.-U.S. v. Perez-Hernandez, C.A.Fla., 672 F.2d 1380.
Community
The term "community" is a term of art referring to total populace of
division or district wherein court convenes and not to a particular city
or municipality within division or district.
U.S.-Jeffers v. U.s., D.C.Ind., 451 F.Supp. 1338.
344
38A C.J.S.
It has
'equire intent,13
be noted that
implicated by a
loss of liberty,
tal Law § 977.
mt is the same
:l Service Act.
15
Act in Gener-
lCt, in federal court
from a fair
Act, it is
t all litigants in
y shall have the
.dom from a fair
the district or
lderrepresented based
I AD.2d 14, affirmed
I 916 certiorari denied
:.951,80 L.Ed.2d 541.
'.Supp. 1269-U.S. v.
U.S. v. Aimone, 715
4 S.Ct. 3585, 468 U.S.
U.S. 1217,82 L.Ed.2d
)Upp. 78, affirmed 639
U.S. 930, 69 L.Ed.2d
:<Jnn. 416, appeal after
}a. 652, appeal after
)rari denied 105 S.Ct.
r.469.
inned U.S. v. Aimone,
ntico v. U.S., 104 S.Ct.
4 S.Ct. 3586, 468 U.S.
Lper. 259, affirmed 385
nied 99 S.Ct. 724, 439
!Ii 1219.
is to provide criminal
ocosms of community.
'.2d 1380.
ring to total populace of
not to a particular city
18.
38A C.J.S.
division wherein the court convenes,16 and that all
citizens shall have the opportunity to be considered
for service on grand juries in the district courts of
the United StateS.
17
No citizen shall be excluded
from service as a grand juror in the district courts
of the United States on account. of race, color,
religion, sex, national origin, or economic status.
1S
The Act embodies two important general princi-
ples: random selection, and determination of dis-
qualifications, excuses, exemptions, and exclusions
upon the basis of objective criteria only.19
Even if the Sixth Amendment is inapplicable to
grand juries, the Act extends the Sixth Amendment
fair cross section requirement to federal grand
16. 28 U.S.CA § 1861.
17. 28 U.S.CA § 1861.
18. 28 U.S.CA § 1862 .
19. U.S.-U.S. v. Butts, D.C.Fla., 514 F.Supp. 1225.
20. U.S.-U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269.
21. U.S.-U.S. v. Miller, CA9(Idaho), 771 F.2d 1219.
U.S. v. Musto, D.C.NJ., 540 F.Supp. 346, affirmed U.S. v. Ai-
mone, 715 F.2dil22, certiorari denied Dentico v. U.S., 104 S.Ct ..
3585,468 U.S. 1217, 82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S.
1217, 82 L.Ed.2d 883.
22. U.S.-Villafane v. Manson, D.C.Conn., 504 F.Supp. 78, affirmed
639 F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69
L.Ed.2d 431.
23. 28 U.S.CA § 1867.
Prejudice unnecessary
U.S.-U.S. v. Caron, D.C.Va., 551 F.Supp. 662, affirmed 722 F.2d 739,
certiorari denied 104 S.Ct. 1602, 465 U.S. 1103, 80 L.Ed.2d 132-
U.S. v. Coleman, D.C.Mich., 429 F.Supp. 792.
Grand jury not nullity
Selection of Grand Jury in substantial noncompliance with Act does
not mean that grand jury was a "nullity" having no authority to do
anything. .
U.S.-U.S. v. Caron, D.C.Va., 551 F.Supp. 662, affirmed 722 F.2d 739,
certiorari denied 104 S.Ct. 1602, 465 U.S. 1103, 80 L.Ed.2d 132.
24. U.S.-U.S. v. Bearden, CA. Ga., 659 F.2d 590, certiorari denied
Northside Realty Associates, inc. v. U.S., 102 S.Ct. 1993, 456 U.S.
936, 72 L.Ed.2d 456 and Browning-Ferris industries of Georgia, inc.
v. U.S., 102 S.Ct. 1993, 456 U.S. 936, 72 L.Ed.2d 456, on remand 555
F.Supp. 595.
Violation of plan
A substantial violation of district plan for grand jury selection is
equally a substantial violation of the Jury Selection and Service Act.
U.S.-U.S. v. Coleman, D.C.Mich., 429 F.Supp. 792.
25. U.S.-U.S. v. Savides, C.Al(Mass.), 787 F.2d 751-U.S. v. Greg-
ory, C:A:Ala., 730 F.2d 692, rehearing denied 740 F.2d 979, certiora-
ri denied 105 S.Ct. 1170, 469 U.S. 1208, 84 L.Ed.2d 321, certiorari
denied Spurlock v. U.S., 105 S.Ct. 1171,469 U.S. 1208, 84 L.Ed.2d
321-U.S. v. Schmidt, CATex., 711 F.2d 595, rehearing denied 716
F.2d 901, certiorari denied 104 S.Ct. 705, 464 U.S. 1041, 79 L.Ed.2d
169.
26. U.S.-U.S. v. Brummitt, C.ATex., 665 F.2d 521, certiorari denied
102 S.Ct. 2244, 456 U.S. 977, 72 L.Ed.2d 852.
U.S. v. Butts, D.C.Fla., 514 F.Supp. 1225-U.S. v. Tarnowski,
D.C.Mich., 429 F.Supp. 783.
GRAND JURIES § 13
juries.
2o
The test under the fair cross section
requirement of the Act. is the same as the one
under the Sixth Amendment.
21
A violation does
not require intent.
22
Relief will be provided where there is a substan-
tial failure to comply with the provisions of the
Act.23 A violation must be substantial,24 and a
technical deviation is insufficient.25 In determining
whether a violation is substantial, the goals of the
Act must be considered.
26
A violation is substantial
only if it contravenes the principles of random
selection or objective criteria.
27
Various violations
have been held not
Qnantitative and qualitative analysis
in determining wrongful exclusion of potential jurors results
in substantial violation of Act, quantitative and qualitative analysis is
undertaken: quantitatively, a substantial violation generally will not be
found' if number of errors is small; qualitatively, inquiry is whether
there has been frustration of Act's underlying principle of exclusions
on basis of objective criteria only. .
U.S.-U.S. v. Bearden, 659 F.2d 590, certiorari denied Northside
Realty Associates, inc. v. U.S., CAGa., 102 S.Ct. 1993, 456 U.S.
936, 72 L.Ed.2d 456 and Browning-Ferris industries of Georgia, Inc.
v. U.S., 102 S.Ct. 1993, 456 U.S. 936, 72 L.Ed.2d 456, on remand 555
F.Supp. 595.
Violation of plan
(1) When violation of a local plan for selection of grand jurors is
alleged, court looks to see if any of policies of statute governing grand
jury selection were frustrated therefrom.
U.S.-U.S. v. Schmidt, CATex., 711 F.2d 595, rehearing denied 716
F.2d 901, certiorari denied 104 S.Ct.705, 464 U.S. 1041, 79 L.Ed.2d
169.
(2) Grand jury selection plan can only be considered a supplement
to the plan and does not replace the Act and a defendant must show
that the basic purposes of the Act have been subverted by failure to
follow requirements of plan.
U.S.-U.S. v. Tarnowski, D.C.Mich., 429 F.Supp. 783.
27. U.S.-U.S. v. Savides, CAl(Mass.), 787 F.2d 751-U.S. v. Greg-
ory, C.AAla., 730 F.2d 692, rehearing denied 740 F.2d 979, certiora-
ri denied 105 S.Ct. 1170, 469 U.S. 1208, 84 L.Ed.2d 321, certiorari
denied Spurlock v. U.S., 105 S.Ct. 1171, 469 U.S. 1208,84 L.Ed.2d
321.
Otherwise technical violations
Otherwise technical violations constitute "substantial failure to com-
ply" when they affect random nature or objectivity of selection process.
U.S.-U.S. v. Butts, D.C.Fla., 514 F.Supp. 1225.
Exclusion necessary
Absent showing that some cognizable group was excluded from jury
selection process, no substantial violation of Act will lie.
U.S.-U.S. v. Butts, D.C.Fla., 514 F.Supp. 1225.
28. Misinterpretation or misapplication
Mere misinterpretation or misapplication by jury clerk's office of
objective criteria contemplated by Act does not violate objectivity
principle, in absence of discriminatory potential or effect.
U.S.-U.S. v. Bearden, CAGa., 659 F.2d 590, certiorari denied North-
side Realty Associates, Inc. v. U.S., 102 S.Ct. 1993, 456 U.S. 936, 72
345
§ 14 GRAND JURIES
§ 14. Right to Particular Composition
Accused has no right to a grand jury of any particular
demographic composition. The grand jury need not be a mirror
of the community.
Library References
Grand Jury 0:>2*,17.
Accused has no right to a grand jury of any
particular demographic composition 29 or racial
composition, 30 or a grand jury composed only of
individuals who have interests or occupations simi-
lar to those of accused.
31
Accused cannot demand
that members of any particular race be included on
the grand jury,32 and cannot claim as a matter of
right that his race shall have representation on the
grand jury.33
The venire need not be a mirror of the communi-
ty.34 The grand jury need not be a mirror of the
community 35 or a fair cross section of the commu-
nity.36 Under the Jury Selection and Service Act,
it is the master jury wheel, and not the actual
grand jury, which must represent a fair cross sec-
tion of the community.37 The equal protection
guaranty does not require proportional representa-
L.Ed.2d 456 and Browning-Ferris Industries of Georgia, Inc. v. U.S.,
102 S.Ct. 1993, 456 U.S. 936, 72 L.Ed.2d 456, on remand 555
F.Supp. 595.
Public notice
Jury clerk's failure to comply with requirement of public notice
before and after each drawing of starting numbers from jury wheel, in
violation of local plan and Jury Selection and Service Act, did not
constitute substantial violation of the Act, where starting number
methods did not substantially affect randomness or objectivity of
selection process.
U.S.-U.S. v. Bearden, CAGa, 659 F.2d 590, certiorari denied North-
side Realty Associates, Inc. v. U.S., 102 S.Ct. 1993, 456 U.S. 936, 72
L.Ed.2d 456 and Browning-Ferris Industries of Georgia, Inc. v. U.S.,
102 S.Ct. 1993, 456 U.S. 936, 72 L.Ed.2d 456, on remand 555
F.Supp. 595.
Time
Time is not of the essence of the Jury Selection and Service Act
which requires that grand jury selection plan must provide for periodic
emptying and refilling of the master jury wheel the interval for which
shall not exceed four years.
U.S.-U.S. v. Tarnowski, D.C.Mich., 429 F.Supp. 783.
29. U.S.-U.S. v. Test, CAColo., 550 F.2d 577.
U.S. v. Guoladdle, D.C.Okl., 496 F.Supp. 337.
30. U.S.-Stewart v. Ricketts, D.C.Ga., 451 F.Supp. 91l.
31. N.y.-PeOple v. Mulroy, 439 N.Y.S.2d 61, 108 Misc.2d 907.
32. Fla.-Bryant v. State, 386 So.2d 237.
33. U.S.-Alexander v. Louisiana, La., 92 S.Ct. 1221, 405 U.S. 625,31
L.Ed.2d 536-Akins v. State of Tex., Tex., 65 S.Ct. 1276, 325 U.S.
398, 89 L.Ed. 1692, rehearing denied 66 S.Ct. 86, 326 U.S. 806, 90
L.Ed.49l.
Neal v. State of Delaware, Del., 103 U.S. 370,26 L.Ed. 567.
34. U.S.-U.S. v. Gregory, C.AAia., 730 F.2d 692, rehearing denied
740 F.2d 979; certiorari denied 105 S.Ct. 1170, 469 U.S. 1208, 84
38A C.J.S.
tion of all the component ethnic groups of the
community on every grand jury.3S Fairness in
selection does not require proportional representa-
tion of races; 39 there is no requirement of precise
proportional representation of any particular group
on the grand jury.40 Every identifiable class or
race need not be represented on the grand jury.41
§ 15. Showing of Violation
a. In general
b. Fair cross section
a. In General
Accused establishes a prima facie case of an equal protec-
tion violation in grand jury selection by showing substantial
underrepresentation of an identifiable group and a selection pro-
cedure that is susceptible to abuse or is not neutral. If a prima
facie case is established, the burden shifts to the government to
rebut the presumption of discnmination.
Library References
Grand Jury 0:>2*, 8, 17.
Generally, in order to show that an equal protec-
tion violation has occurred in the context of grand
L.Ed.2d 321, certiorari denied Spurlock v. U.S., 105 S.Ct. 1171, 469
U.S. 1208, 84 L.Ed.2d 32l.
Ill.-People v. Teller, 359 N.E.2d 803, 3 Ill.Dec. 944, 45 IllApp.3d 410.
35. U.S.-U.S. v. Gregory, C.A.Ala., 730 F.2d 692, rehearing denied
740 F.2d 979, certiorari denied 105 S.Ct. 1170, 469 U.S. 1208, 84
L.Ed.2d 321, certiorari denied Spurlock v. U.s., 105 S.Ct. 1171,469
U.S. 1208, 84 L.Ed.2d 321.
Conn.-State v. Wright, 542 A.2d 299, 207 Conn. 276.
Ill.-People v. Teller, 359 N.E.2d 803, 3 Ill.Dec. 944, 45 Ill.App.3d 410.
La.-State v. Lawrence, 351 So.2d 493.
Mo.-State v. Stewart, App., 714 S.W.2d 724.
N.J.-State v. Ramseur, 524 A.2d 188, 106 N.J. 123, denial of habeas
corpus affirmed 983 F.2d 1215, certiorari denied 113 S.Ct. 2433, 508
U.S. 947, 124 L.Ed.2d 653:
36. U.S.-U.S. v. Gibson, D.C.Ohio, 480 F.Supp. 339.
Ga.-Campbell v. State, 240 S.E.2d 828, 240 Ga. 352, certiorari denied
99 S.Ct. 218, 439 U.S. 882, 58 L.Ed.2d 194.
37. U.S.-U.S. v. Percival, CA7(Ill.), 756 F.2d 600.
Geographic representation
U.S.-U.S. v. Gregory, CAAla., 730 F.2d 692, rehearing denied 740
F.2d 979, certiorari denied 105 S.Ct. 1170, 469 U.S. 1208, 84 L.Ed.2d
321, certiorari denied Spurlock v. U.S., 105 S.Ct. 1171, 469 U.S.
1208, 84 L.Ed.2d 32l.
38. U.S.-Hernandez v. State of Texas, Tex., 74 S.Ct. 667, 347 U.S.
475, 98 L.Ed. 866.
39. U.S.-Akins v. State of Texas, Tex., 65 S.Ct. 1276, 325 U.S. 398,
89 L.Ed. 1692, rehearing denied 66 S.Ct. 86, 326 U.S. 806, 90 L.Ed.
49l.
Fla.-Andrews v. State, 443 So.2d 78.
40. U.S.-U.s. v. Ramos Colon, D.C.Puerto Rico, 415 F.Supp. 459.
41. Conn.-State v. Avcollie, 453 A.2d 418, 188 Conn. 626, certiorari
denied 103 S.Ct. 2088, 461 U.S. 928, 77 L.Ed.2d 299.
346
C.J.S.
ps of the
rirness in

of precise
liar group
class or
md jury.41
equal protec-
g. substantial
selection pro-
I. ITa prima
overnment to
ual protec-
ct. of grand
5.Ct. 1171, 469
Ill.App.3d 410.
:hearing denied
, U.S. 1208, 84
S.Ct. 1171,469
Ill.App.3d 410.
lenial of babeas
S.Ct. 2433, 508
:ertiorari denied
ring denied 740
.208, 84 L.Ed.2d
1171, 469 U.S.
:to 667, 347 U.S.
'6, 325 U.S. 398,
S. 806, 90 L.Ed.
5 F.Supp. 459.
n. 626, certiorari
38A C.J.S.
jury selection, accused must show that the proce-
dure employed resulted in substantial underrepre-
sentation of an identifiable groUp.42 The first step
is to establish that the group is one that is a
recognizable, distinct class, singled out for different
treatment under the laws, as written or as ap-
plied.
43
Next, the degree of underrepresentation
must be proved, by comparing the proportion of the
group in the total population to the proportion
called to serve as grand jurors, over a significant
period of time.
44
Purposeful discrimination is not
proven by showing that on a single grand jury the
42. U.S.-Castaneda V. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
43. U.S.-Castaneda V. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
44. U.S.-Castaneda V. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
Population
(1) Only consider eligIble popnlation.
U.S.-Newman V. Henderson, C.ALa., 539 F.2d 502, rehearing denied
544 F.2d 518, certiorari denied Maggio V. Newman, 97 S.Ct. 2986,
433 U.S. 914, 53 L.Ed.2d 1100.
Ky.-Ford V. Commonwealth, 665 S.W.2d 304, certiorari denied 105
S.Ct. 392, 469 U.S. 984, 83 L.Ed.2d 325.
(2) Proof of discrimination in grand jury selection process shonld be
based on eligIble popnlation statistics rather than gross popnlation
statistics, but once defendant established the underrepresentation. of
his class over a significant period of time by use of the gross population
statistics, thereby evidencing prima facie case of discriminatory pur-
pose, State had the burden to rebut the case.
Tex.-Cerda V. State, App. 7 Dist., 644 S.W.2d 875.
(3) Whether a significant disparity exists between percentages of
blacks found present in the source of jury list and those actually
appearing on grand jury panel is determined by the difference between
the percentage of blacks on the grand jury list and the percentage in
the population as a whole and not the percentage of blacks on the
traverse jury list.
Ga.-Cochran V. State, 260 S.E.2d 391, 151 Ga.App. 478, appeal after
remand 271 S.E.2d 864, 155 Ga.App.418.
Period
Period of two years of random sampling of jury panels on which
defendant based his statistical data to establish racial discrimination in
method of sele.ction of grand jurors was not "period of significance,"
such as would satisfy guidelines set out in federal cases for establishing
prima facie case.
Ky.-Ford V. Commonwealth, 665 S.W.2d 304, certiorari denied 105
S.Ct. 392, 469 U.S. 984, 83 L.Ed.2d 325.
Statistics
(1) Under some circumstances, statistics alone can establish such
clear pattern of discrimination in grand jury selection that they cannot
be explained on any legitimate grounds, and when this occurs, the
statistics may amount to circumstantial evidence sufficient to satisfy
intent requirement, but how clear such pattern must be appears to vary
with nature of the case.
U.S.-Villafane V. Manson, D.C.Conn., 504 F.Supp. 78, affirmed 639
F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69 L.Ed.2d
431.
GRAND JURIES
number of members of one race was less than that
race's proportion of eligible individuals.
45
A selec-
tion procedure that is susceptible of abuse or is not
neutral supports the presumption of discrimination
raised by the statistical showing.,46 While it has
been said that, once accused has shown substantial
underrepresentation, he has made out a prima facie
case of discriminatory purpose,47 it has also been
held that a prima facie case requires proof of a
distinct class, the degree of underrepresentation,
and a procedure that is susceptible to abuse or not
neutral.
48
(2) Absolute difference test, ratio approach and focus upon differ-
ences caused by underrepresentation of reCOgnizable, distinct Class on
grand jury are inadequate as evidence of intent to discriminate.
U.S.-Villafane V. Manson, D.C.Conn., 504 F.Supp. 78, affirmed 639
F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69 L.Ed.2d
431.
(3) If, based on statistics, it appears unlikely that particular pattern
of racial distribution would have resulted from random choice of grand
jurors, it is reasonable to infer that discriminatory racial factors have
entered into the selection process, and thus primary reliance is placed
by the court upon the statistical decision theory as means of testing
probability that certain degree of underrepresentation could have been
result of random choice rather than intentional discrimination.
U.S.-Villafane V. Manson, D.C.Conn., 504 F.Supp. 78, affirmed 639
F.2d 770, certiorari denied 101 S.Ct. 3066, 452 U.S. 930, 69 L.Ed.2d
431.
(4) Grand jury discrimination was not to be evaluated through
comparison of straight racial percentages, a mathematically incorrect
methodology; rather, standard deviation analysis was to be applied.
U.S.-Moultrie V. Martin, C.AS.C., 690 F.2d 1078.
Foremen
As evidence of discrimination in constituting racial composition of
grand jury, fact that none of grand jury foremen during period
analyzed was black was irrelevant.
U.S.-Boykins V. Maggio, C.ALa., 715 F.2d 995, certiorari denied
Boykins V. Blackburn, 104 S.Ct. 1918, 466 U.S. 940, 80 L.Ed.2d 465.
Petit juries
Where both grand and petit juries were drawn from same venires,
number of blacks appearing on petit juries were to be looked at to
obtain a full overview of system in determining whether there was
underrepresentation.
U.S.-LaRoche V. Perrin, CAN.H., 718 F'2d 500.
45. U.S.-Akins V. State of Texas, Tex., 65 S.Ct. 1276, 325 U.S. 398,
89 L.Ed. 1692, rehearing denied 66 S.Ct. 86, 326 U.S. 806, 90 L.Ed.
491.
46. U.S.-Castaneda V. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
47. U.S.-Castaneda v. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
48. U.S.-Jefferson V. Morgan, C.A.6(Tenn.), 962 F.2d 1185, certiora-
ri denied 113 S.Ct. 297, 506 U.S. 905, 121 L.Ed.2d 221-Ellis V.
Lynaugh, 873 F.2d 830, CA5(Tex.), certiorari denied 110 S.Ct. 419,
493 U.S. 970, 107 L.Ed.2d 384-Ross V. Hopper, C.AGa., 716 F.2d
1528, on rehearing 756 F.2d 1483, on remand 785 F.2d 1467.-U.S.
V. Brummitt, CA Tex., 665 F.2d 521, certiorari denied 102 S.Ct.
2244, 456 U.S. 977, 72 L.Fd2d 852.
La.-State v. James, App. 1 Cir., 459 So.2d 1299, writ denied 463 So.2d
600, grant of habeas corpus reversed James V. Whitley, 39 F.3d 607,
certiorari denied 115 S.Ct. 1704, 131 L.Ed.2d 565.
347
§ 15 GRAND JURIES
It has also been held that a prima facie case of
discrimination can be demonstrated by showing
underrepresentation on the particular grand jury
that indicted accused and a selection system that is
subject to abuse,49 or by showing underrepresenta-
tion on numerous grand juries over a significant
period of time, without showing underrepresenta-
tion on the particular grand jury.50 However, it
has also been held that only if there is underrepre-
sentation on the particular grand jury does the
makeup of prior grand juries become relevant.
51
If a prima facie case of discrimination is estab-
lished, the burden shifts to the government to
rebut the presumption of discrimination. 52 A sim-
ple protestation from an official that improper con-
siderations played no part in the selection is insuffi-
cient.
53
The mere general assertions by officials of
their performance of duty is not an adequate justi-
fication for the complete exclusion of a particular
race from grand jury service. 54 Furthermore,
chance and accident alone do not constitute an
explanation for the continuous omission of a partic-
Tex.-Cerda v. State, App. 7 Dist, 644 S.W.2d 875.
Underrepresentation alone insufficient
Ariz.-State v. Acosta, App., 608 P.2d 83, 125 Ariz. 146.
Causal link
Prima facie case of grand jury discrimination is not made out by
"significant disparity" alone or by "significant disparity" and mere
"opportunity for discrimination," but only by proof that infected source
provided opportunity for discrimination and that use of such infected
source produced significant disparity.
Ga.-Cochran v. State, 271 S.E.2d 864, 155 Ga.App. 418.
49. U.S.-Jefferson v. Morgan, C.A6(Tenn), 962 F.2d 1185, certiora-
ri denied 113 S.Ct. 297, 506 U.S. 905, 121 L.Ed.2d 22l.
50. U.S.-Jefferson v. Morgan, C.A6(Tenn.), 962 F.2d 1185, certiora-
ri denied 113 S.Ct. 297, 506 U.S. 905, 121 L.Ed.2d 22l.
51. Tex.-Espinoza v. State, Cr.App., 604 S.W.2d 908.
52. U.S.-Castaneda v. Partida, Tex., 97 S.Ct. 1272,430 U.S. 482, 51
L.Ed.2d 498.
Or.-State v. Walton, 809 P.2d 81, 311 Or. 223, appeal after remand
894 P.2d 1212, 134 Or.App. 66, review denied 899 P.2d 1197, two
cases, 321 Or. 429.
RI.-State v. Jenison, 405 A2d 3, 122 RI. 142.
Examples
(1) Evidence detailing procedures followed by Commissioner of
Jurors in selecting grand jurors, setting forth such facts as the number
of members of t.be underrepresented group who were not residents of
the area, who are illiterate, who are not of good moral character, or
who are prior felons is probative of whether underrepresentation of
particular group is unlawful.
N.Y.-People v. Guzman, 457 N.E.2d 1143, 60 N.Y.2d 402, 469
N.Y.S.2d 916, certiorari denied Guzman v. New York, 104 S.Ct.
2155,466 U.S. 951, 80 L.Ed.2d 54l.
(2) Prima facie case is not rebutted by simple allegation that figures
establishing population percentages do not make allowance for exclud-
ed classes, nor is state's burden met, as it would be in Sixth Amend-
38A C.J.S.
ular race from grand juries over a long period of
time. 55 The fact that the group allegedly discrimi-
nated against constitutes a governing majority is
insufficient. 56
h. Fair Cross Section
In order to establish a prima facie violation of a fair c r ~ s
section requirement with respect to grand juries, accused must
show that a group is distinctive, that its representation in venires
is not fair and reasonable in relation to its numbers in the
community, and that this underrepresentation is due to systemat·
ic exclusion. The burden then shifts to the government to prove
that the selection system furthers a significant state interest.
In order to establish a prima facie violation of a
fair cross section requirement with respect to
grand juries, accused must show that the group
alleged to be excluded is a distinctive group in the
community, that the representation of this group in
venires is not fair and reasonable in relation to the
number of such persons in the community, and that
this underrepresentation is due to the systematic
exclusion of the group in the selection process.
57
The disparity in representation must be substan-
ment fair cross section case, by government showing of "adequate
justification" for disproportionate representation of identifiable classes.
U.S.-U.S. v. Jenison, D.C.Fla., 485 F.Supp. 655.
53. U.S.-Castaneda v. Partida, Tex., 97 S.Ct. 1272,430 U.S. 482, 51
L.Ed.2d 498.
Gibson v. Zant, C.AGa., 705 F.2d 1543.
U.S. v. Abell, D.C.Me., 552 F.Supp. 316, 68 AL.RFed. 157.
Ga.-Fouts v. State, 239 S.E.2d 366, 240 Ga. 39.
54. U.S.-Eubanks v. State of Louisiana, La., 78 S.Ct. 970, 356 U.S.
584, 2 L.Ed.2d 991.
55. U.S.-Eubanks v. State of Louisiana, La., 78 S.Ct. 970, 356 U.S.
584, 2 L.Ed.2d 991.
56. U.S.-Castaneda v. Partida, Tex., 97 S.Ct. 1272, 430 U.S. 482, 51
. L.Ed.2d 498.
57. U.S.-Cox v. Montgomery, C.AGa., 718 F.2d 1036-U.S. v.
Foxworth, C.AMass., 599 F.2d l.
U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269-U.S. v. Daly,
D.C.Tex., 573 F.Supp. 788--U.S. v. Musto, D.C.N.J., 540 F.Supp.
346, affirmed U.S. v. Aimone, 715 F.2d 822, certiorari denied
Dentico v. U.S., D.C.N.J., 104 S.Ct. 3585, 468 U.S. 1217, 82 L.Ed.2d
883 and 104 S.Ct. 3586,468 U.S. 1217, 82 L.Ed.2d 883.
Conn.-State v. Castonguay, 481 A2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
Mo.-State v. Garrett, 627 S.W.2d 635, certiorari denied 103 S.Ct. 208,
459 U.S. 906, 74 L.Ed.2d 166, habeas corpus granted Garrett v.
Morris, 815 F.2d 509, certiorari denied Jones v. Garrett, 108 S.Ct.
233, 484 U.S. 898, 98 L.Ed.2d 19l.
State v. Stewart, App., 714 S.W.2d 724.
Group must be cognizable
Cal.-People v. Estrada, 155 Cal.Rptr. 731, 93 C.A3d 76.
Systematic exclusion
(1) Necessary.
348
8A C.J.S.
19 period of
:lly discrimi-
majority is
t of a fair cross
, accused must
ation in venires
umbers in the
ue to systemat-
nrnent to prove
state interest.
iolation of a
respect to
; the group
;roup in the
his group in
ation to the
ty, and that
systematic
n process.
57
be substan-
g of "adequate
nlifiable classes.
130 U.S. 482, 51
Fed. 157.
t. 970, 356 U.S.
I. 970, 356 U.S.
30 U.S. 482, 51
1036--U.S. v.
-U.S. v. Daly,
J., 540 F.Supp.
rtiorari denied
!17, 82 L.Ed.2d
3.
16, appeal after
I 103 S.Ct. 208,
lted Garrett v.
rrett, 108 S.Ct.
5.
38A C.J.S.
tial.
58
The disparity must be based not on total
population, but on those of the group who are
eligible to serve as jurors.
59
Once accUsed establishes a prima facie violation,
the burden shifts to the government to prove that
the selection system furthers a significant state
interest.
60
§ 16. Groups Covered
With respect to the prohibition on discrimination and the
fair cross section requirement applicable to grand jury selection,
N.Y.-People v. Guzman, 454 N.Y.S.2d 852, 89 AD.2d 14, affirmed
457 NE.2d 1143, 60 N.Y.2d 403, 469 N.Y.S.2d 916, certiorari denied
Guzman v. New York, 104 S.Ct. 2155, 466 U.S. 951, 80 L.Ed.2d 541.
(2) It bas been said that, for the purpose of making out a prima
facie case, there is no difference between underrepresentation in equal
protection cases and systematic exclusion in fair cross section cases.
Ky.--Commonwealth v. McFerron, 680 S.W.2d 924.
(3) Fact that group members do not respond to sununons for grand
jury service to qualify in proportion to their representation within the
community is not an inherent defect in the selection process sufficient
to constitute a showing of systematic exclusion.
N.Y.-People v. Guzman, 454 N.Y.S.2d 852, 89 AD.2d 14, affirmed
457 NE.2d 1143, 60 N.Y.2d 403, 469 N.Y.S.2d 916, certiorari denied
Guzman v. New York, 104 S.Ct. 2155, 466 U.S. 951, 80 L.Ed.2d 54I.
Particular grand jmy
(1) Defendant bears bUrden of showing that underrepresentation of
distinctive group exists not only generally but also on his own jury or
grand jury panel.
Mo.-State v. Bernard, App., 641 S.W.2d 462.
(2) Party may assert underrepresentation of group on grand jury list,
although there was no such underrepresentation on his jury.
U.S.-U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269.
(3) Where statutory procedures desigued to secure random selection
of grand jurors and prevent "stacking" of grand jury against a suspect
have not been complied with, accused indicated by such grand jury has
no obligation to demonstrate that such "stacking" in fact happened to
him, as the evil which must be avoided is the appearance that it could
have happened.
Ohio-State v. Davis, 397 N.E.2d 1215, 60 Ohio App.2d 355, 14
O.O.3d 315.
58. U.S.-U.S. v. Gregory, CAAla., 730 F.2d 692, rehearing denied
740 F.2d 979, certiorari denied 105 S.Ct. 1170, 469 U.S. 1208, 84
L.Ed2d 321, certiorari denied Spurlock v. U.S., 105 S.Ct. 1171,469
U.S. 1208, 84 L.Ed.2d 321-U.S. v. Kieifgen, C.ANev., 557 F.2d
1293.
Conn.-State v. Castonguay, 481 A2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
Statistics
(1) Statistical decision theory conld not properly be used since focus
of due process test is not on intent but, rather, on whether the array
was reasonably representative of the community.
Conn.-State v. Castonguay, 481 A2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
(2) Absolute difference test could not be used since that test is
inadequate when the percentage of persons in the group is small in
relation to the entire population, and since the result obtained from
use of that test distorted reality.
GRAND JURIES § 16
various groups have been found cognizable, such as women and
blacks.
Library References
Grand Jury €:>2*, 17.
illegal discrimination or violation of the fair cross
section requirement with respect to grand jury
selection must i,IlVolve a cognizable or distinctive
group, as discussed supra § 15. The test for a
cognizable group is the same under the equal pro-
tection guaranty and the fair cross section require-
Conn.-State v. Castonguay, 481 A2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
(3) Ratio method, or comparative disparity method, could not be
used since that method yielded results that distorted reality in situation
in which only a very small proportion of the population was in group.
Conn.-State v. Castonguay, 481 A.2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
(4) In assessing whether a given defendant's constitutional or statu-
tory rights have been violated through the operation of a jury selection
process, the proper focus of inquiry must be the impact of challenged
process on grand and petit juries.
Conn.-State v. Castonguay, 481 A2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
(5) Where group constituted relatively small percentage of eligible
jury population, court would focus on absolute disparity.
U.S.-U.S. v. Musto, D.CNJ., 540 F.Supp. 346, affirmed U.S. v.
Aimone, 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
3585,468 U.S. 1217, 82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S.
1217,82 L.Ed.2d 883.
(6) In determining whether a cognizable group has been substantial-
ly underrepresented on a grand jury venire, the court will look to
people and not percentages; that is, it will consider the effect of the
deviation on the absolute numerical composition of the grand jury.
U.S.-U.S. v. Potter, C.ANev., 552 F.2d 9OI.
59. U.S.-U.S. v. Brummitt, CA Tex., 665 F.2d 521, certiorari denied
102 S.Ct. 2244,456 U.S. 977, 72 LEd.2d 852.
Age
(1) In determining underrepresentation of identified groups on
grand jury, it is appropriate to define community in terms of voting age
population since only those persons 18 years of age or older are
eligible for jury service.
U.S.-U.S. v. Musto, D.CNJ., 540 F.Supp. 346, affirmed U.S. v.
Aimone, 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
3585,468 U.S. 1217, 82 LEd.2d 883 and 104 S.Ct. 3586, 468 U.S.
1217,82 L.Ed.2d 883.
(2) Defendant adequately stated percentage of community made up
by the groups by providing voting-age populations.
U.S.-U.S. v. LaChance, CA2(Conn.), 788 F.2d 856, certiorari denied
107 S.Ct. 271, 479 U.S. 883, 93 L.Ed.2d 248.
60. U.S.-U.S. v. Musto, D.C.N.J., 540 F.Supp. 346, affirmed U.S. v.
Aimone, 715 F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct.
3585, 468 U.S. 1217, 82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S.
1217, 82 L.Ed.2d 883-U.S. v. Cabrera-Sarmiento, D.C.Fla., 533
F.Supp. 799.
Conn.-State v. Castonguay, 481 A.2d 56, 194 Conn. 416, appeal after
remand 590 A2d 901, 218 Conn. 486.
Mo.-State v. Davidson, App., 583 S.W.2d 208.
349
§ 16 GRAND JURIES
ment.
61
Cognizability is a question of fact.
62
The essence of the cognizability requirement is
the need to delineate an identifiable group which, in
some objectively discernible and significant way, is
distinct from the rest of society, and whose inter-
ests cannot be adequately represented by other
members of the grand jury panel. 63 Factors con-
sidered include adequacy of definition, degree of
cohesiveness, and potential for prejudice.
64
The
group must be defined and limited by some factor,
a common thread or basic similarity in attitude or
ideas or experience must run through the group,
and there must be a community of interest such
that the group's interests cannot be adequately
represented if the group is excluded.
65
It must be
characterized by a basic similarity in attitudes,
ideas, or experiences which cannot be adequately
61. U.S.-U.S. v. Daly, D.CTex., 573 F.Supp. 788.
62. U.S.-U.S. v. Daly, D.CTex., 573 F.Supp. 788.
63. U.S.-U.S. v. Potter, C.A.Nev., 552 F.2d 901.
64. U.S.-U.S. v. Marrapese, D.CRI., 610 F.Supp. 991.
65. U.S.-U.S. v. Gruberg, D.C.N.Y., 493 F.Supp. 234.
NJ.-State v. Porro, 377 A.2d 950, 152 N.J.Super. 259, affirmed 385
A.2d 1258, 158 N.J.Super. 269, certiorari denied 99 s.a. 724, 439
U.S. 1047, 58 L.Ed.2d 706.
66. U.S.-U.S. v. Abell, D.CMe., 552 F.Supp. 316.
67. Ky.-Commonwealth v. McFerron, 680 S.W.2d 924.
68. U.S.-Hernandez v. State of Texas, Tex., 74 s.a. 667, 347 U.S.
475, 98 L.Ed. 866.
69. U.S.-Hernandez v. State of Texas, Tex., 74 s.a. 667, 347 U.S.
475, 98 L.Ed. 866.
70. U.S.-Hernandez v. State of Texas, Tex., 74 s.a. 667, 347 U.S.
475, 98 L.Ed. 866.
71. College persons
Group consisting of the presidents, professors, tutors, and students
of recognized universities and colleges was sufficiently large to fulfill
the cognizability reqnirement.
RI.-State v. Jenison, 405 A.2d 3, 122 RI. 142.
72. U.S.-U.S. v. Kleifgen, C.A.Nev., 557 F.2d 1293.
73. U.S.-Gibson v. Zant, C.A.Ga., 705 F.2d 1543.
U.S. v. Donohue, D.CMd., 574 F.Supp. 1269.
74. U.S.-Gibson v. Zant, CA.Ga., 705 F.2d 1543-U.S. v. Kleifgen,
C.A.Nev., 557 F.2d 1293.
75. U.S.-U.S. v. Yonkers Contracting Co., Inc., S.D.N.Y., 682
F.Supp. 757.
Conn.-State v. Couture, 482 A.2d 300, 194 Conn. 530, certiorari
denied 105 s.a. 967, 469 U.S. 1192, 83 L.Ed.2d 971, appeal after
remand 589 A.2d 343, 218 Conn. 309.
76. U.S.-U.S. v. Brady, C.A.Mont., 579 F.2d 1121, certiorari denied
99 s.a. 849, 439 U.S. 1074,59 L.Ed.2d 41.
Soshone and Arapaho
U.S.-U.S. v. Tranakos, D.Wyo., 690 F.Supp. 971.
77. U.S.-Ciudadanos Unidos De San Juan v. Hidalgo County Grand
Jury Com'rs, CA.Tex., 622 F.2d 807, certiorari denied 101 s.a.
1479, 450 U.S. 964, 67 L.Ed.2d 613. .
38A C.J.S.
represented if the group is excluded, and must be
perceived as distinct by the community at large.
66
The group must comprise a substantial percentage
of the population.67
Discrimination in grand jury selection need not
be based upon race or color in order to violate the
equal protection guaranty.68 Racial groups other
than blacks and whites are protected.
69
Discrimi-
nation on the basis of ancestry or national origin is
covered.
70
Various groups have been found cognizable,71
such as males,72 women,73 blacks,74 Hispanics,75
American Indians,76 the young,77 and the poor.
78
Various groups have been found not cognizable,79
such as age groups,SO the young,81 the poor,82 work-
78. U.S.-Ciudadanos Unidos De San Juan v. Hidalgo County Grand
Jury Com'rs, CA. Tex., 622 F.2d 807, certiorari denied 101 s.a.
1479,450 U.S. 964, 67 L.Ed.2d 613.
79. Nonhomeowners
U.S.-Sands v. Cunningham, D.C.N.H., 617 F.Supp. 1551.
Nonwhite
U.S.-U.S. v. Daly, D.CTex., 573 F.Supp. 788.
Single persons
Ga.-Pope v. State, 345 S.E.2d 831, 256 Ga. 195, appeal after remand
354 S.E.2d 429, 257 Ga. 32, certiorari denied 108 S.Ct. 207, 484 U.S.
873, 98 L.Ed.2d 159.
Students
N.J.-State v. Butler, 382 A.2d 696, 155 NJ.Super. 270.
Unemployed
U.S.-U.S. v. Kleifgen, C.A.Nev., 557 F.2d 1293.
Ga.-Pope v. State, 345 S.E.2d 831, 256 Ga. 195, appeal after remand
354 S.E.2d 429, 257 Ga. 32, certiorari denied 108 s.a. 207, 484 U.S.
873, 98 L.Ed.2d 159.
Union affiliation
U.S.-U.S. v. Gibson, D.COhio, 480 F.Supp. 339.
80. U.S.-U.S. v. Rosenthal, D.CGa., 482 F.Supp. 867.
Ga.-Fouts v. State, 239 S.E.2d 366, 240 Ga. 39.
S.C.-State v. Plath, 284 S.E.2d 221, 277 S.C. 126, appeal after remand
313 S.E.2d 619, 281 S.C. 1, certiorari denied Arnold v. South
Carolina, 104 s.a. 3560, 467 U.S. 1265, 82 L.Ed.2d 862, rehearing
denied 105 s.a. 27, 468 U.S. 1226, 82 L.Ed.2d 920 and 105 s.a. 28,
468 U.S. 1226, 82 L.Ed.2d 920.
81. U.S.-U.S. v.Potter, C.A.Nev., 552 F.2d 901.
Sands v. Cunningham, D.CN.H., 617 F.Supp. 1551-U.S. v. Mus-
to, D.CN.J., 540 F.Supp. 346, affirmed U.S. v. Aimone, 715 F.2d
822, certiorari denied Dentico v. U.S., 104 s.a. 3585, 468 U.S. 1217,
82 L.Ed.2d 883 and 104 s.a. 3586, 468 U.S. 1217, 82 L.Ed.2d 883-
U.S. v. Layton, D.C.Cal., 519 F.Supp. 946.
Cal.-People v. Estrada, 155 CaI.Rptr. 731, 93 CA.3d 76.
Ga.-Lee v. State, 365 S.E.2d 99, 258 Ga. 82, certiorari denied 109
s.a. 195, 488 U.S. 879, 102 L.Ed.2d 165.
Tex.-Burks v. State, CrApp., 583 S.W.2d 389, certiorari denied 100
s.a. 3050, 448 U.S. 907, 65L.Ed.2d 1136.
350
38A C.J.S.
led, and must be
nunity at large.
66
antial percentage
need not
:ler to violate the
groups other
Discrimi-
national origin is
md cognizable,71
{S,74 Hispanics,75
and the poor.
78
not cognizable,79
the poor,82 work-
Hidalgo County Grand
Jrari denied 101 S.Ct.
1551.
5, appeal after remand
108 S.Ct. 207, 484 U.S.
er.270.
5, appeal after remand
L08 S.Ct. 207, 484 U.S.

Ipp.867.
6, appeal after remand
lied Arnold v. South
_.Ed.2d 862, rehearing
1920 and 105 S.Ct. 28,
1.
'po 1551-U.S. v. Mus-
v. Aimone, 715 F.2d
t. 3585, 468 U.S. 1217,
217,82 L.Ed.2d 883-
.A.3d 76.
certiorari denied 109
certiorari denied 100
38A C.J.S.
ing people,83 the less educated,84 professions or
occupations,85 recent residents,86 and residents of
particular areas.
87
§ 17. Qualifications, Exemptions, and Excuses
Under the prohibition on discrimination and the fair cross
section requirement applicable to grand jury selection, the exclu-
sion or exemption of various persons has been upheld, and the
excusing of grand jurors on an individualized basis generally does
not result in a violation.
Library References
Grand Jury 2}2, 17.
A statute excluding a class of individuals from
grand jury selection must be predicated upon a
rational and nondiscriminatory basis.
88
Under the
prohibition on discrimination and the fair cross
section requirement applicable to grand jury selec-
Standard of review
Young persons, though they belong in cross section from which
jurors are drawn, do not make up a constitutionally highly protected
class, that is, one which has suffered oppression and discrimination,
and their claimed underrepresentation does not invoke high standard
of judicial review.
Ga.-Parks v. State, 330 S.E.2d 686, 254 Ga. 403, 62 AL.R4th 833.
82. v. Cunningham, D.C.N.H., 617 F.Supp. 1551.
Cal.-People v. Estrada, 155 Cal.Rptr. 731, 93 C.A.3d 76.
Ga.-Carter v. State, 315 S.E.2d 646, 252 Ga. 502.
83. U.S.-U.S. v. Layton, D.C.Cal., 519 F.Supp. 946.
Blue collar workers
Cal.-People v. Estrada, 155 Cal.Rptr. 731, 93 C.A.3d 76.
84. U.S.-U.S. v. Potter, C.A.Nev., 552 F.2d 901.
Cal.-People v. Estrada, 155 Cal.Rptr. 731, 93 C.A.3d 76.
Ga.-Pope v. State, 345 S.E.2d 831, 256 Ga. 195, appeal after remand
354 S.E.2d 429, 257 Ga. 32, certiorari denied 108 S.Ct. 207, 484 U.S.
873, 98 L.Ed.2d 159.
85. Ky.-Commonwealth v. McFerron, 680 S.W.2d 924.
Professionals
Potential grand jurors with "professional" occupations did not con-
stitute a cognizable group.
U.S.-U.S. v. Marrapese, D.C.RI., 610 F.Supp. 991.
Clergymen
N.J.-State v. Butler, 382 A2d 696, 155 N.J.Super. 270.
86. U.S.-Sands v. Cunningham, D.C.N.H., 617 F.Supp. 1551.
Ga.-Pope v. State, 345 S.E.2d 831, 256 Ga. 195, appeal after remand
354 S.E.2d 429, 257 Ga. 32, certiorari denied 108 S.Ct. 207, 484 U.S.
837,98 L.Ed.2d 159.
87. U.S.-U.S. v. Abell, D.C.Me., 552 F.Supp. 316.
Ala.-Rayburn v. State, Cr.App., 495 So.2d 733.
Mass.-Commonwealth v. Duteau, 424 N.E.2d 1119, 384 Mass. 321.
88. N.Y.-People v. Legrand, 387 N.Y.S.2d 807, 88 Misc.2d 41.
89. U.S.-U.S. v. Avalos, C.AFla., 541 F.2d 1100, rehearing denied
545 F.2d 168, certiorari denied 97 S.Ct. 1656, 430 U.S. 970, 52
L.Ed.2d 363.
GRAND JURIES § 17
tion, the exclusion from grand jury selection of
various persons has been upheld,89 such as aliens,90
minors,91 persons charged with or convicted of a
felony,92 persons whose senses of hearing or seeing
are substantially impaired,93 persons who do not
meet a residency requirement,94 public employees,95
and persons in certain occupations.
96
Exemptions granted on request to members of
specific occupations and professions whose uninter-
rupted performance is considered to be of signifi;..
cant interest to the state have been upheld.
97
Vari-
ous particular occupational exemptions have been
upheld.
98
A child care exemption has been up-
held.
99
The excusing of grand jurors on an individualized
basis, as distinct from systematic exclusion, gener-
ally does not result in a constitutional violation,
1
90. U.S.-U.S. v. Avalos, C.AFla., 541 F.2d 1100, rehearing denied
545 F.2d 168, certiorari denied 97 S.Ct. 1656, 430 U.S. 970, 52
L.Ed.2d 363.
Conn.-State v. Thigpen, 397 A2d 912, 35 Conn.Sup. 98.
91. Persons nuder 21
Ga.-Welch v. State, 229 S.E.2d 390, 237 Ga. 665.
IS-year old
U.S.-Graham v. Collins, C.A.5(Tex.), 950 F.2d 1009, affirmed 113
S.Ct. 892, 506 U.S. 461, 122 L.Ed.2d 260, rehearing denied 113 S.Ct.
1406, 507 U.S. 968, 122 L.Ed.2d 778.
92. U.S.-U.S. v. Foxworth, C.A.Mass., 599 F.2d 1.
93. U.S.-Eckstein v. Kirby, D.C.Ark., 452 F.Supp. 1235.
94. U.S.-U.S. v. Daly, D.C.Tex., 573 F.Supp. 788.
One year
U.S.-U.S. v. Rosenthal, D.C.Ga., 482 F.Supp. 867.
Alaska-Smiloffv. State, 579 P.2d 28.
95. N.Y.-People v. Legrand, 387 N.Y.S.2d 807, 88 Misc.2d 41.
96. Ala.-Oark v. State, CrApp., 551 So.2d 1081, cause remanded
551 So.2d 1090, on remand 551 So.2d 1091, affirmed 551 So.2d,1091.
Lawyers
Iowa-State v. Gartin, 271 N.W.2d 902.
97. RI.-State v. Courteau, 461 A2d 1358.
98. D.C.-Sweet v. U.S., App., 449 A2d 315.
Ministers
U.S.-U.S. v. Butler, C.AGa., 611 F.2d 1066, rehearing denied 615
F.2d 685, certiorari denied Fazio v. U.S., 101 S.Ct. 97, 449 U.S. 830,
66 L.Ed.2d 35.
College professors and students
R.I.-State v. Conway, 463 A2d 1319.
99. U.S.-U.S. v. Daly, D.C.Tex., 573 F.Supp. 78B-U.S. v. Manbeck,
D.C.S.C. 514 F.Supp. 141-U.S. v. Rosenthal, D.C.Ga. 482 F.Supp.
867-U.S. v. Lindelow, D.C.Puerto Rico, 435 F.Supp. 367.
1. N.J.-State v. Porro, 385 A2d 1258, 158 N.J.Super. 269, certiorari
denied 99 S.Ct. 724, 439 U.S. 1047, 58 L.Ed.2d 706.
351
§ 17 GRAND JURIES
even if jurors are excused for reasons not defined
by statute.
2
When jurors are excused because they
may impair the progress of the proceedings or
prejudice the parties or because they have served
their statutory time, there is no realistic risk of
bias.
3
A self-selection process whereby jurors are
excused for personal, health, or business reasons
protects fairly well against any realistic risk of bias,
at least where the panel remains large and there is
no indication that requests are being granted or
denied differentially.4 Where the excusing of
grand jurors reduces a group's representation to
impotence or unreasonably restricts the possibility
that the grand jury will comprise a representative
cross section of the community, a constitutional
violation may result.
s
§ 18. Particular Methods of Selection
A "key man" system of grand jury selection is not uncon-
stitutional per se. Random selection is not constitutionally re-
quired, but may be required by statute. Use of voter registration
lists as the sole source of names of prospective grand jurors has
been upheld.
Library References
Grand jury e->2l2, 8, 17.
2. Or.-State v. Gortmaker, 668 P.2d 354, 295 Or. 505, certiorari
denied 104 S.O. 1416,456 U.S. 1066,79 L.Ed.2d 742.
3. Or.-State v. Gortmaker, 655 P.2d 575, 60 Or.App. 723, affirmed
668 P.2d 354, 295 Or. 505, certiorari denied 104 S.Ct. 1416, 465 U.S.
1066, 79 L.Ed.2d 742.
4. Or.-State v. Gortmaker, 655 P.2d 575, 60 OrApp. 723, affirmed
668 P.2d 354, 295 Or. 505, certiorari denied 104 S.O. 1416,465 U.S.
1066,79 L.Ed.2d 742.
5. N.J.-State v. Ramseur, 524 A2d 188, 106 N.J. 123, denial of
habeas corpus affirmed Ramseur v. Beyer, 903 F.2d 1215, certiorari
denied 113 S.O. 2433, 508 U.S. 947, 124 L.Ed.2d 653.
6. U.S.-Franklin v. State of South Carolina, S.c., 30 S.O. 640, 218
U.S. 161, 54 L.Ed. 980--Williams v. State of Mississippi, Miss., 18
S.O. 583, 170 U.S. 213, 42 L.Ed. 1012.
Ga.-Moon v. State, 375 S.E.2d 442, 258 Ga. 748, certiorari denied 111
S.O. 1638, 499 U.S. 982, 113 L.Ed.2d 733, rehearing denied 111
S.O. 2841, 501 U.S. 1224, 115 L.Ed.2d 1010, grant of habeas corpus
reversed Zant v. Moon, 440 S.E.2d 657, 264 Ga. 93, certiorari denied
115 S.O. 437, 130 L.Ed.2d 348, rehearing denied 115 S.O. 783, 130
L.Ed.2d 676.
MO.-State v. Johnson, App., 539 S.W.2d 493, certiorari denied 97
S.O. 1558, 430 U.S. 934, 51 L.Ed.2d 779.
7. U.S.-Castaneda v. Partida, Tex., 97 S.O. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
Mo.-State v. O'Neal, 718 S.W.2d 498, certiorari denied 107 S.O.
1388, 480 U.S. 926, 94 L.Ed.2d 702, denial of habeas corpus affirmed
O'Neal v. Delo, 44 F.3d 655, rehearing and suggestion for rehearing
en banc denied, certiorari denied 116 S.O. 129, 133 L.Ed.2d 78-
State v. Baker, 636 S.W.2d 902, certiorari denied 103 S.O. 834, 459
U.S. 1183,74 L.Ed.2d 1027.
38A C.J.S.
The mere fact that officers are given discretion
in selecting grand jurors and that the selection
system might be applied in a discriminatory man-
ner does not, in and of itself, result in a violation of
the equal protection guaranty.6 Thus, a "key man"
system of selection is not in and of itself unconstitu-
tional.
7
Random selection is not constitutionally
required.
8
However, a key man system is suscepti-
ble of abuse.
9
Where there are qualified members
of a particular race available, the exclusion by
officers of all members of such race whom they do
not know to be qualified, without either knowing or
seeking to learn whether there are in fact any
members qualified to serve, violates the equal pro-
tection guaranty.l0
Drawing a grand jury exclusively from those
indicating a willingness to serve is not unconstitu-
tional,u .
Some statutes require random selection.
12
How-
ever, completely random selection is not necessarily
required by statuteS.
13
The use of tax lists in the selection of grand
jurors does not necessarily violate the equal protec-
tion guarantyY The use of voter registration lists
as the sole source of names of prospective grand
jurors has been upheld, IS but may in some circum-
9. U.S.-Castaneda v. Partida, Tex., 97 S.O. 1272, 430 U.S. 482, 51
L.Ed.2d 498.
10. U.S.-Hill v. State of Texas, Tex., 62 S.Ct. 1159,316 U.S. 400, 86
L.Ed.1559.
11. Nev.-Adler v. State, 594 P.2d 725, 95 Nev. 339.
12. Equal chance
Requirement of random process to insure representativeness of
grand jury panel demands that each person have equal chance of
serving.
N.J.-State v. Ramseur, 524 A2d 188, 106 N.J. 123, denial of habeas
corpus affirmed 983 F.2d 1215, certiorari denied 113 S.O. 2433, 508
U.S. 947, 124 L.Ed.2d 653.
Duplication of names
A random grand jury selection process demands a minimization of
the duplication of names on the source list.
N.J.-State v. Long, 499 A2d 264, 204 N.J. Super. 469.
13. Ind.-State ex reI. Bums v. Sharp, 393 N.E.2d 127, 271 Ind. 344.
14. U.S.-Brown v. Allen, N.C., 73 S.O. 397, 344 U.S. 443, 97 L.Ed.
469, dissenting opinion Daniels v. Allen, 73 S.O. 437, 344 U.S. 443,
97 L.Ed. 469, rehearing denied 73 S.O. 827, two cases, 345 U.s. 946,
97 L.Ed. 1370, and Speller v. Allen, 73 S.O. 827, 345 U.S. 946, 97
L.Ed.1370.
15. U.S.-Bryant v. Wainwright, C.A.Fla., 686 F.2d 1373, rehearing
denied 691 F.2d 512, certiorari denied 103 S.O. 2096, 461 U.S. 932,
77 L.Ed.2d 305.
U.S. v. Daly, D.C.Tex., 573 F.Supp. 788.
8. Conn.-State v. Avcollie, 453 A2d 418, 188 Conn. 626, certiorari A1a.-Sanders v. State, Cr.App., 426 So.2d 497.
denied 103 S.Ct. 2088, 461 U.S. 928, 77 L.Ed.2d 299. La.-State v. Kahey, App. 3 Cir., 461 So.2d 543.
352
I II
38A C.J.S.
yen discretion
the selection
ninatory man-
1 a violation of
s, a "key man"
elf unconstitu-
:onstitutionally
is suscepti-
ified members
exclusion by
whom they do
er knowing or
in fact any
Ghe equal pro-
'f from those
ot unconstitu-
ction.
12
How-
ot necessarily
;ion of grand
equal protec-
lists
pective grand
some circum-
430 u.s. 482, 51
9, 316 u.s. 400, 86
I.
lresentativeness of
e equal chance of
3, denial of habeas
113 S.Ct. 2433, 508
a minimization of
i9.
I 127, 271 Ind. 344.
U.S. 443, 97 L.Ed.
437, 344 U.S. 443,
:ases, 345 U.S. 946,
7, 345 U.S. 946, 97
2d 1373, rehearing
2096, 461 U.S. 932,
38A C.J.S.
stances be improper as violating the fair cross
section requirement.
16
Similarly, the use of a list
of persons with driver's licenses as the sole source
has been upheld.
17
In the case of federal grand juries, the Jury
Selection and Service Act requires random selec-
tion.
1S
However, the end result need not conform
to a statistician's technical definition of ''random-
ness." 19 The selection of volunteers from the pool
of prospective grand jurors is improper under the
Act.20 Under the Act, except in certain districts,
the names of prospective jurors shall be selected
from the voter registration lists or the lists of
actual voters, but some additional source or sources
shall be used where necessary to foster statutory
policies and protect statutory rights.
21
§ 19. Standing of Accused
Accused may challenge the exclusion of a group from jury
selection and raise a claim of discrimination or violation of the
fair cross section requirement even if accused is not a member of
such group.
NJ.-State v. Porro, 377 A2d 950, 152 N.J.Super. 259, affirmed 385
A2d 1258, 158 NJ.Super. 269, certiorari denied 99 S.Ct. 724, 439
U.S. 1047, 58 L.Ed.2d 706.
Voters and licensed drivers
La.-State v. Sheppard, 350 So.2d 615.
16. U.S.-Bryant v. Wainwrigbt, CAFla., 686 F.2d 1373, rehearing
denied 691 F.2d 512, certiorari denied 103 S.Ct. 2096, 461 U.S. 932,
77 LEd.2d 305.
17. Ala.-Rayburn v. State, Cr.App., 495 So.2d 733.
18. 28 U.S.CA § 1861.
Jury Selection and Service Act in general see supra § 13.
19. U.S.-U.S. v. Cabrera-Sanniento, D.C.Fla., 533 F.Supp. 799.
20. U.S.-U.S. v. Branscome, CAVa., 682 F.2d 484.
21. 28 U.S.CA § 1863(b)(2).
Supplementation
(1) When prima facie case of jury discrimination is established,
supplementation of eligible voter list used to select potential jurors
witb some otber· source or source of names is congressionally mandat-
ed.
U.S.-U.S. v. Brummitt, CATex., 665 F2d 521, certiorari denied 102
S.Ct. 2244, 456 U.S. 977, 72 L.Ed.2d 852.
(2) A4ditional sources can only supplement and not supplant voter
lists; supplemental sources shonld be used only when voter lists
deviate substantially from makeup of local community.
U.S.-U.S. v. Brady, C.AMon!., 579 F.2d 1121, certiorari denied 99
S.Ct. 849, 439 U.S. 1074,59 L.Ed.2d 41.
22. U.S.-U.S. v. Donohue, D.C.Md., 574 F.Supp. 1269-U.S. v.
Cronn, D.C.Tex., 559 F.Supp. 124, affirmed 717 F.2d 164, certiorari
denied 104 S.Ct. 3586, 468 U.S. 1217, 82 L.Ed.2d 884, rehearing
denied 105 S.Ct. 51, 468 U.S. 1250, 82 L.Ed.2d 942-U.S. v. Cabre-
ra-Sanniento, D.C.Fla., 533 F.Supp. 799.
GRAND JURIES § 19
Research Note
Persons entitled to object to composition of grand jury in
general are discussed infra § 62.
Library References
Grand Jury <S=>2*' 17.
Accused may challenge the exclusion of a group
from grand jury selection even if accused is not a
member of such groUp.22 Thus, even if accused is
not a member of the group, accused may raise a
claim of discrimination 23 or violation of the fair
cross section requirement.
24
The standing of accused to challenge discrimina-
tion against a group· of which· accused is not a
member was originally justified by some authorities
on the ground that indictment by a grand jury
selected in a discriminatory manner violates ac-
cused's own right to due process.
25
However, more
recent case law dealing with petit juries suggests
that accused may assert the equal protection rights
of a juror.
26
U.S. v. Long, D.C.Pa., 88 .F.R.D. 701, affirmed 676 F.2d 688,
certiorari denied Arrondale v. U.S., 103 S.Ct. 64, 459 U.S. 828, 74
L.pd2d 66.
Ariz.-State v. Acosta, App., 608 P.2d 83, 125 Ariz. 146.
Fla.-Del Sol v. State, App. 3 Dis!., 537 So.2d 693, review discharged
548 So.2d 111O-Castillo v. State, App. 3 Dis!., 466 So.2d 7, ap-
proved in part, quashed in part 486 So.2d 565.
Tenn.-Post v. State, Cr.App., 580 S.W.2d 801.
23. Cal.-People v. Estrada, 155 Cal.Rptr. 731, 93 C.A.3d 76.
Contrary view
There is some authority for tbe view that, at least in tbe case of
gender discrimination, accused may not challenge discrimination
against a group to which accused does not belong.
Tenn.-State v. Coe, 655 S.W.2d 903, certiorari denied 104 S.Ct. 745,
464 U.S. 1063, 79 L.Ed.2d 203.
24. U.S.-U.S. v. Marrapese, D.C.R.I., 610 F.Supp. 991-U.S. v.
Musto, D.C.N.J., 540 F.Supp. 346, affirmed U.S. v. Aimone, 715
F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct. 3585, 468 U.S.
1217,82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S. 1217,82 L.Ed.2d
883---U.S. v. Cabrera-Sarmiento, D.C.Fla., 533 F.Supp. 799-U.S. v.
Layton, D.C.Cal., 519 F.Supp. 946.
N.Y.-People v. Wells, 454 N.Y.S.2d 849, 89 A.D.2d 1020, affirmed
People v. Guzman, 457 N.E.2d 1143, 60 N.Y.2d 403, 469 N.Y.S.2d
916, certiorari denied Guzman v. New York, 104 S.Ct. 2155, 466
U.S. 951, 80 L.Ed.2d 541.
25. U.S.-Peters v. Kiff, Ga., 92 S.C!. 2163, 407 U.S. 493, 33 L.Ed.2d
83, on remand 491 F.2d 967 (per Mr. Justice Marshall, witb two
justices concurring and three justices concurring in tbe judgment).
U.S. v. Yonkers Contracting Co., Inc., S.D.N.Y., 682 F.Supp. 757.
26. U.S.-Powers v. Ohio, Ohio, 111 S.Ct. 1364, 499 U.S. 400, 113
L.Ed2d 411, appeal after remand 635 N.E.2d 1298, 92 Ohio App.3d
400, dismissed, motion overruled 632 N.E.2d 910, 69 Ohio S!.3d
1442, certiorari denied 115 S.Ct. 366, 130 L.Ed2d 319.
353
§ 20 GRAND JURIES 38A C.J.S.
B. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS
§ 20. In General
Statutory and constitutional provisions dealing with grand
juror qualifications must be observed.
Research Note
Constitutional prohibition on discrimination and fair cross sec-
tion requirement as affecting validity of statutes regarding quali-
fications are treated supra § 17. Objections to indictment be-
cause of disqualification of grand juror are considered in C.J.S.
Indictments and Informations § 176.
Library References
Grand Jury =5.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Gnide following Preface.
It has been said that the qualifications of grand
jurors may be changed from time to time by the
legislature.
27
Valid statutory provisions prescrib-
ing the qualifications of grand jurors must be ob-
served.
28
Sometimes the grounds of qualification
or disqualification stated therein are deemed exclu-
sive,29 especially where it is expressly provided by
statute that they shall be exclusive; 30 but in a state
where there is no constitutional provision prescrib-
ing the qualifications of a grand juror, a statute
providing that each grand juror shall possess cer-
tain stated qualifications and be in other respects a
qualified juror is construed to refer to statutory
requirements and common-law disqualifications
which have not been merged in statutory provi-
sions.
31
Constitutional provisions dealing directly
with the question of qualifications will, of course, be
accorded effect.32
Under some statutes, the qualifications of grand
jurors are the same as those required of petit
jurors.
33
However, it has been held that a statute
making all provisions of law covering qualifications
and disqualifications of petit jurors applicable to
27. N.C.---State v. Barker, 12 S.E. 115, 107 N.C. 913.
28. lli.-People v. Bain, 193 N.E. 137, 358 lli. 177-People v. Lieber,
192 N.E. 331, 357 Ill. 423.
Tex.-King v. State, 152 S.W.2d 342, 143 Tex.Cr. 27.
29. W.Va.---State v. Austin, 117 S.E. 607, 93 W.Va. 704.
30. Nev.---State v. Millain,3 Nev. 409.
31. Va.-Waller v: Commonwealth, 16 S.E.2d 808, 178 Va. 294,
certiorari denied Waller v. Youell, 62 S.Ct. 1106, 316 U.S. 679, 86
L.Ed. 1752, rehearing denied 62 S.Ct. 1289, 316 U.S. 712, 86 L.Ed.
1777, motion denied 62 S.Ct. 1285, 316 U.S. 648, 86 L.Ed. 1732.
32. S.C.---State v. Rector, 155 S.E. 385, 158 S.c. 212.
33. Iowa---State v. PeIser, 163 N.W. 600, 182 Iowa 1.
34. Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on
rehearing 131 So. 147, 100 Fla. 373---Peoples v. State, 35 So. 223, 46
Fla. 101.
grand jurors relates only to qualifications and dis-
qualifications generally applicable to all jurors 34
and that it is not to be construed as making all
grounds of challenge to the favor which are applica-
ble to a petit juror grounds of disqualification of a
grand juror.
35
The placing of his name on the grand jury list is
neither a necessary 36 nor a sufficient 37 qualifica-
tion of a prospective juror. According to some
authorities, however, a person is not qualified to
serve as a grand juror where he is not a regular
juror for the week during which the grand jury is
drawn.
38
Also, it is held that a grand juror is
incompetent where his name has been substituted
in the venire for that of another.39
It is the court and not the prosecutor who has
general supervisory authority over the qualifica-
tions and eligibility of persons called to serve as
grand jurors.
40
Time of qualification.
A grand juror must be qualified to serve as such
at the time he servesY A grand juror'squalifica-
tion is determined and fixed at the time he is
impaneled and takes the qualifying oath.42
Presumption and burden of proof as to qualifica-
tions.
The presumption is that members of a grand
jury possess the qualifications prescribed by law; 43
and in the absence of record or other competent
evidence on the question 44 the burden is on the
challenging party to show disqualification.45 It has,
however, been held that, where the state takes
issue on defendant's plea in abatement, denying the
validity of an indictment on the ground of the
35. Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on
rehearing 131 So. 147, 100 Fla. 373---Peoples v. State, 35 So. 223, 46
Fla. 101.
36. W.Va.---State v. Austin, 117 S.E. 607, 93 W.Va. 704 ..
37. W.Va.---State v. Austin, 117 S.E. 607, 93 W.Va. 704.
38. N.C.---State v. Barkley, 151 S.E. 733, 138 N.C. 349.
39. Fla.-Hicks v. State, 120 So. 330, 97 Fla. 199.
40. N.M.-Matter of Grand Jury. Sandoval County, App., 750 P.2d
464, 106 N.M. 764.
41. N.C.---State v. Barkley, 151 S.E. 733, 138 N.C. 349.
42. Tex.-Howard v. State, App. 9 Dis!., 704 S.W.2d 575.
43. La.---State v. Richey, 196 So. 545, 195 La. 319---State v. White,
192 So. 345, 193 La. 775.
44. U.S.-U.S. v. Reilly, D.C.Pa., 30 F.2d 866.
45. La.---State v. Richey, 196 So. 545, 195 La. 319.
354
38A C.J.S.
ications and dis-
to all jurors 34
:l as making all
hich are applica-
lualification of a
jury list is
ient 37 qualifica-
ording to some
not qualified to
is not a regular
le grand jury is
grand juror is
)een substituted
;ecutor who has
r the qualifica-
lIed to serve as
to serve as such
luror's qualifica-
the time he is
oath.42
as to qualifica-
ers of a grand
cribed by law; .43
Ither competent
rrden is on the
cation.
45
It has,
the state takes
ent, denying the
ground of the
la. 373, affirmed on
I. State, 35 So. 223, 46
Va. 704.
Va. 704.
C. 349.
I.
lunty, App., 750 P.2d
C.349.
1V.2d 575.
319-State v. White,
19.
38A C.J.S.
incompetency of the grand jurors by affirmatively
alleging their competency, it must support such
allegation by evidence.
46
It has been held that all persons 21 years old or
older are presumptively eligible for grand jury
duty.47
Jury Selection and Service Act.
Under the Jury Selection and Service Act, in the
case of a federal grand jury, a person shall be
deemed qualified to serve on a grand jury unless
one of several enumerated disqualifications ap-
plies.
48
Certain public officers or employees are
barred from service, as discussed infra § 30.
§ 21. Age
A grand juror must not be a minor; and his age must not
exceed the maximum limit, if any, prescribed by constitutional or
statutory provisions.
Library References
Grand Jury
Under some statutes, grand jurors must be at
least 21 years of age.
49
Under the Jury Selection
and Service Act, a person is not qualified to serve
on a federal grand jury if he is not at least 18 years
old.
50
It seems that, apart from statute, a minor is
disqualified to serve as a grand juror.
51
The fact that a grand juror was a minor when his
name was put on the jury list is immaterial if he
was of age at the time he served. 52
If a maximum age limit is prescribed by constitu-
tional or statutory provision, grand jurors must not
be over that age. 53
§ 22. Business or Occupation
IT the statute so provides, a person engaged in a certain
business or occupation may be disqualified to serve on a grand
jury.
46. Ala.-State v. Ugon, 7 Port. 167.
Miss.-Beason v. State, 34 Miss. 602.
47. Mo.-State v. Baker, 636 S.W.2d 902, certiorari denied 103 S.Ct.
834, 459 U.S. 1183, 74 L.Ed.2d 1027.
48. 28 U:.S.CA § 1865(b).
49. N.J.-State v. Hoffman, 58 A 1012, 71 N.J.Law 285.
SO. 28 U.S.CA § 1865(b)(I).
51. N.C.-State v. Perry, 29 S.E. 384, 122 N.C. 1018.
52. N.C-State v. Perry, 29 S.E. 384, 122 N.C 1018.
53. u.S.-Christopoulo v. U.S., S.C, 230 F. 788, 145 CCA 98.
54. Ky.-Commonwealth v. Pritchett, 11 Bush 277.
55. Va.-Commonwealth v. Willson, 2 Leigh 739, 29 Va. 739.
GRAND JURIES § 23
Persons engaged in certain businesses or occupa-
tions are, or at times have been, disqualified by
statute from serVing on a grand jury.54 Such stat-
utes are not applicable to persons not within their
terms.
55
Unless the statute so provides, persons are not
disqualified because of their particular occupa-
tions.
56
A butcher is not disqualified from serving
on a grand jury merely because of his occupation.
57
§ 23. Citizenship
Ordinarily, a grand juror must be a citizen of the United
States. Under a statute so providing, but not otherwise, an alien
who has declared his intention to become a citizen of the United
States is competent to serve as a grand juror.
Library References
Grand Jury
At common law, an alien is disqualified to serve
as a grand juror.
58
Under many statutes, grand
jurors are required to be citizens of the United
States
59
and of the state.
60
A statute defining a
grand jury as a body of men returned from the
"citizens of the county" has been held to mean that
the grand jurors must be citizens of the United
States who are of the county.61 Absence from the
state on temporary business with no intention of
changing his citizenship does not disqualify a grand
juror.
62
Under the Jury Selection and Service Act, a
person is not qualified to serve on a federal grand
jury if he is not a citizen of the United States.
53
Declaration of intention.
Under a statute so providing, aliens who have
declared their intention to become citizens of the
United States are competent to serve as grand
jurors,54 but in the absence of such a provision it
56. W.Va.-State v. Austin, 117 S.E. 607, 93 W.Va. 704.
57. Ala.-Mason v. State, 53 So. 153, 168 Ala. 48.
58. Va.-Waller v. Commonwealth, 16 S.E.2d 808, 178 Va. 294,
certiorari denied Waller v. Youell, 62 S.Ct. 1106, 316 U.S. 679, 89
L.Ed. 1752, rehearing denied 62 S.Ct. 1289, 316 U.S. 712, 86 L.Ed.
1777, motion denied 62 S.Ct. 1285, 316 U.S. 648, 86 L.Ed. 1732.
59. La.-State v. Soileau, 138 So. 92, 173 La. 531.
60. Fla.-Cotton v. State, 95 So. 668, 85 Fla. 197.
61. N.Y.-People v. Scannell, 75 N.Y.S. 500, 37 Misc. 345, 16
N.Y.Crim.R. 321.
62. La.-State v. Alexander, 35 La.Ann. 1100.
63. 28 U.S.CA § 1865(b )(1).
64. Mont.-Territory v. Harding, 12 P. 750, 6 Mont. 323.
355
__ Ulr.].IIIIIIII!l"'_.:!·I.I.i.,I.",,'1.5[
--' '!" :'.,:"" "," ,
'I

ii
':111
:i
§ 23 GRAND JURIES
has been held that, where citizenship is required, a
declaration of intention is insufficient to qualify one
as a grand juror.
65
§ 24. Conviction of, or Pending Prosecution
for, Crime
A person charged with, or convicted of, a crime or offense
may be disqualified to serve as a grand juror.
Library References
Grand Jury e->5.
At common law one convicted of crime was dis-
qualified to serve as a grand juror.
66
Under some
statutes, persons convicted of certain crimes or
0fi'enses,67 or charged with any ofi'ense,68 are dis-
qualified.
Under the Jury Selection and Service Act, a
person is not qualified to serve on a federal grand
jury if he has a charge pending against him for the
commission of, or has been convicted in a state or
federal court of record of, a crime punishable by
imprisonment for more than one year and his civil
rights have not been restored.
69
If the person is so
charged or convicted, an affirmative act recognized
in law must take place to reStore his civil rights in
order for him to be eligible.
70
In the absence of an
affirmative act such as pardon, amnesty, or expunc-
tion of the conviction, the person is ineligible even
if he has the right to vote and to hold office under
state law.71
65. Wis.-State v. Cole, 17 Wis. 674.
66. m.-Musick v. People, 40 ill. 268.
Tenn.-State v. Deason, 65 Tenn. 511, 6 Baxt. 511.
67. La.-State v. Smith, 83 So. 264, 145 La. 1091.
Infamous crime
Person convicted of numerous lesser crimes but who has not been
convicted of infamous crime is not disqua1ified.
Miss.-Herring v. State, 374 So.2d 784.
Must be convicted in court of same state
Ga.-C1ark v. State, 338 S.E.2d 269, 255 Ga. 370.
Timing
Statute prohibiting convicted felons from serving as grand jurors was
not violated as result of fact that one member of grand jury was
convicted of a felony after the im!ictments had been returned for an
offense committed prior to the indictments where the juror had not
been charged with a crime or arrested at time of his service as a grand
juror.
Ga.-Owens v. State, 305 S.E.2d 102, 251 Ga. 313, appeal after
remand Lumpkin v. State, 338 S.E.2d 431, 255 Ga. 363.
68. La.-State v. Richey, 196 So. 545, 195 La. 319-state v.
177 So. 60, 188 La. 314-state v. Phillips, 114 So. 171, 164 La. 597-
State v. Butier, 90 So. 395, 149 La. 1036.
69 •. 28 U.S.CA § 1865(b)(5).
38A C.J.S.
§ 25. Freeholder or Housepolder
Being a freeholder or a householder, or both, is a necessary
qualification for grand jury service when, and only when, it is so
provided by a statute in force at the time.
Library References
Grand Jury e->5.
The authorities leave it somewhat doubtful
whether it was necessary in England at common
law for grand jurors to be freeholders.
72
In the United States, it has generally been held
that, in the absence of a statute requiring it, a
grand juror need not be a householder or a free-
holder; 73 but under a statute so providing, and in
force at the time, it is a necessary qualification for
service that a grand juror be a freeholder 74 or a
householder,75 or a freeholder and a householder,76
or either a freeholder or a householder.
77
In the
absence of provision to the contrary,78 a statute
fixing a freehold qualification does not confine the
freehold interest to lands of the county.79
§ 26. Inf"mnity
Under some statutes, a person may be disqualified to serve
as a grand juror by reason of a mental or physical infirmity.
Library References
Grand Jury e->5.
Insane persons and idiots are incompetent to act
as grand jurors under the provisions of some stat-
70. U.S.-U.S. v. Hefner, CA4(Va.), 842 F.2d 731, certiorari denied
109 s.n. 174,488 U.S. 868, 102 LEd.2d 144.
71. U.S.-U.S. v. Hefner, CA4(Va.), 842 F.2d 731, certiorari denied
109 s.n. 174,488 U.S. 868, 102 LEd.2d 144.
72. N.Y.-People v. Jewett, 6 Wend. 386.
73. N.e.-State v. Perry, 29 S.E. 384, 122 N.e. 1018.
74. Va.-Wysor v. Commonwealth, 6 Gratt. 711, 47 Va. 711.
75. OhiO-Shoemaker v. State, 12 Ohio 43.
Purpose
Purposes behind statutory requirement that grand juror be house·
holder are that grand jurors be actual members of community served
by grand jury, that they have experience of making important and
binding practical decisions of everyday living, and that they be capable
of making important decisions independent of family or relatives or
others.
Ind.-Stevens v. State, 354 N.E.2d 727, 265 Ind. 396, rehearing 357
N.E.2d 245, 265 Ind. 3%.
76. Tenn.-State v. Bryant, 10 Yerg. 527.
77. Ind.-Palmer v. State, 150 N.E. 917, 197 Ind. 625.
78. Ind.-Wills v. State, 69 Ind. 286.
79. Tenn.-State v. Bryant, 18 Tenn. 527, 10 Yerg. 527.
356
1111111.111111 J .
38A
utes.!
Ull
perS{
jury
physi
vice.
8
§ 27.
1
c
from s<
or prejl
Re
SUI
Lit
(

disqu:
partic
Granc
dice,sa
this eJ
80. Or.
SI. 28
82. Ari
83. 10\1
Neb.-P
84. N.I
85. S.C
86. Ari
reman
1023,
State (
and
U.S. 9
1236,
87. Ari
Source I
The s
circumstl
sanction
N.M.-SI
88. Ala.
89. Fla.
reheari
90. Md.
91. Ala.
Alaska-
Ga.-In!
C.J.S.
, is a necessary
y when, it is so
at doubtful
at common
y been held
uiring it, a
r or a free-
ding, and in
lification for
)lder
74
or a
,useholder,7&
ir.77 In the
IS a statute
confine the
f9
Ta.711.
juror be house-
mununity serd
important mill
they be capable
y or relatives
t7.
38A C.J.S.
utes.
SO
Under the Jury Selection and Service Act, a
person is not qualified to serve on a federal grand
jury if he is incapable, by reason of mental or
physical infirmity, to render satisfactory jury ser-
vice.
sl
§ 27. Interest, Bias, or'Prejudice
a. In general
b. Particular matters
c. Provision for automatic exclusion
a. In General
Under some statutes or rules, a person shall be disqualified
from serving as a grand juror in a particular case if he is biased
or prejudiced.
Research Note
General requirement that grand jury be impartial is considered
supra § 11.
Library References
Grand Jury e=>5, 15, 18.
Under some statutes or rules, a person shall be
disqualified from serving as a grand juror in a
particular case if he is biased or prejudiced.82
Grand jurors may be challenged for bias or preju-
dice,83 and there are some statutory provisions to
this effect.84 Indeed, it has been asserted generally
80. Or.-State v. Carlson, 62 P. 1016,39 Or. 19.
81. 28 U.S.CA § 1865(b)(4).
82. Ariz.-State v. Salazar, 557 P.2d 552, 27 Ariz.App. 620.
83. Iowa-State v. Gillick, 7 Oarke 287, 7 Iowa 287.
Neb.-Patrick v. State, 20 N.W. 121, 16 Neb. 330.
84. N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
85. S.C.-State v. Richardson, 146 S.E. 676, 149 S.c. 12l.
86. Ariz.-:-State v. Emery, 642 P.2d 838, 131 Ariz. 493, appeal after
remand 688 P.2d 175, 141 Ariz. 549-state v. Gretzler, 612 P.2d
1023, 126 Ariz. 60, appeal after remand State v. Superior Court of
State of Ariz., In and For Pima County, 627 P.2d 1081, 128 Ariz. 583
and 659 P.2d 1, 135 Ariz. 42, certiorari denied 103 S.Ct. 2444, 461
U.S. 971, 77 L.Ed.2d 1327, rehearing denied 104 S.Ct. 32, 463 U.S.
1236,77 L.Ed2d 1452.
87. Ariz.-:-State v. Salazar, 557 P.2d 552, 27 Ariz.App. 620.
Source of bias
The state of mind referred to in the statute must arise from
circumstances occurring outside or something heard outside without
sanction of oa!h.
N.M.-Stilte v. Raulie, 290 P. 789, 35 N.M. 135.
88. Ala.-:-Sheppard v. State, 10 So.2d 822, 243 Ala. 498.
89. Fla.-Lake v. State, 129 So. 827, 100 Fla. 373, affirmed on
rehearing 131 So. 147, 100 Fla. 373.
90. Md.-Coblentz v. State, 166 A 45, 164 Md. 558, 88 AL.R. 886.
91. Ala.-Sheppard v. State, 10 So.2d 822, 243 Ala. 498.
Alaska-U.S. v. Caldwell,8 Alaska 117.
Ga.-In re Hensley, 362 S.E.2d 432, 184 Ga.App. 625.
GRAND JURIES § 27
that defendant in a criminal prosecution is entitled
to the absolute impartiality of the grand jurors who
pass on the indictment.
85
The ultimate question is
whether the juror can base his decision solely on
the evidence presented to him and the law.
86
This
determination is largely committed to the discre-
tion of the trial court.
S7
On the other hand, it is held or stated that a
statute which defines the cases in which a grand
juror is incompetent and must not take part also
limits such cases;88 that no interest, except as
defined by statute, will so disqualify a member of a
grand jury as to vitiate an indictment returned;s9
that prejudice
90
or bias
9l
does not disqualify a
grand juror or render him incompetent; and that
interest in a particular prosecution other than a
direct pecuniary interest will not disqualify a grand
juror9
2
or be a ground of objection to an indictment
in the finding of which he participates.
93
An objection that a grand juror is incompetent,
by reason of interest, to act in a particular case
may be ineffective when it is made too late under
the governing statute,94 or when the juror did not
vote on the indictment.
95
Jury Selection and Service Act.
Under the Jury Selection and Service Act, a
person may be excluded from federal grand jury
Tenn.-Rippy v. State, 550 S.W.2d 636.
Functions of grand jury
The basic theory of functions of a grand jury does not reqnire that
grand jurors should be impartial and unbiased.
Ga.-Creamer v. State, 258 S.E.2d 212, 150 Ga.App. 458.
Not a legal qualification
(1) Freedom from personal bias is not a legal qualification for a
grand juror.
Ind.-Sparks v. State, 499 N.E.2d 738.
(2) Freedom from personal bias is not one of initial legal qualifica-
tions for grand juror.
Ind.-Stevens v. State, 354 N.E.2d 727, 265 Ind. 396, rehearing 357
N.E.2d 245, 265 Ind. 3%.
Not ground for challenge
U.S.-SChwartz v. U.S. Dept. of Justice, D.C.Pa., 494 F.Supp. 1268.
D.C.-Khaalis v. U.S., 408 A2d 313, certiorari denied Adam v. U.S.,
100 S.Ct. 1059,444 U.S. 1092, 62 L.Ed.2d 78l.
92. Alaska-U.S. v. Caldwell, 8 Alaska 117.
N.C.-State v. Oxendine, 278 S.E.2d 200, 303 N.C. 235.
93. Caldwell, 8 Alaska 117.
94. Tex.-Jones v. State, 147 S.W.2d 508, 141 Tex.Cr. 70-:-Staton v.
State, 248 S.W. 356, 93 Tex.Cr. 356.
95. U.S.-U.S. v. Lynch, D.C.La., 11 F.2d 298.
357
§ 27 GRAND JURIES
service by the court on the ground that such person
may be unable to render impartial jury service.
96
h. Particular Matters
It has been held that various matters concerning interest,
bias, or prejudice do not necessarily disqualify a person from
grand jury service, such as a relationship with a person involved
in the case.
It has been held that, in the absence of statutory
provision to the contrary,97 various matters con-
cerning interest, bias, or prejudice do not necessar-
ily disqualify a person from grand jury service,98
such as the fact that a person has originated a
complaint against the person accused of crime,99 or
is a witness for the prosecution,
1
or has unsuccess-
fully opposed accused as a candidate for public
office,
2
or has formed and expressed an opinion as
to the prisoner's guilt.
3
The same rule has been applied where the per-
son is related to or has some relationship with the
96. 28 U.S.c.A. § 1866(c)(2).
97. Alaska-U.S. v. Caldwell, 8 Alaska 117.
N.C.-State v. Pitt, 80 S.E. 1060, 166 N.C. 268.
98. Alaska-U.S. v. Caldwell, 8 Alaska 117.
Employment as jailer
Ala.-Kuenzel v. State, Cr.App., 577 So.2d 474, affirmed Ex parte
Kuenzel, 577 So.2d 531, certiorari denied 112 S.C!. 242, 502 U.S.
886,116 L.Ed.2d 197.
99. Alaska-U.S. v. Caldwell, 8 Alaska 117.
Mass.-In re Tucker, 8 Mass. 286.
1. Alaska-U.S. v. Caldwell, 8 Alaska 117.
Nev.-State v. Millain, 3 Nev. 409.
2. Ark.-Rice v. State, 161 S.W.2d 401, 204 Ark. 236.
3. Ill.-People v. Looney, 145 N.E. 365, 314 Ill. 150.
Nev.-State v. Williams, 129 P. 317, 35 Nev. 276.
4. Ala.-Sledge v. State, 93 So. 875, 208 Ala. 154.
Sisk v. State, 115 So. 766, 22 Ala.App. 368.
N.C.-State v. Oxendine, 278 S.E.2d 200, 303 N.C. 235.
Ohio-Zell v. State, 15 Ohio App. 446, 32 Ohio c.A. 385.
Knows injured person
Alaska-Nix v. State, App., 653 P.2d 1093.
Conn.-State v. Aillon, 521 A.2d 555, 202 Conn. 385.
S. Partner
(1) District attorney's law partner, who possessed no disqualifying
knowledge when grand jury was convened, was competent to serve as
member of grand jury.
Ala.-Eddings v. State, Cr.App., 443 So.2d 1308.
(2) Assistant district attorney's law partner was competent.
Ala.-Ervin v. State, Cr.App., 442 So.2d 123.
Spouse
Wife of assistant district attorney, who was also part-time employee
of district attorney's office, was competent to serve as member of grand
jury indicting defendant, though assistant district attorney was present
38A C.J.S.
injured person,4 a prosecutor,5 an investigator,6 a
witness,7 a jury commissioner,8 or defendant.
9
The same rule has been applied to a person who
has evinced a desire and purpose to enforce the law
against a particular kind of crime,10 or who has
strong feelings about crimes,l1 or has subscribed
funds for the purpose of legitimately suppressing a
particular violation of law.
12
The mere fact that a
person is a member of an association organized for
the purpose of aiding the public officers in the
maintenance of law and order and the suppression
of crime does not disqualify such person as a grand
juror.
I3
A grand juror need not be free from all previous
knowledge of the case 14 or even of knowledge of
the precise circumstances of the case.
I5
It has
been held that a person may serve as a grand juror
even if he was present at the crime scene,I6 or
served on a prior grand jury that indicted accused
for a different crime,I7 or is aware of accused's
at grand jury proceedings, where assistant district attorney did not
participate in presentation of cases and there was no discussion
between assistant district attorney and wife regarding any cause pend-
ing before grand jury.
Ala.--Cardwell v. State, Cr.App., 544 So.2d 987.
6. Fla.-Herman v. State, App., 396 So.2d 222, certiorari dismissed
402 So.2d 610, habeas corpus denied 744 F.Supp. 1128, affirmed 929
E2d 623.
7. Mich.-People v. Edmond, 273 N.W.2d 85, 86 Mich.App. 374.
8. Tex.-Rogers v. State, Cr.App., 774 S.W.2d 247, certiorari denied
110 S.C!. 519, 493 U.S. 984, 107 L.Ed.2d 520, denial of habeas
corpus affirmed Ex parte Rogers, 819 S. W.2d 533, rehearing denied,
habeas corpus denied 864 ESupp. 584, affirmed 70 F.3d 340,
certiorari denied 116 S.C!. 1881, 135 L.Ed.2d 176.
9. Husband of defendant's wife's sister
Husband of defendant's wife's sister is not brother-in-law to defen-
dant, and, even if he were, it would not constitute a reason for his not
serving as a grand juror.
Fla.-Cruce v. State, 100 So. 264, 87 Fla. 406.
10. Alaska-U.S. v. Caldwell, 8 Alaska 117.
11. Ariz.-State v. Salazar, 557 P.2d 552, 27 Ariz.App. 620.
12. Alaska-U.S. v. Caldwell, 8 Alaska 117.
13. Alaska-U.S. v. Caldwell, 8 Alaska 117.
Okl.-Fooshee v. State, 108 P. 554, 3 Okl.Cr. 666.
14. Me.-State v. Haberski, 449 A.2d 373, certiorari denied 103 S.C!.
823,459 U.S. 1174,74 L.Ed.2d 1019.
N.M.-Matter of Grand Jury Sandoval County, App., 750 P.2d 464,
106 N.M. 764-State v. Watkins, App., 590 P.2d 169, 92 N.M. 470.
15. N.M.-State v. Watkins, App., 590 P.2d 169, 92 N.M. 470.
16. Ind.-Sparks v. State, 499 N.E.2d 738.
17. Iowa-State v. Williams, 360 N.W.2d 782.
358
38A C.J.S.
investigator,6 a

,0 a person who
enforce the law
!,ID or who has
has subscribed
'f suppressing a
lere fact that a
n organized for
officers in the
;he suppression
rson as a grand
om all previous
f knowledge of
case.
15
It has
s a grand juror
me scene,I6 or
ldicted accused
·e of accused's
ict attorney did not
was no discussion
ling any cause pend-
certiorari dismissed
). 1128, affirmed 929
Mich.App. 374.
47, certiorari denied
0, denial of habeas
13, rehearing denied,
rmed 70 F.3d 340,
5.
:her-in-law to defen-
a reason for his not
App.620.
'ari denied 103 S.C!.
<\pp., 750 P.2d 464,
d 169, 92 N.M. 470.
12N.M.470.
38A C.J.S.
reputation in the community.18 An examining mag-
istrate or commissioner is not disqualified to act as
a grand juror on cases sent on by himself.19
There are some authorities which hold that the
fact that a grand juror has formed or expressed an
opinion as to the guilt or innocence of accused is a
sufficient ground of challenge.
2D
It would seem,
according to some of the authorities, that relation-
ship of a grand juror, by blood or marriage to the
prosecutor is a ground for challenge.
21
c. Provision for Automatic Exclusion
Various statutes or rules preclude persons with specified
types of interests in a case from serving as grand jurors in such
case.
Some statutes or rules provide that a witness
cannot be a grand juror.
22
The fact that the grand
jury which indicts a person for perjury and false
swearing was the same grand jury which heard the
allegedly perjurious statement does not violate
such a statute or rule.
22
Under a statute providing
that the -validity of a grand jury may be challenged
on the ground that a member thereof was a witness
against the person indicted, the term ''witness''
means a person called to give evidence regarding
matters under inquiry by the grand jury,24 and the
fact that the grand jury has previously returned
other indictments against a person does not render
the grand jurors witnesses against him.25
Judicial recognition is accorded statutes provid- .
ing that a grand juror connected by blood or mar-
riage with the person charged shall not be present
at, or take part in, the consideration of the
charge,26 or that he shall not participate in the
investigation of a public offense committed against
his person or property, or when he is prosecutor,27
and a statute declares it a ground of challenge that
a person summoned to serve as a grand juror is the
18. Ga.-Moss v. State, 297 S.E.2d 459, 250 Ga. 368.
19. U.S.-U.S. v. Belvin, c.C.Va., 46 F. 381.
20. Iowa-State v. Gillick, 7 Oarke 287, 7 Iowa 287.
21. S.C.-State v. Boyd, 34 S.E. 661, 56 S.c. 382.
22. Ariz.-Franzi v. Superior Court of Arizona In and For Pima
County, 679 P.2d 1043, 139 Ariz. 556.
Ground of challenge
Old.-Cowart v. State, 111 P. 672, 4 Old.Cr. 122.
23. Ariz.-Franzi v. Superior Court of Arizona In and For Pima
County, 679 P.2d 1043, 139 Ariz. 556.
24. N.M.-State v. Hogervorst, App., 566 P.2d 828, 90 N.M. 580,
certiorari denied 567 P.2d 485, 90 N.M. 636.
25. N.M.-State v. Hogervorst, App., 566 P.2d 828, 90 N.M. 580,
certiorari denied 567 P.2d 485, 90 N.M. 636.
GRAND JURIES § 29
prosecutor or complainant on any charge against
accused.
28
Previous formation and expression of an
unqualified opinion of guilt of accused is sometimes
expressly made a ground of challenge by statute.
29
§ 28. Knowledge of Language; Literacy
Disqualification to serve as a grand juror may arise, under
the statutes, from illiteracy or insufficient knowledge of the
language in which the proceedings are conducted to obtain a
clear understanding of what is said and done.
Library References
Grand Jury e->5.
One who lacks a sufficient knowledge of the
language in which the proceedings before the grand
jury are conducted to obtain a clear understanding
of what is said and done is not, under some stat-
utes, competent to serve as a grand juror.
3D
By
statute, ability to speak, read, and write the En-
glish language is sometimes made a necessary qual-
ification of grand jurors.
31
In the absence of a
statute so providing, a person is not disqualified
because he can read and write only a few words.
32
Under the Jury Selection and Service Act, a
person is not qualified to serve on a federal grand
jury if he is unable to read, write, and understand
the English language with a degree of proficiency
sufficient to fill out satisfactorily the juror qualifica-
tion form; 33 or is unable to speak the English
language.
34
§ 29. Prior Service as Juror
Whether prior service in the same capacity during a certain
period renders a person ineligible to serve as a grand juror
depends on statutory provisions.
Library References
Grand Jury e->5.
Effect will be accorded applicable statutes ren-
dering persons ineligible to serve as grand jurors
26. Ala.-Wilson v. State, 54 So. 572, 171 Ala. 25.
v. Maddox, 69 Tenn. 671, 1 Lea 671.
27. Ala.-Sheppard v. State, Ala., 10 So.2d 822, 243 Ala. 498.
28.· Tex.-Staton v. State, 248 S.W. 356, 93 Tex.Cr. 356.
29. Iowa-State v. Harris, 172 N.W. 942,186 Iowa 627.
30. U.S.-U.S. v. Benson, c.C.Cal., 31 F. 896, 12 Sawy. 477.
31. Iowa-State v. Greenland, 100 N.W. 341, 125 Iowa 141.
La.-State v. Hudgens, 179 So. 57, 189 La. 128.
Tex.-Ex parte Harris, 39 S.W.2d 883, 118 Tex.Cr. 154.
32. Miss.-Herring v. State, 374 So.2d 784.
33. 28 U.S.C.A. § 1865(b)(2).
34. 28 U.S.c.A. § 1865(b )(3).
359
§ 29 GRAND JURIES
who have served in that capacity within a certain
period.
35
However, such persons are not rendered incom-
petent by statutes which merely forbid their selec-
tion by the officers charged with the duty of select-
ing grand jurors.
36
Under a statute permitting service,37 or in the
absence of statute,38 prior service as a juror within
a prescribed period is not a disqualification. A
person may serve as a grand juror even if he has
previously served as a petit juror.
39
§ 30. Public Officers or Employees
The holding of a public office does not in the absence of
statute disqualify a person as a grand juror.
Library References
Grand Jury e->5.
In the absence of statutory enactment to the
contrary, the fact that a juror is a public officer
does not disqualify _him from serving as a grand
juror.
40
While statutes declaring specified public officers
incompetent to serve as grand jurors during their
terms of office will, when applicable, be accorded
effect,41 they are not applicable to other public
officers 42 or to persons wllo are not public offi-
cers.43
Under some statutes, all elected officers and
officials are incompetent to serve as grand jurors
during their terms ofoffice.
44
35. Cal.-People v. Quijada, 97 P. 689, 154 C. 243.
36. Minn.-State v. Cooley, 75 N.W. 729, 72 Minn. 476.
37. Ga.-Long v. State, 127 S.E. 842, 160 Ga. 292 answers to certified
questions conformed to 128 S.E. 784, 34 Ga.App. 124.
38. Or.-State v. Brown, 41 P. 1042, 28 Or. 147.
39. Or.-State v. Gortmaker, 668 P.2d 354, 295 Or. 505, certiorari
denied 104 S.Ct. 1416,465 U.S. 1066, 79 L.Ed.2d 742.
40. N.J.-State v. Ruffu, 150 A 249, 8 N.J. Misc. 392.
41. Fla.-Cawthon v. State, 156 So. 129, 115 Fla. 801-Lindsay v.
State, 122 So. 1, 97 Fla. 701.
42. Ga.-Narramore v. State, 351 S.E.2d 643, 181 Ga.App. 254,
certiorari granted 354 S.E.2d 160.
Miss.-Robinson v. State, 173 So. 451, 178 Miss. 568.
Va.-Webb v. Commonwealtb, 120 S.E. 155, 137 Va. 833.
43. U.S.-Johnson v. U.S., C.CAFla., 11 F.2d 606, certiorari denied
46 S.Ct. 488, 271 U.S. 675, 70 L.Ed. 1145.
44. Ga.-Hayes v. State, 226 S.E.2d 819, 138 GaApp. 666.
Elective office
Term "elective office," within statute providing that any person who
holds any elective office in state or local government is incompetent to
serve as a grand juror, is an office filled by citizens registered to vote
and voting at an election.
38A C.J.S.
Jury Selection and Service Act.
Under the Jury Selection and Service Act, the
following persons are barred from federal grand
jury service: members in active service in the
armed forces; members of fire or police depart-
ments; and public officers actively engaged in the
performance of official duties.
45
§ 31. Qualification as Elector or Voter
When so required by a constitutional or statutory provi.
sion, a grand juror must possess the qualifications of a voter or
elector.
Library References
Grand Jury e->5.
Under some constitutional or statutory provi-
sions, a grand juror need not have the qualifica-
tions of a voter or elector.46
Some constitutional or statutory provisions make
it essential that a grand juror shall have the qualifi-
cations of a voter or elector.
47
However, not all
qualified voters are eligible as grand jurors.
48
Un-
der a statute requiring grand jurors to be electors,
it is essential only that they should have the qualifi-
cations of an elector; a person need not have voted
or have his name on the poll books to be eligible,49
nor need he be a registered voter, where registra-
tion is considered only as evidence of existence of
qualification, and not as a qualification, to vote, 50
nor need he still live in the precinct where he is
Ga.-Ingram v. State, 323 S.E.2d 801, 253 Ga. 622, certiorari denied
105 S.Ct. 3538, 473 U.S. 911, 87 L.Ed.2d 661, rehearing denied 106
S.Ct. 20, 473 U.S. 927, 87 L.Ed.2d 697, denial of habeas corpus
affirmed 26 F.3d 1047, rehearing and rehearing en banc denied 36
F.3d 96, certiorari denied 115 S.Ct. 1137, 130 L.Ed.2d 1097, rehear-
ing denied 115 S.Ct. 1444, 131 L.Ed.2d 323.
45. 28 U.S.CA § 1863(b)(6).
Public officer
"Public officer" means a person who is either elected to public office
or directly appointed by a person elected to public office.
28 U.S.CA § 1869(i).
46. Va.-Waller v. Commonwealth, 16 S.E.2d 808, 178 Va. 294,
certiorari denied Waller v. Youell, 62 S.Ct. 1106, 316 U.S. 679, 86
L.Ed. 1752, rehearing denied 62 S.Ct. 1289, 316 U.S. 712, 86 L.Ed.
1777, motion denied 62 S.Ct. 1285, 316 U.S. 648, 86 L.Ed. 1732.
47. S.C.-State v. Rector, 155 S.E. 385, 158 S.C. 212.
Tex.-Harper v. State, 234 S.W. 909, 90 Tex.Cr. 252.
48. Tex.-Harper v. State, 234 S.W. 909, 90 Tex.Cr. 252.
49. Iowa--State v. Harris, 97 N.W. 1093, 122 Iowa 78.
50. Del.-State v. Lyons, 5 A2d 495, 1 Terry 77, 40 Del. 77.
N.M.-State v. Chama Land & Cattle Co., App., 805 P.2d 86, 111
N.M. 317, certiorari denied' 804 P.2d 1081,111 N.M. 262.
360
A. C.J.S.
e Act, the
eral grand
ice in the
Ice depart-
Iged in the
er
atutory provi·
; of a voter or
tory provi-
Ie qualifica-
isions make
i the qualifi-
ver, not all
rors.48 Un-
'be electors,
~ the qualifi-
t have voted
be eligible,49
~ r e registra-
existence of
n, to vote,50
where he is
certiorari denied
aring denied 106
)f habeas corpus
n banc denied 36
1.2d 1097, rehear-
ed to public office
[ice.
08, 178 Va. 294,
316 U.S. 679, 86
J.S. 712, 86 L.Ed.
8, 86 L.Ed. 1732.
2.
. 252.
78.
IDel. 77.
805 P.2d 86, 111
M.262.
38A C.J.8.
registered.
51
Under some constitutional provisions,
however, a grand juror must be a legally 52 regis-
tered elector.53
A requirement that jurors shall be selected from
the class of voters called property voters has been
held not to require that one having the qualifica-
tions of a property voter at the time of his selection
continue to possess them after that time.54
§ 32. Religious or Political Beliefs and Alli-
ances
The qualifications of a grand juror are not affected by his
connection or lack of connection with a political or religious
organization; and the same is true as to the effect of his religious
beliefs.
Library References
Grand Jury €=>5.
A grand jury should be selected with a view to
the qualifications prescribed by law, without inqui-
ry whether the individuals selected do or do not
belong to any particular society, sect, or denomina-
tion, social, benevolent, political, or religious. 55
Neither religious beliefs nor church adhesion
56
nor membership in, or affiliation with, a political
party,57 affects the qualifications of a grand juror.
§ 33. Residence
To be qualified as a grand juror, a person must have the
required residence and, under some statutes, he must be a resi-
dent for a prescribed length of time preceding the service.
Library References
Grand Jury €=>5.
A person who is not a resident of the state is,
under the statutes, incompetent as a grand juror.
58
Under some statutes, grand jurors must be resi-
dents of the state for a particular length of time
preceding their service. 59
51. N.M.--state v. Chama Land & Cattle Co., App., 805 P.2d 86, 111
N.M. 317, certiorari denied 804 P.2d 1081,111 N.M. 262.
52. S.C.--state v. Bibbs, 6 S.E.2d 276, 192 S.c. 231.
53. S.C.--state v. Rector, 155 S.E. 385, 158 S.c. 212.
54. U.S.-U.S. v. Gradwell, D.C.R.1. & W.Va., 227 F. 243.
55. N.y . ..:....People v. Jewett, 3 Wend. 314.
56. U.S.-U.S. v. Eagan, C.C.Mo., 30 F. 608.
57. U.S.-U.S. v. Eagan, C.C.Mo., 30 F. 608.
58. Fla.-Cotton v. State, 95 So. 668, 35 Fla. 197 .
59. Wis.-Lask v. U.S., 1 Pinn. 77.
60. Conn.--state v. Ham\in, 47 Conn. 95.
61. Fla.-Cotton v. State, 95 So. 668, 85 Fla. 197.
La.--state v. Morris, 171 So. 437, 185 La. 1037.
GRAND JURIES § 34
At common law, a grand juror is required to be a
resident of the county. 60 The same qualification is
required by many statuteS.
61
Some statutes re-
quire grand jurors to be residents of the county for
a particular l e n g t ~ of time. preceding their service.
62
Absence on temporary business with no intention of
abandoning his residence does not disqualify a
grand juror.
63
A grand juror's qualification as to residence must
be determined by his status at the time of his
service.64 He is not disqualified because he moves
out of the county after his impaneling.
55
It is not
sufficient that he was qualified when selected, if he'
removed to another county before the grand jury
was impaneled.
66
However, it is said that disquali-
fication of a grand juror resulting from his depar-
ture permanently from the state exists only from
the time it becomes known to the COurt.
67
Jury Selection and Service Act.
Under the Jury Selection and Service Act, a
person is not qualified to serve on a federal grand
jury if he has not resided for a period of one year
within the federal judicial district.
66
§ 34. Taxpayer
Whether assessment for, or payment of, taxes, or liability
to taxation, is necessary to qualify. a person as a grand juror
depends on statutory provisions.
Library References
Grand Jury €=>5.
In the absence of statutory requirement, grand
jurors need not be taxpayers, if otherwise quali-
fied.
69
Effect will be accorded to statutes, in force at the
time, requiring grand jurors to be taxpayers; 70
taxable persons; 71 . persons not in default in the
62. La.--state v. Morris, 171 So. 437, 185 La. 1037.
63. La.--state v. Wimby, 43 So. 984, 119 La. 139.
N.M.--state v. Watkins, App., 590 P.2d 169, 92 N.M. 470.
64. N.C.--state v. Wilcox, 10 S.E. 453, 104 N.C. 847.
65. Tex.-Howard v. State, App. 9 Dist., 704 S.W.2d 575.
66. N.C.--state v. Wilcox, 10 S.E. 453, 104 N.C. 847.
67. La.--state v. Tolett, 141 So. 57, 174 La. 553.
68. 28 U.S.CA § 1865(b )(1).
69. R.I.--state v. Rife, 30 A 467, 18 R.1. 596.
70. Mont.-Territory v. Harding, 12 P. 750, 6 Mont. 323.
71. Or.--state v. Carlson, 62 P. 1016, 39 Or. 19.
361
§ 34 GRAND JURIES
payment of taxes; 72 or persons assessed on the
last assessment roll of the county.73 So, also, a
statute removing in certain cases the disqualifica-
tion of grand jurors based on failure to pay taxes
for the preceding year will, when applicable, be
accorded effect.74
Some statutes providing that jurors shall be se-
lected from persons assessed on the assessment
roll are deemed to relate merely to the mode of
38A C.J.S.
selecting jurors and not to apply to the qualifica-
tions of a grand juror.
75
A grand juror need not have paid his taxes to
qualify under a constitutional provision requiring a
juror to be a qualified elector, where a qualified
elector is a registered elector and payment of taxes
is made a condition only for voting and not for
registration.
76
C. EXEMPTIONS
§ 35. In General
A statutory exemption from service on a grand jury is a
privilege which a prospective juror may claim or waive.
Research Note
Constitutional prohibition on discrimination and fair cross sec-
tion requirement as affecting constitutionality of exemption are
treated supra § 17.
Library References
Grand Jury e->6.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Guide following Preface.
Statutory provisions are controlling in respect of
exemption from service on grand juries by persons
of designated classes,77 such as public officers,7S and
persons who have reached a specified age limit,79 or
have served as jurors within a specified time, so or
are engaged in specified occupations.
St
Such statutory provisions are for the benefit of
the persons exempted
82
and do not have the effect
72. N.C.-State v. Perry, 29 S.E. 384, 122 N.e. 1018.
73. CaL-Kitts v. Superior Court of Nevada County, 90 P. 977,5 e.A
462.
74. U.S.-Davis v. U.S., e.C.A.N.e., 49 F.2d 269, certiorari denied 51
S.C!. 657, 283 U.S. 859, 75 L.Ed. 1465.
75. U.S.--Gridley v. U.S., e.e.AMicb., 44 F.2d 716, certiorari denied
51 S.C!. 351, 283 U.S. 827, 75 L.Ed. 1441-U.S. v. Mitchell, e.e.Or.,
136 F. 896.
76. S.e.-State v. Smalls, 159 S.E. 555, 161 S.C. 197.
77. Ill.-People v. Ueber, 192 N.E. 331, 357 Ill. 423.
78. Ohio-Koch v. State, 32 Ohio St. 353.
79. IlL-People v. Coffman, 170 N.E. 227, 3381ll. 367.
SO. La.-State v. Hopkins, 40 So. 166, 115 La. 786.
81. N.Y.-People v. Shearer, 7 N.Y. S.2d 152, 169 Misc. 69.
Attorney
of absolutely disqualifying them,83 but merely ex-
tend to them a privilege or favor
84
which they may
claim
85
or waive.
86
Hence, as a general rule, the
fact that a grand juror may be exempt is no ground
for challenge,S7 or for attacking an indictment.
88
The court has no right, on its own motion, to
discharge prospective grand jurors as disqualified
because they are exempt. S9
The fact that a person has a fixed scrupulous or
religious objection to the discharge of the duties of
a grand juror has been held not to be a sufficient
ground for exempting him from service, in the
absence of a statute exempting such persons.
90
§ 36. Federal Grand Jury
In the case of federal grand juries, volunteer safety person-
nel shall be excused from jury service upon individual request.
Library References
Grand Jury e->6.
certiorari denied Ingram v. Thomas, 115 S.C!. 1137, 130 L.Ed.2d
1097, rehearing denied 115 S.C!. 1444, 131 L.Ed.2d 323.
82. Alaska-U.S. v. Caldwell, 8 Alaska 117.
83. 1ll.-People v. Coffman, 170 N.E. 227, 338 1ll. 367.
N.Y.-People v. Shearer, 7 N.Y.S.2d 152, 169 Misc. 69.
84. 1ll.-People v. Coffman, 170 N.E. 227, 3381ll. 367.
N.Y.-People v. Shearer, 7 N.Y.S.2d 152, 169 Misc. 69.
85. 1ll.-People v. Coffman, 170 N.E. 227, 3381ll. 367.
N.Y.-People v. Shearer, 7 N.Y.S.2d 152, 169 Misc. 69.
86. N.Y.-People v. Sbearer, 7 N.Y.S.2d 152, 169 Misc. 69.
87. Ga.-Ingram v. State, 323 S.E.2d 801, 253 Ga. 622, certiorari
denied 105 S.C!. 3538, 473 U.S. 911, 87 L.Ed.2d 661, rehearing
denied 106 S.C!. 20, 473 U.S. 927, 87 L.Ed.2d. 697, denial of habeas
corpus affirmed Ingram v. Zant, 26 F.3d 1047, rehearing denied 36
F.3d 96, certiorari denied Ingram v. Thomas, 115 S.C!. 1137, 130
L.Ed.2d 1097, rehearing denied 115 S.C!. 1444, 131 L.Ed.2d 323.
Iowa-State v. Pell, 119 N.W. 154, 140 Iowa 655.
88. Mass.-Commonwealth v. Hayden, 40 N.E. 846, 163 Mass. 453.
Ga.-Ingram v. State, 323 S.E.2d 80l; 253 Ga. 622, certiorari denied
105 S.C!. 3538, 473 U.S. 911, 87 L.Ed.2d ~ 1 , rehearing denied 106
S.C!. 20, 473 U.S. 927, 87 L.Ed.2d 697, denial of habeas corpus 89. La.-State v. Smith, 83 So. 264, 145 La. 1091.
affirmed Ingram v. Zant, 26 F.3d 1047, rehearing denied 36 F.3d 96, 90. S.e.-State v. Willson, 13 S.e.L. 393.
362
!\. C.J.S.
~ qualifica-
.s taxes to
'equiring a
t qualified
nt of taxes
Id not for
nerely ex-
. they may
I rule, the
no ground
dictment.
88
motion, to
lisqualified
upulous or
e duties of
L sufficient
ce, in the
persons.
90
;afety person-
idual request.
" 130 L.Ed.2d
3.
69.
622, certiorari
661, rehearing
:nial of habeas
ring denied 36
:.C!. 1137, 130
L.Ed.2d 323.
3 Mass. 453.
38A C.J.S.
Under the Jury Selection and Service Act, in the
case of federal grand juries, volunteer safety per-
sonnel shall be excused from jury service upon
individual request.
91
A federal district court's plan
for random jury selection shall specify those other
groups of persons or occupational classes whose
members shall, on individual request, be excused;
but such groups or classes shall be excused only if
GRAND JURIES § 37
the court finds, and the plan states, that jury
service by such class or group would entail undue
hardship or extreme inconvenience to the members
thereof, and excuse of members thereof would not
be inconsistent with statutory policies.
92
The Act's
bar on service by certain public officers and em-
ployees is treated supra § 30.
D. SELECTION AND DRAWING
§ 37. In General
At common law the mode of selecting grand jurors was
within the sheriffs discretion, but the subject is now generally
regulated by statute. Substantial compliance with the statutes is
usually sufficient, and mere irregularities are not fatal, particu-
larly where the statutes are considered directory rather than
mandatory.
Research Note
Prohibition on discrimination and fair cross section require-
ment, including Jury Selection and Service Act provisions rele-
vant thereto, are treated supra §§ 13-19.
Library References
Grand Jury 00>8.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Gnide following Preface.
Constitutional provisions generally do not re-
quire that grand jurors be selected in any particu-
lar manner.93
91. 28 U.S.C.A. § 1863(b)(5)(B).
92. 28 U.S.C.A. § 1863(b)(5)(A).
93. Conn.-State v. Simms, 518 A2d 35, 201 Conn. 395.
94. Fla.-Hicks v. State, 120 So. 330, 97 Fla. 199.
Ind.-.Randolph v. State, 162 N.E. 656, 200 Ind. 210.
N.D.-State v. Walla, 2:04 N.W. 211, 57 N.D. 726.
95. Ariz.-Kingsbury v. State, 232 P. 887, 27 Ariz. 289, modified on
rehearing on other grounds 235 P. 140, 28 Ariz. 86.
Fla.-Taylor v. State, 158 So. 437, 117 Fla. 706.
Ind.-Randolph v. State, 162 N.E. 656, 200 Ind. 210.
La.-State ex reI. De Armas v. Platt, 192 So. 659, 193 La. 928.
Neb.-Pinn v. State, 186 N.W. 544, 107 Neb. 417.
N.C.-State v. Peacock, 16 S.E.2d 452, 220 N.C. 63.
S.C.-State v. Pridmore, 161 S.E. 335, 163 S.c. 73-State v. WeDs, 161
S.E. 177, 162 S.c. 509.
Tex.-Terrell v. State, 139 S.W.2d 108, 139 Tex.Cr. 1 3 ~ k r e l l v.
State, 117 S.W.2d 1105, 135 Tex.Cr. 218--Powell v. State, 269 S.W.
443, 99 Tex.Cr. 276.
Va.-McDaniel v. Commonwealth, 181 S.E. 534, 165 Va. 709.
Purpose of statutes
(1) Statutes regulating the selection of grand jurors are enacted for
public reasons rather than for the benefit of any individual; they are
intended to facilitate the selection of a jury, to equalize the burden of
jury service, and to preclude the packing of juries or the selection of
At common law, grand jurors were selected by
the sheriff, and the manner of their selection was a
matter within his discretion.
94
At present, the
mode . of selecting a grand jury generally is a
matter of statutory requirement,95 the subject be-
ing one which the legislature is authorized to regu-
late by statute in the absence of constitutional
provision prescribing or proscribing any particular
method of selection.
96
Statutes concerning the selection and drawing of
grand jurors must be complied with,97 and may not
be arbitrarily ignored; 98 and generally is essential
to the existence of a legal grand jury that there be
at least a substantial compliance with the mode of
selection prescribed by statute.
99
A substantial
compliance is generally considered sufficient, how-
ever/ and technical irregularities not amounting to
jurors with reference to particular matters and causes likely to be
submitted to them for determination.
N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
(2) The general purpose of these statutes is to expedite and not to
hamper the administration of justice.
W.Va.-State v. Muncey, 135 S.E. 594, 102 W.Va. 462.
96. N.C.-State v. Peacock, 16 S.E.2d 452, 220 N.C. 63.
97. Ky.-Kitchen v. Commonwealth, 122 S.W.2d 121, 275 Ky. 564-
Miller v. Commonwealth, 42 S.W.2d 518, 240 Ky. 346.
98. Tex.-Parks v. State, 117 S.W.2d 797, 135 Tex.Cr. 260-Sanchez
v. State, 252 S.W. 548, 94 Tex.Cr. 606.
99. Fla.-Hicks v. State, 120 So. 330, 97 Fla. 199.
Ill.-People v. Mack, 11 N.E.2d 965, 367 Ill. 481.
Ind.-State ex reI. Burns v. Sharp, 393 N.E.2d 127, 271 Ind. 344.
Ky.-Bain v. Commonwealth, 140 S.W.2d 612, 283 Ky. 18.
Tex.-Gentry v. State, Cr.App., 770 S.W.2d 780, certiorari denied 109
S.C!. 2458, 490 U.S. 1102, 104 L.Ed.2d 1013.
1. Ala.-Brewer v. State, Cr.App., 440 So.2d 1155, appeal after
remand 500 So.2d 482.
Ill.-People v. Lieber, 192 N.E. 331, 357 Ill. 423.
Iowa-State v. Dohrn, 259 N.W.2d 801.
Okl.-Smith v. State, 287 P. 1103, 46 Okl.Cr. 160.
363
§ 37 GRAND JURIES
a substantial departure from the method pre-
scribed do not render a grand jury illegal and
incompetent,
2
at least where it does not appear that
accused has been prejudiced in any way,3 or that
any of the grand jurors was incompetent or in any
way disqualified.
4
An irregularity is considered
fatal where it deprives defendant of some substan-
tial right5 or is so gross, and so at variance with
the strict mandate of the law, as to amount to a
wrong per se.
6
Under some statutes, no objection to any irregu-
larity in the selection of a grand jury will prevail
unless the irregularity amounts to corruption.
7
Even under such statutes, however, proceedings for
selecting a grand jury may be vitiated by the
participation therein of a person who is not a jury
cOlnmissioner, who has no authority so to partici-
pate, and whose acts are null and void.
s
Where the
departures from the mode of selection prescribed
by statute which may affect the legal existence or
competency of the grand jury are expressly enu-
merated or restricted by statute, there is a legisla-
tive determination, which in the absence of consti-
tutional violation must be followed by the courts,
that only such departures constitute an invasion of
the substantial rights of accused,9 the object of such
statutes being to eliminate technical objections and
2. U.S.-U.S. v. McOure, D.C.Pa., 4 F.Supp. 668.
Ind.-State ex reI. Burns v. Sharp, 393 N.E.2d 127, 271 Ind. 344-
Weer v. State, 36 N.E.2d 787, 219 Ind. 217, rehearing denied 37
N.E.2d 537, 219 Ind. 217.
La.-State v. Brantley, 143 So. 46, 175 La. 192, followed in State v.
Chandler, 143 So. 47, 175 La. 197.
Tenn.-State v. Wiseman, CrApp., 643 S.W.2d 354.
Tex.-Gentry v. State, CrApp., 770 S.W.2d 780, certiorari denied 109
S.C!. 2458, 490 U.S. 1102, 104 L.Ed.2d 1013.
3. U.S.-U.S. v. Glasser, C.CAlll., 116 F.2d 690, modified on other
grounds 62 S.C!. 457, 315 U.S. 60, 86 L.Ed. 680, rehearing denied
Kretske v. U.S., 62 S.C!. 629, 315 U.S. 827, 86 L.Ed. 1222 and Roth
v. U.S., 62 S.C!. 637, 315 U.S. 827, 86 L.Ed. 1222.
III.-People v. lieber, 192 N.R 331, 357 III. 423.
Miss.-Nelson v. State, 133 So. 248, 160 Miss. 401.
Wis.-Petition of Salen, 286 N.W. 5, 231 Wis. 489.
Infringement of substantial rights necessary
Iowa-State v. Dohrn, 259 N.W.2d 801.
Prejudice not presumed
Iowa-State v. Dohm, 259 N.W.2d 801.
4. U.S.-U.S. v. Glasser, C.C.AIII., 116 F.2d 690, modified on other
grounds 62 S.C!. 457, 315 U.S. 60, 86 L.Ed. 680, rehearing denied
Kretske v. U.S., 62 S.C!. 629, 315 U.S. 827, 86 L.Ed. 1222 and Roth
v. U.S., 62 S.C!. 637, 315 U.S. 827, 86 L.Ed. 1222.
Miss.-Nelson v. State, 133 So. 248, 160 Miss. 401.
5. OId.-Gravitt.¥...State; 279 P. 968, 44 OId.Cr. 45.
6. La.-State v. Kifer, 173 So. 169, 186 La. 674, 110 AL.R. 1017.
38A C.J.S.
permit a trial on the merits, so far as constitutional
limitations allow.
10
Noncompliance with statutes prescribing the
manner of selecting grand jurors may be waived by
accused by his failure to make proper objection at
the proper timeY However, objection to the legal-
ity of a grand jury need not be made in limine
where some constitutional guaranty has been in-
vaded, or where there has been an arbitrary disre-
gard of the express command of a statute prescrib-
ing the manner of selecting grand jurors.I2
The officials charged with the drawing or selec-
tion of the grand jury are sometimes vested with a
wide discretion in the selection of grand jurors and
the determination of their fitness.
13
The court has
no right to tell duly constituted jury commissioners .
how they shall discharge the duties and responsibil-
ities imposed on them by the law; 14 it has power
only to declare their actions null and void under
circumstances of malfeasance or misfeasance.
15
Under some statutes, the major requirement for
selection of a grand jury should be that the system
of selection is not arbitrary and that complete
impartiality should be sought.
I6
Statutes as mandatory or directory.
A statute providing for the selection of a grand
jury is directory when a departure from the meth-
7. Ala.-Mullins v. State, 130 So. 527, 24 Ala.App. 78, certiorari
denied 130 So. 530, 222 Ala. 9.
Kan.-State v. Millhaubt, 61 P.2d 1356, 144 Kan. 574, certiorari denied
57 S.C!. 931, 301 U.S. 701, 81 L.Ed. 1356, rehearing denied 57 S.C!.
5, 302 U.S. 773, 82 L.Ed. 599.
8. La.-State v. Taylor, 10 So. 203, 43 LaAun. 1131.
9. N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
10. N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
11. Ky.-Bain v. Commonwealth, 140 S.W.2d 612, 283 Ky. 18.
Failure to object before return of indictment
Where defendant was arrested and gave bond before indictment was
returned, he should have objected to grand jurors because of alleged
irregularity in drawing names of grand jurors, before return of indict-
ment.
Ga.-Burns v. State, 11 S.E.2d 350, 191 Ga. 60.
U. Tex.-Haile v. State, 95 S.W.2d 708, 131 Tex.Cr. 17.
13. U.S.-U.S. v. Ballard, D.C.Cal., 35 F.Supp. 105.
La.-State v. Pierre, 3 So.2d 895, 198 La. 619, certiorari denied 62
S.C!. 186, 314 U.S. 676, 86 L.Ed. 541.
Tex.-Hamilton v. State, 150 S.W.2d 395, 141 Tex.Cr. 614, certiorari
denied 62 S.C!. 117, 314 U.S. 609, 86 L.Ed. 490.
14. U.S.-U.S. v. McClure, D.C.Pa., 4 F.Supp. 668.
Tex.-Davis v. State, 288 S.W. 456, 105 Tex.Cr. 359.
15. U.S.-U.S. v. McClure, D.C.Pa., 4 F.Supp. 668.
16. Ind.-Wireman v. State, 432 N.E.2d 1343, certiorari denied 103
S.C!. 350, 459 U.S. 992, 74 L.Ed.2d 389.
364
•• iMiJ. _rtl.··· ,a
,.
8A C.J.S.
onstitutional
icribing the
)e waived by
objection at
to the legal-
Ie in limine
las been in-
litrary disre-
lIte prescrib-
·S.12
ing or selec-
'ested with a
d jurors and
he court has
rmmissioners .
I responsibil-
it has power
I void under
risfeasance.
15
Ilirement for
~ t the system
Lat complete
n of a grand
,m the meth-
pp. 78, certiorari
, certiorari denied
19 denied 57 S.O.
6.
:83 Ky. 18.
lIe indictment was
Jecause of alleged
e return of indict-
·.17.
rtiorari denied 62
Cr. 614, certiorari
tiorari denied 103
38A C.J.S.
od prescribed therein does not deprive the party
challenging the regularity of the selection of rights
granted to him by other statutes or by constitution-
al provisions.
17
Such a statute is mandatory when
its observance is required in order to prevent
fraud, unjust prosecutions, or an invasion of the
rights of citizens given them by other statutes or
by constitutional provisions.
18
A statute providing
that the names of jurors shall be placed in a sealed
envelope and drawn by lot from the envelope has
been held mandatory, and is not complied with by
drawing the names from an open bOx.
19
Provisions
respecting the drawing and listing of grand jurors
are of course directory where the governing statute
expressly so provides; 20 but such provisions are
intended to cover cases where there has been an
attempt to follow the statute, and have no applica-
tion where there has been no attempt whatever to
comply with the statute, but, on the contrary, a
total departure therefrom.
21
Statutes which are directory only should never-
theless be followed; 22 but where the method pre-
scribed for selecting grand jurors is directory
merely, a grand jury, although selected or drawn in
an irregular or informal mode, must be esteemed
legal and competent to perform all the duties of
such a body,23 at least if disqualified persons have
not been placed on the jury,24 and no prejudice
appears.
25
Effect of death of grand juror.
The death of a grand juror is presumed to oper-
ate iinpartially, and a jury list legally selected is
not rendered illegal because of such death.26
§ 38. Notice and Time of Selection
Although the various acts connected with the selection of a
grand jury should be performed at the times specified in the
17. Fla.-:<Jray v. State, 197 So. 333, 143 Fla. 588.
18. Fla.-Gray v. State, 197 So. 333, 143 Fla. 588.
19. La.-State v. Kifer, 173 So. 169, 186 La. 674, 110 AL.R. 1017.
20. Miss.-Atkinson v. State, 101 So. 490, 137 Miss. 42
21. Miss.-E\lis v. State, 107 So. 757, 142 Miss. 468.
22. W.Va.-State v. Muncey, 135 S.E. 594, 102 W.Va. 462.
23. Ind.-Anderson v. State, 32 N.E.2d 705, 218 Ind. 299.
N.C.-State v. Mallard, 114 S.B. 17, 184 N.C. 667.
24. Ala.-Pickens v. State, 22 So. 551, 115 Ala. 42.
N.C.-State v. Paramore, 60 S.E. 502, 146 N.C. 604.
25. m.-People v. Ueber, 192 N.E. 331, 357 m. 423.
N.C.-State v. Mallard, 114 S.E. 17, 184 N.C. 667.
Okl.-State v. Childers, 252 P. 6, 122 Oklo 64.
W.Va.-State v. Muncey, 135 S.E. 594, 102 W.Va. 462.
26. U.S.-U.S. V. Rondeau, C.C.La., 16 F. 109, 4 Woods 185.
27. Iowa-State V. Burris, 190 N.W. 38, 194 Iowa 628.
GRAND JURIES § 38
statute, the failure to do so does not generally vitiate the action
of the grand jury. Notice of the drawing must be given as
prescribed by statute.
Library References
Grand Jury e->8.
The time for performing the various acts con-
nected with the selection and drawing of a grand
jury,27 as, for example, the time for drawing the
panel,28 placing the names in the jury box,29 or
selecting additional names,30 depends on the terms
of the governing statutes. Statutory provisions of
this character have generally been held to be direc-
tory merely, so that failure to follow them strictly
will not vitiate the action of the grand jury.31 The
failure of any officer to perform the duties required
of him within the time specified in no way invali-
dates the selecting and drawing of grand jurors
where statutes in effect so provide.
32
Generally, all grand jurors need not be diawn at
the same time.
33
Notice of the meeting at which the drawing is to
be made must be given to the officers who are to
make the drawing, where statutes so prescribe; 34
and under some statutes it is held that such notice
must be in writing.
as
The notice must be served on
those officers who in the particular instance consti-
tute the drawing board,36 and, where an officer is
designated to serve in the event that another is
disqualified, the notice is to be served on the officer
who is to participate in the drawing and not on the
one who is disqualified.
37
Absence of notice has
been considered immaterial where the officers to be
notified were present and performed their duties,36
or where it is not shown that the jurors selected
28. Ala.-Mullins V. State, 130 So. 527, 24 Ala.App. 78, certiorari
denied 130 So. 530, 222 Ala. 9.
29. Ind.-Randolph V. State, 162 N.E. 656, 200 Ind. 210.
30. Wis.-State v. Wescott, 217 N.W. 283, 194 Wis. 410.
~ Iowa-State v. Burris, 190 N.W. 38, 194 Iowa 628.
Tex . .:c..King V. State, 234 S.W. 1107, 90 Tex.Cr. 289.
32. Wash.-State v. Krug, 41 P. 126, 12 Wash. 288, error dismissed 17
S.O. 995, 164 U.S. 704,41 L.Ed. 1183.
33. Or.-State V. Odiorne, 683 P.2d 1380, 68 Or.App. 891, review
denied 690 P.2d 506, 298 Or. 150.
34. S.D.-State v. Johnson, 21(j N.W. 350, 50 S.D. 388.
35. S.D.-State V. Fellows, 207 N.W. 417, 49 S.D. 481.
36. S.D.-State v. Johnson, 210 N.W. 350, 50 S.D. 388.
37. S.D.-State V. Johnson, 210 N.W. 350, 50 S.D. 388.
38. Iowa-State v. Hassan, 128 N.W. 960, 149 Iowa 518.
365
§ 38 GRAND JURIES
were not otherwise qualified to serve.
39
§ 39. Size of Jury Panel
The size of the jury panel depends on the terms of the
applicable statutes. Such statutes must be followed, and depar-
tures therefrom have in some cases been held fatal to the action
ofthe grand jury.
Library References
Grand Jury 0=>8.
The number of names of prospective grand ju-
rors to be placed in the jury box, or on the list or
panel, depends on the provisions of the governing
statutes.
40
The drawing of a smaller number than the stat-
ute requires has been held to be a material depar-
ture from the mode of selection prescribed by
statute and fatal to the validity and competency of
a grand jury subsequently· impaneled from the
names drawn.
41
Where statutes expressly provide
for the selection of a panel consisting of a designat-
ed number of grand jurors, and a smaller number
is selected, the officers charged with the selection
of grand jurors may at a subsequent meeting prop-
erly treat the panel so selected as a nullity, and
proceed to select a panel consisting of the required
number.42 Jury commissioners may not strike
from the venire list, and remove from the jury box,
the names of jurors without replacing them, or at
least making a bona fide effort to replace them, by
an equal number of qualified jurors sufficient to
make up the required number of prospective grand
jurors.
43
It has been held fatal that more names were
drawn from the jury box than directed by statute 44
or that more names were placed in the box than
were authorized by order of a judge acting under a
statute giving him the right to order such addition-
39. Ohicr-State v. Sublett, 436 N.E.2d 1376, 70 Ohio App.2d 252, 24
O.0.3d356.
40. lli.-People v. Price, 20 N.E.2d 61, 371 lli. 137, certiorari denied
Price v. People of State of Illinois, 60 S.Ct. 94, 308 U.S. 551, 84
L.Ed.463.
La.-State v. Brantley, 143 So. 46, 175 La. 192.
41. Fla.-Keech v. State, 15 Fla. 591-Gladden v. State, 12 Fla 562.
42. IIl.-People v. Routson, 188 N.E. 883, 354 lli. 573.
43. La.-State v. Brantley, 143 So. 46, 175 La. 192.
44. Miss.-Leathers v. State, 26 Miss. 73.
45. Fla.-Slayton v. State, 141 So. 875, 105 Fla. 586.
46. Ill.-People v. Lieber, 192 N.E. 331, 357 lli. 423.
Wis.-State v. Wescott, 217 N.W. 283, 194 Wis. 410.
47. Ala.-Stevenson v. State, 41 So. 526, 148 Ala. 663.
38A C.J.8 ..
al names to be placed in the jury box as he deems
needful.
45
Under some statutes, the fact that more or fewer
names were drawn on the panel than the statutes
prescribed is immaterial, or at least is not fataI.46
Objection cannot be taken that more names were
drawn on the panel from which a grand jury was
subsequently selected than the statute directed
where by statute no objection going to the forma-
tion of the grand jury can be taken except that the
names were not drawn in the presence of the
officers designated by law.
47
It has been held not
improper practice to draw alternates for the grand
jury consisting of persons in excess of the maxi-
mum number of persons permitted to serve as
grand jurors.
48
In the absence of statute, the number of names
of prospective grand jurors to be placed in the jury
box may properly be left to the discretion of judges
of courts of record, evidenced by rules adopted for
that purpose.
49
§ 40. By Whom Selected and Drawn
Grand jurors should be selected only by the officers desig-
nated by statute to perform such duty. A grand jury selected by
de facto officers, or by officers who have failed to comply with
directory provisions as to taking an oath, is generally considered
competent to act.
Library References
Grand Jury 0=>7, 8;
Grand jurors should be selected and drawn by
the officer or officers designated by statute to
perform such duty.50 A grand jury selected or
drawn by a person or persons other than those
designated by law,51 or by a person who is disquali-
fied to act in this capacity,52 is generally held to be
illegal and incompetent to perform the duties of
such a body. A sufficient number of officers must
48. U.S.-Gaughan v. U.S., C.C.ANeb., 19 F.2d 897.
49. Ill.-People v. Bain, 193 N.E. 137, 358 lli. 177.
50. Fla-Livingston v. State, 145 So. 761, 108 Fla. 193, corrected on
other grounds 152 So. 205, 113 Fla. 391.
R.I.-State v. Muldoon, 20 A2d 687, 67 R.I. 80.
Judge
Applicable statute does not mandate that county grand jury board
randomly select persons ultimately chosen to sit on grand jury, nor
does it preclude reasonable selection by supervising judge.
Mich.-People v. Edmond, 273 N.W.2d 85, 86 MichApp. 374.
51. Cal.-Bruner v. Superior Court of City and County of San
Francisco, 28 P. 341, 92 C. 239.
52. La.-State v. Malone, 86 So. 800, 148 La. 288.
366
l C.J.S ..
he deems
~ or fewer
l statutes
ot fatal.
46
nes were
jury was
clirected
'1e forma-
t that the
!e of the
l held not
~ h e grand
the maxi-
serve as
of names
'1 the jury
of judges
lopted for
fficers desig-
~ selected by
comply with
iy considered
drawn by
statute to
llected or
han those
s disquali-
held to be
duties of
lcers must
, corrected on
nd jury board
rand jury, nor
. 374.
ounty of San
38A C.J.S.
be present.
53
Where a majority of all the officers
designated to conduct the drawing of grand jurors
appear and act, this is generally sufficient.54
Statutes concerning the appointment of jury
commissioners should be rigidly enforced.
55
Under
some,56 but not other,57 statutory provisions it is
proper for the court, in selecting a jury commis-
sioner, to consider his political party affiliations. A
statute providing that one of two jury commission-
ers shall be a resident of a particular locality has
been construed as not prohibiting the appointment
of both from such locality.58
De facto officers.
It is the general rule that the fact that the grand
jurors were selected or drawn by de facto officers
does not render the grand jury illegal or incompe-
tent to act.59 The acts of jury commissioners who
are officers de facto are valid as to third persons
and the public.
60
Jury commissioners in possession
of their offices under color of title are at least de
facto officers.
6
!
Oath.
It has been held that, where the officer designat-
ed to select grand jurors is required by statute to
take an oath in order to be qualified to act, a grand
jury selected or drawn by an officer who had not
been sworn is illegal and incompetent.
62
However, the failure to comply with clirectory
provisions as to the taking of an oath has been held
53. Commissioners
(1) Presence of two duly appointed commissioners to prepare jury
list is mandatory.
W.Va.-State v. Pancake, 296 S.E.2d 37, 170 W.Va. 690.
(2) Fact that jury commissioners did not always select names for
grand jury in presence of each other was not such substantial failure to
comply with statutory requirements that selection resulted in illegal
grand jury.
Ind.-Wireman v. State, 432 N.E.2d 1343.
Judge
Purpose of statute providing that each district judge in rotation
according to seniority shall select one name from the veuire was to
procure random selection from list and to prevent anyone judge or
fraction from controlling selection process, and thus absence of some
of the judges during selection process did not violate statute.
Nev.-Ler.a v. Sheriff, Clark County, 568 P.2d 581, 93 Nev. 498.
54. Ga.-Smith v. State, 15 S.E. 682, 90 Ga. 133.
55. Ky.-Miller v. Commonwealth, 42 S.W.2d 518, 240 Ky. 346.
56. U.S.-U.S. v. Caplis, D.C.La., 257 F. 840.
57. Ill.-People v. Price, 20 N.E.2d 61, 371 m. 137, certiorari denied
Price v. People of State of Illinois, 60 S.C!. 94, 308 U.S. 551, 84
L.Ed.463.
58. Ind.-Dale v. State, 164 N.E. 260, 200 Ind. 408.
59. Iowa-State v. Burris, 190 N.W. 38, 194 Iowa 628.
GRAND JURIES § 41
not fatal.
63
An oath administered to a jury com-
missioner is not invalidated by a slight misdescrip-
tion of the office.64 No objection can be taken to
the failure of the selecting officers to take the oath
required by law where it is declared by statute that
no objection going to the formation of the grand
jury can be taken except that the jurors were not
drawn in the presence of the officers designated by
law.
65
The failure of a court clerk, who is ex officio
a jury commissioner, to take a special oath as jury
commissioner has been held not fatal, his oath as
court clerk being considered sufficient.66 Where
jury commissioners subscribed the required oath
after they drew the list of grand jurors, their
subscription was held to relate back to the begin-
ning of their official duties.
67
§ 41. Apportionment of Grand J,urors
There must be substantial compliance with statutes requir-
ing prospective grand jurors to be apportioned among designated
localities; but a departure from the statutory provisions is not in
all cases fatal.
Library References
Grand Jury ~ 4 .
The common-law practice required the sheriff to
select some of the persons returned by him as
grand jurors from every hundred.
68
It was not
required that they should be selected from that
part of the county in which the offense was commit-
ted or in which defendant resided.
69
La.-State v. White, 101 So. 136, 156 La. 77O-State v. Smith, 96 So.
127, 153 La. 577.
N.J.-State v. Cioffe, 26 A.2d 57, 128 N.J.L. 342, affirmed, 32 A.2d 79,
130 N.J.L. 160.
Wis.-State v. Wescott, 217 N.W. 283,194 Wis. 410.
60. La.-State v. Mitchell, 96 So. 130, 153 La. 585.
61. La.-State v. Mitchell, 96 So. 130, 153 La. 585.
N.J.-State v. Cioffe, 26 A.2d 57, 128 N.J.L. 342, affirmed 32 A.2d 79,
130 N.J.L. 160.
62. La.-State v. Flint, 26 So. 913, 52 La.Ann. 62.
State v. Bradley, 32 La.Ann. 402.
63. Ga.-Harris v. State, 12 S.E.2d 64, 191 Ga. 243.
Mich.-People v. Edmond, 273 N.W.2d 85, 86 Mich.App. 374.
64. La.-State v. Mitchell, 96 So. 130, 153 La. 585.
65. Ala.-Sims v. State, 41 So. 413, 146 Ala. 109.
66. La.-State v. Smith, 96 So. 127, 153 La. 577.
67. Ga.-Rosenblatt v. State, 58 S.E. 1107, 2 Ga.App. 649 .
68. Neb.-Patrick v. State, 20 N.W. 121, 16 Neb. 330.
69. Ala.-Williams v. State, 61 Ala. 33.
N.H.-State v. Jackson, 90 A. 791, 77 N.H. 287.
367
§ 41 GRAND JURIES
At present the terms of the governing statutes
determine the necessity for selecting grand jurors
from designated districts or divisions of a county,
as, for example, from the particular division or
locality in which the court is held or from the
different divisions proportionately.70 It has been
held essential to the legal existence of a grand jury
that there be a substantial compliance with the
requirements of such statuteS.71 A grand jury
drawn in violation of a statute providing that not
more than a certain number should be drawn as
grand jurors from any specified division has been
held to acquire no legal existence.72 On the other
hand, an honest omission of jury commissioners to
apportion jurors properly has been held not fatal.
7s
The Constitution does not require that a federal
grand jury be selected from the entire district.
74
A
federal grand jury need not be drawn from a
particular division.
75
§ 42. Protection and Certification of Lists or
Panels
The integrity of the grand jwy box and the list of grand
jurors should be scrupulously protected. Where statutes so re-
quire, the jwy lists or jury panels must be certified.
Library References
Grand Jury 0=>8.
The integrity of the grand jury box and the list
of grand jurors should be scrupulously protected.
76
Where statutes so require, the jury lists or jury
panels must be certified by the officers charged
with the duty of their preparation.
77
A substantial
compliance with such requirement is generally held
to be sufficient,78 and mere irregularities in the
form of the certificate do not invalidate the list.79
A deputy clerk of court may record the list of the
jurors on the journals of the court and certify to
70. Ala.-McCollum v. State, 93 So. 261, 18 A1a.App. 558.
TIl.-People v. Green, 161 N.B. 83, 329 III. 576-People v. Sepich, 237
ill.App.178.
71. III.-People v. Green, 161 N.E. 83, 329 ill. 576.
72. Iowa-State v. Kouhns, 73 N.W. 353, 103 Iowa 72O-State v.
Russell, 58 N.W. 915, 90 Iowa 569.
73. Hawaii-Territory v. Braly, 29 Hawaii 7.
74. U.S.-Seadlund v. U.S., C.C.Aill., 97 F.2d 742.
75. U.S.-U.S. v. White Lance, D.C.S.D., 480 F.Supp. 920.
76. Ind.-State v. Bass, 1 N.E.2d 927, 210 Ind. 181, followed in State
v. Powell, 1 N.E.2d 929, 210 Ind. 701.
38A C.J.S.
the correctness thereof.
so
The fact that the list of
grand jurors was not signed by the commissioners
has been held not fatal where it appeared that the
list drawn by them was in fact the one from which
the grand jury in question was drawn.
81
§ 43., Correction and Revision of Jury List
The jury list from which grand jurors are to be selected is
subject to correction and revision from time to time where the
governing statutes so provide.
Library References
Grand Jury 0=>8.
The jury list from which grand jurors are to be
selected is subject to correction and revision from
time to time where the governing statutes so pro-
vide.82 Such provisions are generally held to be
directory merely, and where the officers charged
with the duty of correction and revision fail to
perform such duty, a grand jury selected from the
old list is legal and competent to perform the duties
of such a body.83
The action of a board in amending a grand jury
list should not be annulled by reason of its failure
to cause an entry thereof to be made in the minutes
of its proceedings.
84
Where a change in a grand
jury list is made by the proper officials, it is
immaterial who performs the necessary clerical
work incidental to the change.
85
Under some statutes providing for the drawing
and listing of jurors, a judge may direct the jury
commissioners to prepare a new jury list and draw
a new grand jury where irregularities or omissions
pertaining to the selection of grand juries have
occurred.
86
Under statutes providing for the addition of
names to the jury box when needed, it has been
held that the additional names are to be placed in
Oath or seal
Fact that clerk's certification of list of prospective grand jurors
lacked oath or seal did not render certification defective.
Nev.-Lera v. Sheriff, Clark County, 568 P.2d 581, 93 Nev. 498.
78. Iowa-State v. Carter, 121 N.W. 801, 144 Iowa 371.
79. Ark.-Brassfield v. State, 18 S.W. 1040, 55 Ark. 556.
80. Okl.-Tegeler v. State, 130 P. 1164, 9 Okl.Cr. 138.-Reed v.
Territory, 98 P. 583, 1 Okla.Cr. 481.
81. Tex.-Bryant v. State, 260 S.W. 598, 97 Tex.Cr. 11.
82. La.-State v. Johnson, 41 So. 117, 116 La. 856.
83. N.C.-State v. Durham Fertilizer Co., 16 S.B. 231, 111 N.C. 658 .
. Ky,-Miller v. Commonwealth, 42 S.W.2d 518, 240 Ky. 346. 84. Iowa-State v. Pierson, 216 N.W. 43, 204 Iowa 837.
77. Wash.-State v. Krug, 41 P. 126, 12 Wash. 288, error dismissed 17 85. Iowa-State v. Pierson, 216 N.W. 43, 204 Iowa 837.
S.Ct. 995, 164 U.S. 704, 41 L.Ed.2d 1183. 86. S.C.-State v. Wells, 161 S.E. 177, 162 S.c. 509.
368
tl
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0]
yl
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rE
§
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tJ
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.,
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iiI._ iiiliIillla:UZWl$ililllllli.it!!!iiii!!ii!iS!!!ii!!iiiilU L/iiiiilk i. Riiljijftij' '1 'Ill 111111111
SA C.J.S.
at the list of
mmissioners
.red that the
l from which
ry List
to be selected is
time where the
lrs . are to be
revision from
.tutes so pro-
'f held to be
.cers charged
iTision fail to
~ t e d from the
rm the duties
a grand jury
of its failure
n the minutes
re in a grand
)fficials, it is
ssary clerical
~ the drawing
irect the jury
list and draw
3 or omissions
d juries have
e addition of
i, it has been
o be placed in
ective grand jurors
:ctive. .
93 Nev. 498.
a 371.
k.556.
l.Cr. 138.-Reed v.
'r.11.
i.
i. 231, 111 N.C. 658.
a 837.
a 837.
)9.
38A C.J.S.
the box with the other names still remaining there,
and that the box should be emptied of all names
only when a new list of names for the succeeding
year is put into the box.
87
§ 44. Record of Selection and Drawing
A record must be made of the matters pertaining to the
selection and drawing of grand juries where the statutes so
require, but not otherwise.
Library References
Grand Jury e=>8.
GRAND JURIES § 45
Under some statutes, the names of prospective
grand jurors are required to be recorded.
88
In the
absence of statutory requirement, it. is not neces-
sary that a record be kept showing the selection of
jury lists 89 or the manner of the drawing of the
panel.
90
The failure to enter on the minutes the court's
order directing the clerk and the jury commissioner
to place in the jury box the number of names
required by statute does not render the grand jury
an illegal body.91
E. SUMMONING JURORS
§ 45. In General
The mode of summoning grand jurors, the number to be
summoned, and the time of summoning, depend on the terms of
the governing statutes, which must be substantially complied
with. Technical irregularities, however, are not fatal, particular-
ly under statutes which are directory merely, or which expressly
limit the effect of irregularities.
Library References
Grand Jury <99.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Guide following Preface.
At common law, a grand jury could be summoned
by open venire, and, in the absence of statute
otherwise providing, this mode of summoning a
grand jury is still available.
92
At present, the method of summoning grand
jurors is very generally regulated by statute in the
different jurisdictions, and the particular method
depends on the terms of the governing statute.
93
There must be a substantial, compliance with the
method of summoning prescribed by such stat-
ute; 94 but a substantial compliance is sufficient,
and mere irregularities not amounting to a substan-
tial departure from the method prescribed by stat-
ute are immaterial,95 particularly under statutes
87. Fla.-Slayton v. State, 141 So. 875, 105 Fla. 586.
88. Ind.-Weer v. State, 36 N.E.2d 787, 219 Ind. 217, rehearing
denied 37 N.E.2d 537, 219 Ind. 217.
89. Iowa-State v. Carney, 20 Iowa 82.
90. Iowa-State v. Howard, 10 Iowa 101.
91. U.S.-Williams v. U.S., C.CACal., 275 F. 129.
92. Colo.-Rogers v. People, 94 P.2d 453, 104 Colo. 594.
93. Ariz.-Kingsbury v. State, 232 P. 887, 27 Ariz. 289, modified on
rehearing on other grounds 235 P. 140, 28 Ariz. 86.
Tex.-Winn v. State, 135 S.W.2d 118, 138 Tex.Cr. 202.
94. Tex.-Woolen v. State, 150 S.W. 1165, 68 Tex.Cr. 189.
providing that a jury summoned in an informal or
irregular manner shall nevertheless be deemed a
legal jury after it has been impaneled and sworn,96
or under statutes providing that irregularities in
summoning a grand jury shall not be fatal unless
defendant has thereby been deprived of some sub-
stantial right.97
According to some authorities, it is not necessary
that the sheriff serve the venire on the grand
jurors personally, service on the grand jurors by
mail, to which they respond, being considered suffi-
cient,98 in the absence of any showing that the
substantial rights of accused were prejudiced there-
by.99 However, there is also authority which holds
that notice given by the sheriff by mail, or other-
wise than by service of the regular writ, is not a
legal summons.
1
Statutes as mandatory or directory.
A statute providing for the summoning of a
grand jury is directory when a departure therefrom
does not, in the absence of fraud or prejudice,
militate against other statutory or constitutional
rights of the party challenging the regularity of the
95. Place of summoning
The fact that grand jurors are summoned while at the courthouse
rather than at ·their respective homes does not change their competen-
cy to serve.
Ill.-People v. Birger, 160 N.E. 564, 329 Ill. 352.
96. Miss.-Nelson v. State, 133 So. 248, 160 Miss. 401.
97. Okl.--Gravitt v. State, 279 P. 968, 44 Okl.Cr. 45.
98. Ill.-People v. Sink, 30 N.E.2d 40, 374 Ill. 480-People v. Wal-
lace, 135 N.E. 723, 303 Ill. 504.
People v. Sepich, 237 Ill.App. 178.
99. Ill.-People v. Wallace, 135 N.E. 723, 303 Ill. 504.
1. W.Va.-State v. Austin, 117 S.E. 607, 93 W.Va. 704.
369
§ 45 . GRAND JURIES
grand jury.2 A mandatory statute pertaining to
the summoning of a grand jury is one required to
be observed in order to prevent fraud, unjust pros-
ecution, or an invasion of statutory or constitutional
rights of citizens.
3
Provisions respecting the sum-
moning of grand jurors are of course directory
only, where the governing statute expressly so
provides."
Prior order of court.
At common law, it seems that a precept for the
summoning of grand jurors might be issued inde-
pendently of any action on the part of the COurt,5
and, under some statutes, the clerk in issuing a
venire acts ex officio and under the mandate of the
statute and not by direction or authority of the
court.
6
However, under some statutes a prior or-
der of the court authorizing the summoning of
grand jurors is the proper mode of procedure,
7
although failure to comply with such statutes has
been held not to affect the validity of the action of
the grand jury summoned.
s
The court may orga-
nize the panel if found in attendance, although it
has come in response to a summons issued without
the prescribed order therefor.
9
Number to be summoned.
At common law, the sheriff of the county was
required to return to every session of the peace,
and every commission of oyer and terminer, and of
general jail delivery, twenty-four good and lawful
men of the county.IO At present, the number of
grand jurors to be summoned is governed by the
applicable statutory or constitutional provision.
ll
While statutes of this character have been regard-
ed as directory,12 it has also been held that the
summoning of a greater number than the statute
directs is a substantial departure from the method
2. Fla.-Gray v. State, 197 So. 333, 143 Fla. 588.
3. Fla.-Gray v. State, 197 So. 333, 143 Fla. 588.
4. Miss.-Atkinson v. State, 101 So. 490, 137 Miss. 42.
5. Va.-Curtis v. Commonwealth, 13 S.E. 73, 87 Va. 589.
Commonwealth v. Burton, 4 Leigh 645, 31 Va. 645.
6. Me.-State v. Symonds, 36 Me. 128.
7. U.S.-Rice v. U.S., C.<::.A.N.Y., 35 F.2d 689, certiorari denied 50
S.C!. 246, 281 U.S. 730, 74 L.Ed. 1146.
Ala.-Bolton v. State, 150 So. 362, 25 Ala.App. 539, certiorari denied
150 So. 364, 227 Ala. 465.
8. Mo.-State v. Connell, 49 Mo. 282.
9. Ind.-Hess v. State, 73 Ind. 537.
10. Neb.-Patrick v. State, 20 N.W. 121, 16 Neb. 330.
11. Ill.-People v. Ueber, 192 N.E. 331, 357 m. 423.
38A C.J.S.
of selection prescribed, and fatal to the legal exis-
tence and competency of a grand jury.I3
Time of summoning.
Where statutes prescribe the time of summoning
grand jurors, as for example where they require
that grand jurors shall be summoned or notified, or
that the writ shall issue, within a specified period
prior to the commencement of the term, the statu-
tory provisions should be complied with in every
respect.
14
Such statutes are frequently considered
directory, however, so that a deviation therefrom
which cannot be harmful does not vitiate the orga-
nization or actions of the grand jury.I5 Thus, un-
der the view that statutes of this character are
directory to the sheriff or officer, and intended for
the convenience of grand jurors that they may have
sufficient notice of the service required of them, it
is held that, if the grand jurors attend and serve
without such notice, the validity of the organization
of the grand jury is not affected.
I6
§ 46. Writ
The issuance and return of a writ of venire facias or
similar process are required by some authorities for the summon-
ing of a grand jury. Technical defects in the writ or return
usually are not considered fatal to the legality of the grand jury.
Library References
Grand Jury e->9.
At common law, the process for summoning a
grand jury was a precept either in the name of the
king or of two or more justices of the peace direct-
ed to the sheriff.
I7
In this country the rule has
been laid down by some authorities, either at com-
mon law or under statute, that a writ of venire
facias or a process in the nature of that writ is
necessary for the bringing together of a grand jury
authorized to find valid indictments, and that the
12. Ill.-Beasley v. People, 89 Ill. 571.
13. Miss.-Leathers v. State, 26 Miss. 73.
14. Mass.-Commonwealth v. Krathofski, 50 N.E. 1040, 171 Mass.
459.
Utah-Thorp v. People, 24 P. 908, 3 Utah 441.
Any day during term
If the court may order an open venire for a grand jury "during the
term," the particular day of the term on which the order is made is
immaterial.
Colo.-Rogers v. People, 94 P.2d 453, 104 Colo. 594.
15. Tex.-King v. State, 234 S.W. 1107, 90 Tex.Cr. 289.
16. Ky.-White v. Commonwealth, 85 S.W. 753, 120 Ky. 178, 27
Ky.L.Rptr. 561.
17. Va.-Curtis v. Commonwealth, 13 S.E. 73,87 Va. 589.
370
:A C.J.S.
legal exis-
summoning
ley require
notified, or
fied period
, the statu-
h in every
considered
therefrom
e the orga-
Thus, un-
cr-acter are
ttended for
r may have
of them, it
and serve
rganization
• ire facias or
the summon-
Tit or return
le grand jury.
Ilmoning a
ame of the
ace direct-
e rule has
.er at com-
of venire
tat writ is
grand jury
d that the
40, 171 Mass.
ry "during the
ler is made is
I Ky. 178, 27
;9.
38A C.J.S.
courts are without power to dispense with it.
1S
A
contrary rule has been laid down, however, under
some statuteS.
19
It is too late after trial and con-
viction to raise the objection that a writ summoning
the grand jury was not issued.
20
Requisites and validity.
The general rule is that slight irregularities or
mere defects in the form of the writ are immateri-
aPl The legality or competency of the grand jury
has been held unaffected by the absence of a
statement of the qualifications of the grand ju-
rors,22 the failure to state the full or exact name of
a grand juror,23 the omission of the name of the
town in the address of the venire,24 or the affixing
of an erroneous date.25 It has been held immateri-
al also that the writ is signed by the clerk of the
court without giving his official signature,26 or that
the mandatory direction of the writ is in the name
of the clerk instead of the name of the courtP It
has been held that, in the absence of a statute
requiring it, the order for a grand jury need not
state for what time or period it is to serve.28
In some cases it has been held that the absence
of the seal of the court issuing a venire facias is not
a mere irregularity, but renders the venire void,29
but in other cases the absence of the seal has been
regarded as an irregularity only.30
Where a venire facias is required to bear the test
of a specified officer, a venire facias tested in the
name of another is insufficient.
31
The fact that a
writ of venire facias contained a statement of quali-
fications not required of grand jurors by law has
been held to be a material irregularity.32
18. Va.---Curtis v. Commonwealth, 13 S.E. 73, 87 Va. 589.
19. Mo.-Samuels v. State, 3 Mo. 68.
20. Va.-Robinson v. Commonwealth, 14 S.E. 627, 88 Va. 900.
21. ill.-People v. Birger, 160 N.E. 564, 329 ill. 352.
22. Ala.-Stewart v. State, 13 So. 319, 98 Ala. 70.
23. Ala.-Stoneking v. State, 24 So. 47, 118 Ala. 68.
24. Mass.-Commonwealth v. Moran, 130 Mass. 281.
25. Va.-Davis v. Commonwealth, 15 S.E. 388, 89 Va. 132.
26. Neb.-Drake v. State, 17 N.W. 117, 14 Neb. 535.
Tenn.-State v. Cole, 28 Tenn. 626, 9 Humphr. 626.
27. Tenn.-State v. Cole, 28 Tenn. 626, 9 Humphr. 626.
28. U.S.-U.S. v. Lewis, D.C.Mo., 192 F. 633.
29. Me.-State v. Fleming, 66 Me. 142.
30. N.H.-State v. Bradford, 57 N.H. 188.
31. U.S.-U.S. v. Antz, c.c.La., 16 F. 119,4 Woods 174.
32. Va.-Wash. v. Commonwealth, 16 Gratt. 530, 57 Va. 530.
33. Ky.-Commonwealth v. Barry, 3 Ky. 229, Hard. 229.
GRAND JURIES § 47
Return.
The rule is laid down both under statute
33
and at
common laWW that the sheriff must make a return
to the court or some duly authorized official show-
ing the names of grand jurors summoned and
reciting such other facts as are required by law;
but immaterial omissions or irregularities in the
return will not affect the legality of a grand jury or
validity of its action, where it appears that its
members were legally drawn and actually attended
in obedience to the summons they received.
35
The
court may authorize the officer to amend his return
according to the facts; 36 and it may permit him to
complete his return by signing it.
37
§ 47. Who May Summon
At common law grand jurors were summoned by the sher-
iff, and this is still the rule in the absence of statute otherwise
providing. Other officers may perform such duty, however, where
the sheriff is unable to act.
Library References
Grand Jury €:o>9 .
At common law grand jurors were summoned by
the sheriff,38 and, unless otherwise provided by
statute, the sheriff generally is still the proper
officer to summon grand juries.
39
Where the sher-
iff is not expressly required by law to summon the
jury in person, it has been held that he may do so
by deputy.4o
Officers other than the sheriff may be required
to summon grand jurors by virtue of provision to
that effect,41 or by reason of the disqualification of
the sheriff or his inability to act.42
N.J.-State v. Rickey, 9 N.J.L. 293.
34. N.J.-State v. Rickey, 9 N.J.L. 293.
35. Ill.-People v. Birger, 160 N.E. 564, 329 ill. 352.
36. Ala.-Rampey v. State, 3 So. 593, 82 Ala. 31.
37. Mass.-Commonwealth v. Moran, 130 Mass. 281.
38. Conn.-State v. Kemp, 9 A2d 63, 126 Conn. 60.
Fla.-Hicks v. State, 120 So. 330, 97 Fla. 199.
. Ind.-Randolph v. State, 162 N.E. 656, 200 Ind. 210.
N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
39. W.Va.-State v. Austin, 117 S.E. 607, 93 W.Va. 704.
40. N.D.-Zinn v. District Court for Barnes County, 114 N.W. 475,
17 N.D. 128.
41. County clerk
N.Y.-Uvoti v. Fitzgerald, 5 N.Y.S.2d 588, 255 AD. 711, 255 AD.
720, affirmed 18 N.E.2d 319, 279 N.Y. 696.
42. Tex.-Smith v. State, 280 S.W. 200, 103 Tex.Cr. 103.
371
! III
§ 47 GRAND JURIES
It has been held that, if a grand juror receives
notice and attends, it is immaterial by whom he was
served.43
§ 48. Federal Grand Jury
Under the Jury Selection and Service Act, when the court
orders a federal grand jury to be drawn, summonses shall be
issued. Jurors may be served personally or by mail.
Library References
Grand Jury *'9.
Under the Jury Selection and Service Act, when
the court orders a federal grand jury to be drawn,
the clerk or jury commission or their duly designat-
ed deputies shall issue summonses for the required
number of jurors.
44
38A C.J.S.
Each person drawn for jury service may be
served personally, or by registered, certified, or
first-class mail addressed to such person at his
usual residence or business address.45 If such ser-
vice is made personally, the summons shall be
delivered by the clerk or the jury commission or
their duly designated deputies to the marshall, who
shall make such service.
46
If such service is made
by mail, the summons may be served by the mar-
shall or by the clerk, the jury commission or their
duly designated deputies, who shall make affidavit
of such service and shall attach thereto any receipt
from the addressee for a registered or certified
sumnions.
47
F. COMPLETION OF DEFECTIVE PANEL
§ 49. In General
A defective grand jury panel is to be completed in the
manner prescribed by statute.
Research Note
Substitution of jurors on grand jury is considered infra § 57.
Library References
Grand Jury -8, 9, 12.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Gnide following Preface.
It has been held that, in case of the nonatten-
dance of a part of the regular venire, the court may
at common law order the defective panel to be
supplied from bystanders.48 When the power is
given a court to excuse one called to serve as a
grand juror, authority to fill the vacancy thus occa-
sioned with another juror possessing the requisite
qualifications is also conferred by necessary impli-
cation.
49
Under statutes, provisions are made for sum-
moning grand jurors selected either from the grand
jury lists, from bystanders, from the body of the
county or district, or in some other prescribed
mode, for the purpose of completing defective pan-
els where there has been a failure to summon or
43. Ky.-CommonweaIth v. Graddy, 61 Ky. 223, 4 Metc. 223.
44. 28 U.S.C.A § 1866(b).
45. 28 U.S.C.A § 1866(b).
46. 28 U.S.CA § 1866(b).
47. 28 U.S.CA § 1866(b).
48. Mi<;s.-Dowling v. State, 13 Miss. 664.
49. Ind.-Burrell v. State, 28 N.E. 699, 129 Ind. 290.
50. Miss.-Atkinson v. State, 100 So. 391, 135 Miss. 462.
procure the attendance of a sufficient number, or
where jurors have been discharged or excused or
the panel has otherwise been reduced below the
number required by law.
50
Under a statute authorizing courts to supply
deficiencies in the grand jury panel in certain speci-
fied contingencies only, a court cannot exercise
such authority unless the contingencies named in
the statute arise.
51
It is essential to the legal
existence and competency of a grand jury that the
statutory provisions prescribing the method of se-
lecting, drawing, and summoning persons to supply
deficiencies in the grand jury panel be substantially
complied with.
52
Substantial compliance is usually
sufficient; mere irregularities not amounting to a
substantial departure from the mode prescribed by
statute are held to be immaterial.
53
§ 50. Federal Grand Jury
Library References
Grand Jury -8, 9, 12.
In the case of a federal grand jury, if less than 16 sum-
moned persons attend, the court shall order a sufficient number
of persons to complete the grand jury. .
In the case of a federal grand jury, if less than 16
of the persons summoned attend, they shall be
Tex.-Robioson v. State, 244 S.W. 599, 92 Tex.Cr. 527.
W.Va . ......state v. Austio, 117 S.E. 607, 93 W.Va. 704.
51. Ala.-Trammell v. State, 44 So. 201, 151 Ala. 18.
52. Ind.-Crickmore v. State, 12 N.E.2d 266, 213 Ind. 586.
53. U.S.-Abramson v. U.S., C.C.AKy., 2 F.2d 595, certiorari denied
45 s.a. 509, 268 U.S. 688, 69 L.Ed. 1158.
372
38A C.J.S.
may be
I, certified, or
person at his
15 If such ser-
nons shall be
commission or
marshall, who
ervice is made
by the mar-
rission or their
make affidavit
any receipt
!d or certified
nt number, or
or excused or
ced below the
Irts to supply
1 certain speci-
mnot exercise
lcies named in
l to the legal
1 jury that the
method of se-
'sons to supply
Ie substantially
mce is usually
mounting to a
prescribed by
less than 16 sum-
sufficient number
if less than 16
they shall be
527.
I.
18.
Ind. 586.
95, certiorari denied
38A C.J.S.
placed on the grand jury, and the court shall order
the marshal to summon, either immediately or for a
day fixed, from the body of the district, and not
from the bystanders, a sufficient number of persons
to complete the grand jury.54
GRAND JURIES § 52
Whenever a challenge to a grand juror is al-
lowed, and there are not in attendance other jurors
sufficient to complete the grand jury, the court
shall make a like order to the marshal to summon a
sufficient mnnber of persons for that purpose.
55
G. IMPANELING AND ORGANIZATION
§ 51. In General
Grand juries are to be impaneled in the manner prescribed
by statute, but mere irregularities in impaneling ordinarily do not
vitiate their action.
Library References
Grand Jury <$=>20.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Gnide following Preface.
The selection, from the whole number sum-
moned, of those who are to be sworn as grand
jurors and the formation of the grand jury by the
court has been designated by the term "impan-
eling." 56 The manner of selecting the grand jury
from the number summoned by the sheriff or other
officer and in attendance as grand jurors is fre-
quently regulated by statute or constitutional provi-
sions,57 provision being made in some instances for
selection by lot.
58
A statutory requirement that
the grand jury shall be drawn or selected in a
particular manner from the grand jurors sum-
moned may be dispensed with where the precise
number required to fill the panel are in attend-
ance.
59
It is essential to the legal existence of a grand
jury that there be a substantial compliance with the
mode or manner of impaneling prescribed by stat-
ute.
60
Arbitrary disregard of statutes in the orga-
nization of a grand jury renders the grand jury
54. 18 U.S.C.A. § 3321.
55. 18 U.S.C.A § 3321.
56. Mo.-State v. Hurst, 99 S.W. 820, 123 Mo.App. 39.
Wash.-State v. Superior Court of Whatcom County, 144 P. 32, 82
Wash. 284.
57. Ala.-Crowder v. State, 175 So. 330, 27 AlaApp. 522.
m.-People v. Lieber, 192 N.E. 331, 357 m. 423.
Wis.-State v. Lawler, 267 N.W. 65, 221 Wis. 423, 105 AL.R. 568.
58. Or.-State v. Lawrence: 7 P. 116, 12 Or. 297.
59. m.-People v. Kramer, 185 N.E. 590, 352 m. 304.
60. Ala.-Doss v. State, 123 So. 237, 23 Ala.App. 168, certiorari
denied 123 So. 231, 220 Ala. 30, 68 AL.R. 712.
Md.-State v. Vincent, 47 A 1036, 91 Md. 718.
Miss.-Shepherd v. State, 42 So. 544, 89 Miss. 147.
without authority.61 Substantial compliance usually
is sufficient; and, as a general rule, sometimes
declared by statute, mere irregularities in impan-
eling a grand jury, not affecting the competency of
any of the members, will not vitiate their action.
62
It has been said that statutes relating to the orga-
nization of grand juries are directory and not man-
datory.53
Under some statutes, the entire process of im-
paneling a grand jury must be done in open court.
54
Collateral attack.
The validity of the organization of a grand jury,
whether de facto or de jure, or of its acts, ordinari-
ly cannot be questioned in collateral proceedings.
65
Amendment of record.
The court may permit the record to be amended
so as to' show a proper organization of the grand
jury.66
§ 52. Time of Appearance and Organization
The time when the grand jury is to be organized is general-
ly prescribed by statute.
Library References
Grand Jury <$=>20.
The terms of court for which grand juries are to
be summoned and the time when they are to
Tenn.-State v. Edwards, 129 S.W.2d 199, 174 Tenn. 542.
61. Tex.-Gentry v. State, CrApp., 770 S.W.2d 780, certiorari denied
109 S.C!. 2458, 490 U.S. 1102, 104 L.Ed.2d 1013 ..
62. m.-People v. Ueber, 192 N.E. 331, 357 m. 423-People v.
Birger, 160 N.E. 564, 329 m. 352.
Minn.-State v. Ginsberg, 208 N.W. 177, 167 Minn. 25.
Old.-Blake v. State, 14 P.2d 240, 54 Old.Cr. 62-Smith v. State, 287
P. 1103, 46 Old.Cr. 16O-Gravitt v. State, 279 P. 968, 44 Old. Cr.
45-State v. Childers, 252 P. 6, 122 Old. 64.
Tex.-Armentrout v. State, 135 S.W.2d 479, 138 Tex.Cr. 238.
63. Tex.-Gentry v. State, CrApp., 770 S.W.2d 780, certiorari denied
109 S.C!. 2458, 490 U.S. 1102, 104 L.Ed.2d 1013.
64. Hawaii-State v. Schmidt, 774 P.2d 242, 70 Haw. 443.
65. Cal.-In re Gannon, 11 P. 240, 69 C. 541.
66. m.-People v. Barnwell, 129 N.E. 538, 296 m. 67.
373
§ 52 GRAND JURIES
appear and be impaneled, or organized, are very
generally prescribed by statute, a discretion in
these respects. being in many instances vested in
the COurt.
67
In the absence of statutory provision
requiring grand jurors to be summoned to appear
or the grand jury to be organized on the first day
of the term, the organization may take place at any
time during the term.
68
Statutes providing for the
organization of a grand jury on the first day of the
term have been held directory.69
That the grand jury was impaneled and sworn
before the date set by the order of the court has
been held to be immaterial, in the absence of a
showing that defendant was prejudiced thereby.70
§ 53. Number of Jurors
At common law a grand jury is composed of not less than
12 nor more than 23, but the number is now very generally
regulated by constitutional or statutory provisions.
Research Note
Number of jurors who must be present at a proceeiling is
considered infra § 92.
Library References
Grand Jury <S=>3.
At common law a grand jury must be composed
of not less than 12 nor more than 23 "good and
lawful men;" 71 but the number of persons neces-
sary to be impaneled and sworn and to be present
for the legal transaction of business is now very
generally dependent on constitutional or statutory
provisions, either confirming or imposing various
modifications of the common-law rule.72
The federal constitution imposes no limitation on
the right of a state through its legislature to fix the
number of grand jurors.
73
Where a state constitu-
tion fixes the number of grand jurors at a particu-
67. La.-State v. Washington, 120 So. 633, 167 La. 1021.
68. Ala.-Jackson v. State, 15 So. 344, 102 Ala. 167.
Wash.-State v. Gilliam, 104 P. 1131,56 Wash. 29.
69. Ind.-Hughes v. State, 54 Ind. 95.
70. U.S.-U.S. v. Lewis, D.CMo., 192 F. 633.
71. Cal.-Fitts v. Superior Court in and for Los Angeles County, 57
P.2d 510, 6 C2d 230.
lli.-People v. lieber, 1 ~ 2 N.E. 331, 357 lli. 423-People v. Brautigan,
142 N.E. 208, 310 lli. 472.
Ohio-State v. Ross, 28 Ohlo Dec. 267, 20 Ohlo N.P., N.S., 369.
RI.-State v. Muldoon, 20 A2d 687, 67 RI. 80-In re Opinion to the
Governor, 4 A2d 487, 62 RI. 200, 121 AL.R 806.
S.C-State v. Bramlett, 164 S.E. 873, 166 S.C 323.
72. ill.-People v. Price, 20 N.E.2d 61, 371 lli. 137, certiorari denied
Price v. People of State of illinois, 60 S.C!. 94, 308 U.S. 551, 84
L.Ed. 463-People v. lieber, 192 N.E. 331, 357 ill. 423.
38A C.J.S.
lar figure, the legislature has no power to change
the number.
74
However, a state constitutional pro-
vision that the legislature shall have power to de-
termine the number of grand jurors confers a
discretion on the legislature as to the number and
empowers it to fix the number at less than 12.75
Where the constitution contemplates a common-
law grand jury of not less than 12 nor more than
23, it is competent for the legislature, within the
maximum limits prescrihed by the common law, to
increase or diminish the number of grand jurors
without infringing the rights of the accused guaran-
teed by the constitution; 76 but a statute is void
which fixes the number of grand jurors at less than
the common-law minimum of 12.77
Federal grand jury.
A federal grand jury shall consist of not less than
16 nor more than 23 members.
78
However, such a
grand jury does not cease to exist when its mem-
bership falls below 16.
79
§ 54. Appointment, Qualifications, and Duties
of Foreman
a. In general
b. Federal grand jury
a. In General
A grand jury is usually officered by a foreman who is
appointed by the court or elected by the grand jurors.
Library References
Grand Jury <s=>21.
Statutes regulating the organization of grand
juries usually make provision for the appointment
N.Y.-People v. Blair, 33 N.Y.S.2d 183, 17 Misc.2d 265.
Ohlo-State v. Ross, 28 Ohlo Dec. 267, 20 Ohlo N.P., N.S., 369.
S.C-State v. Bramlett, 164 S.E. 873, 166 S.C. 323.
73. Colo.-Parker v. People, 21 P. 1120, 13 Colo .. 155.
74. Tex.-Ex parte Bustamente, 137 S.W.2d 29, 138 Tex.Cr. 229.
Rainey v. State, 19 Tex.App. 479.
75. Ohio-State v. Juergens, 379 N.E.2d 602, 55 Ohlo App.2d 104, 9
O.0.3d262.
S.C-State v. Starling, 49 S.C.L. 120.
76. Fla.-English v. State, 12 So. 689, 31 Fla. 340, 31 Fla. 356.
77. Nev.-State v. Hartley, 40 P. 372, 22 Nev. 342.
78. Fed.Rules Cr.Proc., Rule 6(a)(I), 18 U.S.C.A.
79. U.S.-U.S. v. Jones, M.D.Fla., 676 F.Supp. 238.
374
~ 8 A C.J.S.
rer to change
;itutional pro-
power to de-
rs confers a
~ number and
~ s s than 12.75
~ s a common-
or more than
~ e , within the
mmon law, to
grand jurors
cused guaran-
Gatute is void
~ s at less than
f not less than
,wever, such a
Then its mem-
!, and Duties
, foreman who is
lIrors.
tion of grand
e appointment
265.
.P., N.S., 369.
155.
38 Tex.Cr. 229.
Ohio App.2d 104, 9
, 31 Fla. 356.
l8.
38A C.J.S.
of a foreman.
so
However, it has been held that the
action of the entire grand jury is not invalidated by
the failure to appoint a foreman 81 or by the ab-
sence of the foreman appointed.
82
No objection to
the failure to appoint a foreman can be taken
where it is provided by statute that no objection
going to the formation of a grand jury can be
taken, except that the jurors were not drawn in the
presence of the officers designated by law.
83
The foreman is to be appointed by the person or
persons designated by statute; 84 under some stat-
utes the court is required to appoint the foreman,85
while under other statutes the grand jurors them-
selves are authorized to make the appointment,86
In the absence of statute designating the appoint-
ing power, it appears to be a common practice for
the court to appoint the foreman,87 and it has been
held that the judge of a court of general jurisdic-
tion has inherent power to appoint the foreman and
that this authority is not affected by the custom of
permitting the members of the grand jury to elect
him.
88
It is not unconstitutional for the court to
delegate the task of selection to the jury supervi-
sor.89
After a grand jury has been impaneled and a
foreman appointed, if the foreman is excused from
the grand jury another foreman may be appointed,
and the appointment of a new foreman is some-
times expressly authorized by statute.
90
Where the
foreman regularly appointed is absent at the time
action is being taken on an indictment or fails to act
through incompetency or other cause, a foreman
80. Ill.-People v. Ueber, 192 N.E. 331, 357 Ill. 423.
Minn.-State v. Ginsberg, 208 N.W. 177, 167 Minn. 25.
81. Iowa-State v. Von Kutzieben, 113 N.W. 484, 136 Iowa 89.
82. Miss.-State v. Coulter, 61 So. 706, 104 Miss. 764.
83. Ala.-Shitley v. State, 40 So. 269, 144 Ala. 35.
84. Minn.-State v. Ginsberg, 208 N.W. 177, 167 Minn. 25.
85. Minn.-State v. Ginsberg, 208 N.W. 177, 167 Minn. 25.
86. Mass.--CommonweaItb v. Sanborn, 116 Mass. 61.
87. Wis.-State v. Wescott, 217 N.W. 283, 194 Wis. 410.
88. Ga.-Peeples v. State, 173 S.E. 850, 178 Ga. 675-Jobnson v.
State, 171 S.E. 699, 177 Ga. 88I.
89. Or.-Burson v. Cupp, 688 P.2d 1382, 70 Or.App. 246, review
denied 695 P.2d 1371, 298 Or. 704.
90. Ala.-Jacobs v. State, 42 So. 70, 146 Ala. 103.
Iowa-Keitler v. State, 4 Greene 29I.
91. La.-State v. Smith, 103 So. 534, 158 La. 129.
Minn.-State v. Ginsberg, 208 N.W. 177, 167 Minn. 25.
92. Iowa-Keitler v. State, 4 Greene 29I.
Tenn.-State v. Collins, 61 Tenn. 151, 6 Baxt. 15I.
93. Miss.--Cody v. State, 4 Miss. 27.
94. Tenn.-State v. Jefferson, Cr.App., 769 S.W.2d 875.
GRAND JURIES § 54
pro hac vice may be appointed, and such appoint-
ment is sometimes also authorized by statute.
91
Qualifications.
The foreman must be one of the grand jurors
and, in the absence of statute, need have no qualifi-
cations other than those of ordinary grand jurors.
92
Powers and duties.
The foreman is, in the absence of the court, the
presiding officer of the inquest; he is the organ
through which its inquisitions and proceedings are
reported to the court, and particular duties devolve
on him distinct from those of the other members of
the grand jury; the most important of his duties is
to report all bills which are submitted to the grand
jury and to indorse on such bills, as foreman,
whether or not they are true.
93
The foreman is the
spokesperson for the grand jury,94 and has the
same voting power as any other grand jury mem-
ber.95
h. Federal Grand Jury
In the case of a federal grand jury, the court shall appoint
one of the jurors to be foreperson and another to be deputy
foreperson.
In the case of a federal grand jury, the court
shall appoint one of the jurors to be foreperson and
another to be deputy foreperson.
96
The foreperson shall have power to administer
oaths and affirmations and shall sign all indict-
95. Tenn.-State v. Jefferson, Cr.App., 769 S.W.2d 875.
96. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.C.A
Discretion
Empaneling judge is given discretion in selection of foreperson for
grand jury.
U.S.-U.S. v. Browning-FerriS Industries of Georgia, Inc., D.C.Ga.,
555 F.Supp. 595.
Criteria
Criteria used by empaneling judge to choose foreperson for grand
jury, occupation, age, education, and observable command presence,
were reasonable.
U.S.-U.S. v. Browning-Ferris Industries of Georgia, Inc., D.C.Ga.,
555 F.Supp. 595.
Clerks and prosecutors
Absent any showing that any judge delegated or otherwise avoided
his responsibility with regard to ultimate selection of grand jury
forepersons and deputies, fact that clerks and prosecutors occasionally
played role in selection of grand jury forepersons and deputies did not
establish improper interference in selection of forepersons.
U.S.-U.S. v. Jenison, D.C.Fla., 485 F.Supp. 655.
375
§ 54 GRAND JURIES
ments.
97
The foreperson or another juror desig-
nated by the foreperson shall keep record of the
number of jurors concurring in the finding of every
indictment and shall file the record with the clerk
of the COurt.
98
During the absence of the foreperson, the deputy
foreperson shall act as foreperson.
99
§ 55. -- Discrimination; Fair Cross Section.
a. In general
b. Showing of violation
a. In General
Discrimination in the selection of the grand jury foreman
may violate equal protection, but generally does not violate due
process, and accused generally lacks standing to challenge such
discrimination where accused is not a member of the group
discriminated against. The fair cross section requirement is
inapplicable to the selection of the foreman.
Research Note
Discrimination and fair cross section requirement as affecting
selection of members of grand jury are treated supra §§ 13-19.
Library References
Grand Jury 0=>21.
Discrimination in the selection of the grand jury
foreman may violate the constitutional guaranty of
equal protection.
1
Purposeful discrimination
against blacks or women in the selection of federal
grand jury foremen is forbidden by the Fifth
Amendment.
2
Only purposeful discrimination vio-
97. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.CA.
.98. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.CA.
99. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.CA.
1. U.S.-Rose v. Mitchell, Tenn., 99 S.Ct. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
N.C.-State v. Cofield, 357 S.E.2d 622, 320 N.C. 297, appeal after
remand 379 S.E.2d 834, 324 N.C. 452.
State constitutional provision
(1) Equal protection provision of state constitution requires that all
grand jurors be considered for appointment as grand jury foreman.
N.C.-State v. Cofield, 379 S.E.2d 834, 324 N.C. 452.
(2) Method of selecting grand jury foreman that meets racially
neutral standard must insure that all grand jurors are considered by
presiding judge for his or her selection and that selection be made on
racially neutral basis.
N.C.-State v. Cofield, 379 S.E.2d 834, 324 N.C. 452.
2. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82
L.Ed.2d 260.
3. U.S.-U.S. v. Browning-Ferris Industries of Georgia, Inc.,
D.C.Ga., 555. F.Supp. 595.
4. U.S.-U.S. v. Browning-Ferris Industries of Georgia, Inc.,
D.C.Ga, 555 F.Supp. 595.
38AC.J.S.
lates equal protection,
3
and criteria may be em-
ployed even if they haver a disproportionate impact.
4
Discrimination in the selection of grand jury
foremen does not threaten the due process' inter-
ests of accused.
5
The role of the foreman of a
federal grand jury is not so significant to the
administration of justice that discrimination in the
appointment of that office impugns the fundamen-
tal fairness of the process itself or invades due
process interests.
6
Discrimination in the appoint-
ment of grand jury foremen does not impair ac-
cused's due process interest in assuring that the
grand jury includes persons with a range of experi-
ences and perspectives.
7
The due process concern
that no large and identifiable segment of the com-
munity be excluded from jury service does not
arise when the alleged discrimination pertains only
to the selection of a foreman from among the
members of a properly constituted federal grand
jury.8
The fair cross section requirement does not ap-
ply to the selection of the foreman.
9
Since discrimination in the selection of the fore-
man does not violate due process and only violates
equal protection, a conviction should not be set
aside where accused is not a member of the group
discriminated against.lO This is true at least where
selection of the foreman does not involve the selec-
tion of an additional member of the grand jury, and
Ga.-Ingram v. State, 323 S.E.2d 801, 253 Ga. 622, certiorari denied
105 S.Ct. 3538, 473 U . ~ . 911, 87 L.Ed.2d 661, rehearing denied 106
S.Ct. 20, 473 U.S. 927, 87 L.Ed.2d 697, denial of habeas corpus
affirmed Ingram v. Zant, 26 F.3d 1047, rehearing denied 36 F.3d 96,
certiorari denied Ingram v. Thomas, 115 S.Ct. 1137, 130 L.Ed.2d
1097, rehearing denied 115 S.Ct. 1444, 131 L.Ed.2d 323.
6. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82
L.Ed.2d 260.
7. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82
L.Ed.2d 260.
8. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82
L.Ed.2d 260.
9. U.S.-U.S. v. Sneed, CA.Ga., 729 F.2d 1333.
U.S. v. Abell, D.C.Me., 552 F.Supp. 316, 68 AL.R.Fed. 157-U.S.
v. Musto, D.C.N.J., 540 F.Supp. 346, affirmed U.S. v. Aimone, 715
F.2d 822, certiorari denied Dentico v. U.S., 104 S.Ct. 3585, 468 U.S.
1217,82 L.Ed.2d 883 and 104 S.Ct. 3586, 468 U.S. 1217,82 L.Ed.2d
883.
N.J.-State v. Ramseur, 524 A2d 188, 106 N.J. 123, denial of habeas
corpus affirmed 983 E2d 1215, certiorari denied 113 S.Ct. 2433, 508
U.S. 947, 124 L.Ed.2d 653.
Jury Selection and Service Act
U.S.-U.S. v. Geller, D.C.Pa., 568 F.Supp. 1121.
5. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82 10. U.S.-Hobby v. U.S., N.C., 104 S.Ct. 3093, 468 U.S. 339, 82
L.Ed.2d 260. L.Ed.2d 260.
376
8A C.J.S.
nay be em-
late impact.
4
grand· jury
ocess inter-
reman of a
!ant to the
ation in the
fundamen-
nvades due
he appoint-
impair ac-
Ig that the
'e of experi-
ess concern
of the com-
e does not
only
among the
leral grand
oes not ap-
)f the fore-
Illy violates
not be set
, the group
,east where
the selec-
djury,and
rtiorari denied
ing denied 106
habeas corpus
ied 36 F.3d 96,
" 130 L.Ed.2d
3.
U.S. 339, 82
U.S. 339, 82
U.S. 339, 82
1ed. 157-U.S.
Aimone, 715
1585, 468 U.S.
,7, 82 L.Ed.2d
trial of habeas
'.C!. 2433, 508
U.S. 339, 82
, Itil
38A C.J.S.
the role of the foreman is ministerial.
ll
Thus,
where accused is not a member of the group,
accused lacks standing to challenge the discrimina-
tion.
12
Where accused is a member of the group,
accused's equal protection challenge should be eval-
uated without reference to whether the foreman's
duties are ministerial, and without inquiry into
whether discrimination affected the outcome.
13
However, some authorities suggest that no one can
raise an equal protection challenge unless the fore-
man's duties are more than ministerial.
14
Discrimination against blacks in the process of
selecting a foreman cannot be corrected by the
selection of a black person as foreman by a racially
discriminatory method.
I5
h. Showing of Violation
In order to show that an equal protection violation has
occurred in the context of grand jury foreman selection, accused
11. U.S.-Hobby v. U.S., N.C., 104 S.C!. 3093, 468 U.S. 339, 82
L.Ed.2d 260.
12. U.S.-Sheffield v. Lack, M.D.Tenn., 702 F.Supp. 634, affirmed
862 F.2d 316.
Tenn.-State v. McKay, 680 S.W.2d 447, certiorari denied Sample v.
Tennessee, 105 S.C!. 1412, 470 U.S. 1034, 84 L.Ed.2d 795 and 105
S.Ct 1412, 470 U.S. 1034, 84 L.Ed.2d 795, dismissal of habeas
corpus affirmed 1994 WL 568388, appeal denied, rehearing denied,
affirmed 1995 WL 66563, affirmed 1996 WL 417664.
13. N.C.-State v. Cofield, 357 S.E.2d 622, 320 N.C. 297, appeal after
remand 379 S.E.2d 834, 324 N.C. 452.
14. N.J.-State v. Ramseur, 524 A2d 188, 106 N.J. 123, denial of
habeas corpus affirmed Ramseur v. Beyer, 983 F.2d 1215, certiorari
denied 113 S.C!. 2433, 508 U.S. 947, 124 L.Ed.2d 653.
15. N.C.-State v. Moore, 404 S.E.2d 845, 329 N.C. 245.
16. U.S.-Rose v. Mitchell, Tenn., 99 S.C!. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
Whether accused mUst be member of group see supra subdivision a of
this section.
17. U.S.-Rose v. Mitchell, Tenn., 99 S.C!. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
18. U.S.-Rose v. Mitchell, Tenn., 99 S.C!. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
Criteria
In cases in which statistical difference between general population of
particular group or class allegedly singled out for discriminatory treat·
ment in selection of grand jury forepersons and percentage of same
GRAND JURIES § 55
generally must show that the procedure resulted in suhstantial
underrepresentation of an identifiable group.
In order to show that an equal, protection viola-
tion has occurred in the context of grand jury
foreman selection, accused generally must show
that the procedure employed resulted in substantial
underrepresentation of an identifiable groUp.I6
The :first step is to establish that the group is one
that is a recognizable, distinct class, singled out for
different treatment under the laws, as written or
applied.
I7
Next, the degree of underrepresentation
must be proved, by comparing the proportion of the
group in the total population to the proportion
called to serve as foreman over a significant period
of time. IS Finally, a selection procedure that is
susceptible of abuse or is not neutral supports the
presumption of discrimination raised by the statisti-
ods of time before and after such venire change would not be treated
separately for purpose of determining prima facie case.
U.S.-Guice v. Fortenberry, C.ALa., 722 F.2d 276, rehearing denied
726 F.2d 752.
(2) "SignificaDt period of time" was not limited to passage of act,
which directed nondiscriminatory random selection process for grand
and petit jurors; to' so limit relevant period would be to hold that
defendant failed to state prima facie case simply because state had
eliminated one admittedly discriminatory step in its foreman selection
process.
U.S.-Johnson v. Puckett, C.A.5(Miss.), 929 F.2d 1067, certiorari
denied 112 S.C!. 274, 502 U.S. 898, 116 L.Ed.2d 226.
(3) Crucial period was when the new jury selection act went into
effect.
Miss.-Johnson v. State, 404 So.2d 553, denial of habeas corpus
reversed Johnson v. Puckett, 929 F.2d 1067, certiorari denied 112
S.C!. 274, 502 U.S. 898, 116 L.Ed.2d 226.
. Population
(1) Although the preference is for proof based on eligible popula.
tion, proof of percentages in the total popUlation is acceptable; howey·
er, evidence of a greater disparity is reqnired when accused's case rests
on total population figures.
U.S.-U.S. v. Jenison, D.C.fla., 485 F.Supp. 655.
(2) Court should compare proportion in grand jury panels of the
group allegedly discriminated against to the proportion called to serve
as foremen.
group or class represented in office of grand jury foreperson is fla.-Andrews v. State, 443 So.2d 78.
arguably substantial, court must look beyond figures to other criteria
such as number of years involved, size of sampling, and number of (3) Relevant population included disqualified grand jurors from
class in population. . selecting official had to choose.
U.S.-Bryant v. Wainwright, C.Afla., 686 F.2d 1373, rehearing denied U.S.-U.S. v. Browning-Ferris Industries of Georgia, Inc., D.C.Ga.,
691 F.2d 512, certiorari denied 103 S.C!. 2096, 461 U.S. 932, 77 555 F.Supp. 595.
L.Ed.2d 305.
Period
(1) Absent sufficient evidence that selection process materially
changed following elimination of allegedly racially biased venire, peri·
Sample size
To present prima facie case of discrimination in selection of grand
jury forepersons, test sample must be large enough to convince court
that any disparity is not due to chance or inadvertence.
377
IIII'
§ 55 GRAND JURIES
cal showing.
19
Thus, it has been held that a prima
facie case requires a showing of three things,20
although there is authority to the contrary.21
The mere fact that a state has a history of
discrimination is insufficient to establish a prima
facie case.
22
Only if accused establishes a prima facie case
does the burden shift to the government to rebut
that prima facie case.23 The prima facie case may
be rebutted by evidence that neutral criteria were
used.
24
Rebuttal testimony should be viewed with
a great deal of scrutiny.25
§ 56. Oath of Jurors
a. In general
b. Form of oath; mode of administering
c. Record of oath
a. In General
Grand jurors must be sworn and the oath is to be adminis·
tered by the officer designated by law.
Library References
Grand Jury <S=>22.
It is essential to the legal existence and compe-
tency of a grand jury that all the jurors be sworn.
26
U.S.-Bryant v. Wainwright, C.A.Fla., 686 F.2d 1373, rehearing denied
691 F.2d 512, certiorari denied 103 S.Ct. 2096, 461 U.S. 932, 77
L.Ed.2d 305.
19. U.S.-Rose v. Mitchell, Tenn., 99 S.Ct. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
Selection by judge
Selection procedure by which district judge impaneling grand jury
selects forepersons is susceptible of discrimination, since district judge
knows race and sex of grand jurors prior to selecting grand jury
foreperson.
U.S.-U.S. v. Hohnan, D.C.Fla., 510 F.Supp. 1175.
20. U.S.-Ellis v. Lynaugh, C.A.5(Tex.), 873 F.2d 830, certiorari
denied 110 S.Ct. 419, 493 U.S. 970, 107 L.Ed.2d 384-Bryant v.
Wainwright, C.A.Fla., 686 F.2d 1373, rehearing denied 691 F.2d 512,
certiorari denied 103 S.Ct. 2096, 461 U.S. 932, 77 L.Ed.2d 305.
21. Alternative showings
Defendant may establish prima facie case of racial discrimination in
selection of grand jury foreman either by showing that selection
procedure was not racially neutral or that relatively few blacks had
served as foren:ten for substantial period in the past.
N.C.-State v. Phillips, 399 S.E.2d 293, 328 N.C. 1, certiorari denied
111 S.Ct. 2804,501 U.S. 1208, 115 L.Ed.2d 977.
22. U.S.-Rose v. Mitchell, Tenn., 99 S.Ct. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
23. U.S.-Rose v. Mitchell, Tenn., 99 S.Ct. 2993, 443 U.S. 545, 61
L.Ed.2d 739.
24. U.S.-Johnson v. Puckett, C.A.5(Miss.), 929 F.2d 1067, certiorari
denied 112 S.Ct. 274, 502 U.S. 898, 116 L.Ed.2d 226.
38A C.J.S.
Reswearing.
It has been held that grand jurors when recalled
need not be resworn.27 However, where the grand
jury serving a court has been discharged for the
term, and the court has finally adjourned for the
term, the court, unless authorized by statute, can-
not require the attendance of such discharged ju-
rors, so as to empower them, without being again
sworn or charged, to perform the duties of a grand
jury.28
Who may administer oath.
In the absence of a statute designating the offi-
cer to administer the oath, any officer authorized to
administer oaths generally may, at the direction of
the court, lawfully administer the prescribed oath
to the grand jury.29 A grand jury may be lawfully
sworn by one who is merely a de facto officer.30
b. Form of Oath; Mode of Administering
The form of oath required of grand jurors must be substan-
tially observed, and in the absence of statutory directions the
mode of administering the oath is a matter of practice.
The form of oath administered to grand jurors is
of ancient origin31 and generally remains substan-
tially unchanged.
32
There are, however, some stat-
Selection by grand jurors
Finding that state rebutted prima facie showing was sufficiently
supported by evidence that foreman was selected by fellow grand
jurors, and lack of evidence that jurors acted in other than racially
neutral manner.
N.C.-State v. Phillips, 399 S.E.2d 293, 328 N.C. 1, certiorari denied
111 S.Ct. 2804, 501 U.S. 1208, 115 L.Ed.2d 977.
25. U.S.-Gnice v. Fortenberry, c.A.La., 722 F.2d 276, rehearing
denied 726 F.2d 752. -
Mo.-State v. Garrett, 627 S.W.2d 635, certiorari denied 103 S.Ct. 208,
459 U.S. 906, 74 L.Ed.2d 166, habeas corpus granted Garrett v.
Morris, 815 F.2d 509, certiorari denied Jones v. Garrett, 108 S.Ct.
233, 484 U.S. 898, 98 L.Ed.2d 19l.
26. Miss.-Walton v. State, 112 So. 790, 147 Miss. 851.
Ohio-State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs. 766.
27. Fla.-Hick v. State, 120 So. 330, 97 Fla. 199.
Ill.-People v. McCauley, 100 N.B. 182, 256 Ill. 504.
Tex.-Gay v. State, 49 S.W. 612, 40 Tex.Cr. 242.
28. Ga.-Braxley v. State, 85 S.B. 888, 143 Ga. 658.
29. Ga.-Godbee v. State, 81 S.E. 876, 141 Ga. 515.
Ill.-Allen v. State, 77 Ill. 484.
30. Ga.-Godbee v. State, 81 S.E. 876, 141 Ga. 515.
Va.-Hord v. Commonwealth, 4 Leigh 674, 31 Va. 674.
31. U.S.-Hale v. Henkel, N.Y., 26 S.Ct. 370, 201 U.S. 43, 50 L.Ed.
652.
32. U.S.-Hale v. Henkel, N.Y., 26 S.Ct. 370, 201 U.S. 43, 50 L.Ed.
652.
378
8A C.J.S.
hen recalled
~ e the grand
'ged for the
ned for the
,tatute, can-
;charged ju-
being again
s of a grand
ing the offi-
uthorized to
direction of
,cribed oath
r be lawfully
~ t o officer.
30
inistering
lUst be substan-
, directions the
tice.
md jurors is
ins substan-
r, some stat-
was sufficiently
by fellow grand
ner than racially
certiorari denied
j 276, rehearing
.ed 103 s.n. 208,
anted Garrett v.
;ariett, 108 S. n.
;1.
Law Abs. 766.
t
U.S. 43, 50 L.Ed.
U.S. 43, 50 L.Ed.
38A C.J.S.
utes prescribing its form.33 The form of oath,
whether that required at common law or by statute,
must be substantially observed.34
Affirmation.
It is provided under some statutes that if a grand
juror has conscientious scruples against taking an
oath he may make affirmation in lieu thereof.
35
Mode of administering oath.
In the absence of statutory provision, the mode
of administering the oath is purely a matter of
practice.
36
In the absence of a statute to the
contrary, a grand juror may be sworn by holding
up his hand instead of by laying his hands upon the
Gospe1.
37
c. Record of Oath
The administration of the oath to the grand jurors ordi-
narily should be shown by the record.
The record should show that an oath was admin-
istered to the grand jurors.
38
The swearing of the
grand jury cannot be presumed from the fact that
the record states that the grand jury was impan-
eled, or from the fact that the court charged the
jury and sent it to its labors.39
Where the record states that the grand jury was
duly sworn, the presumption is that the legal oath
was administered,40 and that it was administered in
the mode prescribed by law.
41
The objection that
the minutes do not show affirmatively that the
foreman of the grand jury which found the indict-
ment was duly appointed and sworn comes too late
after plea and trial.
42
§ 57. Substitution of Jurors
A court having power to excuse or discharge a grand juror
after the organization of the grand jury has power to substitute
33. Ill.-People v. lieber, 192 N.E. 331, 357 Ill. 423.
Ohio--State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs. 766.
Wis.-State v. Lawler, 267 N.W. 65, 221 Wis. 423, 105 AL.R. 568.
34. Ark.-Brown v. State, 10 Ark. 607.
35. Mass.-Commonwealth v. Smith, 9 Mass. 107.
36. Ark.-Brown v. State, 10 Ark. 607.
37. N.Y.-People v. Rose, 4 N.Y.S. 787,52 Hun 33.
38. Ala.-Roe v. State, 2 So. 459.
Ill.-People v. Green, 161 N.E. 83, 329 Ill. 576.
39. Mo.-State v. Hurst, 99 S.W. 820, 123 Mo.App. 39.
40. W.Va.-State v. Angus, 74 S.E. 998, 70 W.Va. 772.
41. Ill.-People v. Dear, 121 N.E. 615, 286 Ill. 142, error dismissed 39
S,Ct. 493, 250 U.S. 635, 63 L.Ed. 1182-People v. Miller, 106 N.E.
191, 264 Ill. 148.
42. La.-State v. Owens, 58 So. 557, 130 La. 746.
GRAND JURIES § 57
another grand juror; this power of substitution is sometimes
expressly conferred by statute. However, some authorities hold
that substitution is improper.
Research Note
Completion of defective panel of potential jurors is considered
supra §§ 49, 50.
Library References
Grand Jury <$=>12, 20.
Apart from any statutory provision, a court hav-
ing power to excuse or discharge a grand juror
after the organization of that body has power to
substitute another qualified juror in his place.
43
In
the absence of any statute prescribing the course to
be pursued in procuring jurors to fill vacancies, the
method to be used is within the sound discretion of
the court.
44
Under some statutes, provision is made for the
selection, drawing, summoning, and impaneling of
additional grand jurors to supply a deficiency in the
number of grand jurors resulting from discharge or
excuse of jurors or other causes after the organiza-
tion of the grand jury.45 Such provisions have been
held directory rather than mandatory.46 It will be
presumed, in the absence of evidence to the con-
trary, that in substituting new jurors the court
acted in conformity with the statutes.
47
Under some statutes, substitutes should be taken
from among the remaining members of the panel,48
and such members should be summoned.
49
Under
other statutes, where surplus jurors have been
dismissed, new names should be drawn from the
jurybox.
50
Some authorities hold that the substitution of
jurors is improper,51 and that a substituted juror is
43. Ark.-Sharp v. State, 3 S.W.2d 23, 175 Ark. 1083.
La.-State v. Henry, 3 So.2d 104, 197 La. 999-State v. Phillips, 114
So. 171, 164 La. 597.
Miss.-Posey v. State, 38 So. 324, 86 Miss. 141.
44. Filling vacancies from bystanders
Miss.-Posey v. State, 38 So. 324,86 Miss. 141.
45. Ala.-Ex parte Lawler, 64 So. 102, 185 Ala. 428.
46. N.M.-State v. Apodaca, App., 735 P.2d 1156, 105 N.M. 650,
certiorari denied 735 P.2d 535, 105 N.M. 618.
47. Tenn.-Turner v. State, 69 S.W. 774, 111 Tenn. 593.
48. Iowa-State v. Dohm, 259 N.W.2d 801.
49. Iowa-State v. Dohm, 259 N.W.2d 801.
50. Okl.-Grand Jury of Seminole County v. Dye, 571 P.2d 1200.
51. Pa.-Commonwealth v. Levinson, 389 A2d 1062, 480 Pa. 273, 2
AL.RAth 964.
379
§ 57 GRAND JURIES
not even a de facto juror.
52
Federal grand jury.
In the case of a federal grand jury, if the court
permanently excuses a juror, the court may impan-
el another person in place of the juror excused.
53
The court may direct that alternate jurors may be
designated at the time a grand jury is selected.
54
Alternate jurors in the order in which they were
designated may thereafter be impanelled if jurors
are permanently excused.
55
§ 58. Increasing Number of Jurors
After a grand jury has been organized the court may,
according to some authorities, increase the number of jurors.
Library References
Grand Jury CSo>12, 20.
38A C.J.S.
According to some authorities, it is proper for
the court to increase the number of grand jurors
within the prescribed limits or to allow a grand
juror to join the grand jury after it has been
impaneled, sworn, and charged.
56
Such authority is
sometimes conferred by statute.
57
The fact that one summoned to act as a grand
juror, but who fails to appear until the grand jury
is impaneled, sworn, and charged, is sworn as a
grand juror and then excused without retiring with
that body is a mere superfluous act, and does not
affect the legality or competency of the grand jury
as organized. 58
H. OBJECTIONS AND CHALLENGES TO GRAND JURY OR JUROR
§ 59. In General
A challenge is a preliminary objection taken to the jurors
summoned and returned to serve as grand jurors.
Library References
Grand Jury CSo>17, 18.
WESTLAW ELECTRONIC RESEARCH
See WESTLA W Electronic Research Gnide following Preface.
The right to object to a grand jury presupposes
an opportunity to exercise that right. 59
A challenge is a preliminary exception or objec-
tion taken to the jurors summoned and returned to
serve as grand jurors.
60
It is a right only to object
and not to select.
61
The right of challenge is not a
proceeding under which the trial judge may be
himself put on trial, or required to pass on or
consider the truth or falsity of charges of bias,
partiality, or unfairness made against himself,62 nor
52. Pa.-Commonwealth v. Levinson, 389 A.2d 1062, 480 Pa.273, 2
A.L.R.4th 964.
53. Fed.Rules Cr.Proc., Rule 6(g), 18 U.S.C.A.
54. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.C.A.
55. Fed.Rules Cr.Proc., Rule 6(c), 18 U.S.C.A.
En masse impaneling of alternates proper
U.S.-u.S. v. Jones, M.D.F1a., 676 F.Supp. 238.
56. Miss.-Posey v. State, 38 So. 324, 86 Miss. 141.
57. Ala.-Osbom v. State, 45 So. 666, 154 Ala. 44.
58. Ala.-Compton v. State, 23 So. 750, 117 Ala. 56.
59. U.S.-Reece v. State of Georgia, Ga., 76 S.C!. 167,350 U.S. 85,
100 L.Ed. 77, rehearing denied 76 S.C!. 297, 350 U.S. 943, 100 L.Ed.
822, opinion conformed to 91 S.E.2d 29, 213 Ga. 161.
is the court obligated to pass on the guilt or
innocence of accused.
63
Challenges to grand jurors are divided primarily
into challenges to the array and challenges to the
polls.54
The burden is on the person challenging the
grand jury to establish his cause of challenge.
55
The fact which is to constitute the ground for
challenge must, as a general rule, be established in
the manner in which other facts are proved.
66
Statutes sometimes require challenges to be sup-
ported by affidavit setting forth the ground of
challenge.
67
It has been held that the right to be present at
the impaneling of the grand jury and to make a
challenge either to the polls or to the array is a
substantial right, the denial of which by the court
renders the grand jury incompetent to sit on the
60. Cal.-People v. Travers, 26 P. 88, 88 C. 233.
61. N.C.-State v. Mallard, 114 S.E. 17, 184 N.C. 667.
62. Colo.-People ex reI. Bonfils v. District Court of Second Judicial
District, 66 P. 1068, 29 Colo. 83.
63. Ohio-State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs.
766.
64. Colo.-People ex reI. Bonfils v. District Court of Second Judicial
District, 66 P. 1068, 29 Colo. 83.
65. Iowa-State v. Howard, 10 Iowa 101.
Tex.-Wright v. State, 158 S.W.2d 787, 143 Tex.Cr. 447.
66. CaJ.-People v. Travers, 26 P. 88, 88 C. 233.
67. Ind.-McClary v. State, 75 Ind. 260.
380
:A C.J.S.
proper for
~ a n d jurors
IW a grand
; has been
authority is
as a grand
grand jury
sworn as a
'etiring with
nd does not
~ grand jury
he guilt or
ed primarily
mges to the
llenging the
, challenge.
65
ground for
stablished in
Il"e proved.
66
s to be sup-
e ground of
le. present at
d to make a
Ie array is a
by the court
to sit on the
57.
of Second Judicial
3 Ohio Law Abs.
of Second Judicial
447.
38A C.J.S.
case,68 and that it is immaterial that the challenge
of accused might have proved ineffectual.
69
§ 60. Panel or Array
a. In general
b. Grounds of challenge
a. In General
A challenge to the panel or array is a fonnal objection to
the entire panel of grand jurors.
Library References
Grand Jnry e->16, 17.
A challenge to the panel or array is a formal
objection to the entire panel of grand jurors sum-
moned and returned.
70
The basis of a challenge to
a grand jury panel is that something has been done
or omitted to the prejudice of the substantial rights
of the challenging party.71 However, the court is
not called on, nor does it undertake, to pass on the
guilt or innocence of accused.72
It has been held that accused has the right to
challenge a grand jury on the ground that it was
improperly selected,73 and a right to challenge the
array 74 on the ground that it was not selected in
accordance with law,75 and that this right arises
under common law,76 or is a constitutional right.77
However, it has been said that it appears doubt-
ful whether the right to challenge the array existed
at common law.
7s
Some authorities do not recog-
nize the right of challenging the array.79 Some
statutes have either abolished the right to chal-
68. Mo.-State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015-State v.
King, 119 S.W.2d 277, 342 Mo. 975.
Nev.-William J. Burns International Detective Agency v. Doyle, 208
P. 427, 46 Nev. 91, 26 AL.R. 600.
69. Mo.-State v. Warner, 65 S.W. 584, 165 Mo. 399.
70. Colo.-People v. Second Judicial Dist Ct., 63 P. 1068, 29 Colo.
83.
71. N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
72. Ohio-State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs.
766.
73. Conn.-State v. Avcollie, 453 A2d 418, 188 Conn. 626, certiorari
denied 103 S.Ct. 2088, 461 U.S. 928, 77 L.Ed.2d 299.
Motion to qnash venire
Ala.-Mullins v. State, 130 So. 527, 24 AlaApp. 78, certiorari denied
130 So. 530, 222 Ala. 9.
74. ill.-People v. Green, 161 N.E. 83, 329 ill. 576.
Obio-State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs. 766.
75. Pa.-Commonwealth v. Millbouse, 386 A2d 581, 255 Pa.Super.
206.
GRAND JURIES § 60
lenge the array altogether, or restricted the
grounds of challenge within very narrow limits.
so
The right to challenge the array does not include
the right to subject a grand jury or grand jurors to
a voir dire.
Sl
Investigation of a panel is proper
only if there are reasonable grounds to suspect that
the panel is improperly constituted.
82
Federal grand jury.
In the case of a federal grand jury, the array
may be challenged on the ground that the grand
jury was not selected, drawn, or summoned in
accordance with law.
83
A motion to dismiss the
indictment may be based on objections to the ar-
ray, if not previously determined upon challenge.
54
h. Grounds of Challenge
Where statutes provide that a challenge to the array of
grand jurors may be interposed for certain enumerated causes
only, the courts have no power to allow challenges on other
grounds.
At common law a challenge to the array of grand
jurors was founded on some partiality or default of
the sheriff, or his under officer.
85
A challenge to
the array will lie for bias, partiality, or irregular
action on the part of the sheriff, where, as at
common law, the manner of forming a grand jury,
so far as the selection, summoning, and return of
the panel is concerned, is a matter within the
discretion of that officer.
86
Where the method of
selecting, drawing, and summoning grand jurors is
prescribed by statute, objections to departures
from the statutory directions may be raised by
challenge to the array.S7 However, mere irregular-
77. Even in case of investigating grand jury
Pa.-Commonwealth v. Polof, 374 A2d 1299, 248 Pa.Super. 26.
78. Vt.-State v. Ward, 14 A 187, 60 Vt. 142.
79. Vt.-State v. Ward, 14 A 187, 60 Vt. 142.
80. Mo.-State v. Seidler, App., 267 S.W. 424.
N.D.-State v. Walla, 224 N.W. 211, 57 N.D. 726.
81. Pa.-Commonwealth v. Millbouse, 386 A2d 581, 255 Pa.Super.
206.
82. Conn.-State v. Avcollie, 453 A2d 418, 188 Conn. 626, certiorari
denied 103 S.Ct. 2088, 461 U.S. 928, 77 L.Ed.2d 299.
83. Fed.Rules Cr.Proc., Rule 6(b)(1), 18 U.S.CA
84. Fed.Rules Cr.Proc., Rule 6(b)(2), 18 U.S.CA
85. N.D.-State v. Walla, 224 N.W. 211,57 N.D. 726.
86. N.J.-State v. Kelly, 70 A 342, 76 NJ.L. 576-Gibbs v. State, 45
N.J.L. 379, affirmed 46 N.J.L. 353.
87. Ohio-State v. Weible, 25 Ohio N.P.N.S. 564, 3 Ohio Law Abs.
766.
Pa.-Brown v. Commonwealth, 73 Pa. 321.
Lack of Notice
76. Pa.-Commonwealth v. Millbouse, 386 A2d 581, 255 Pa.Super. Fact that defendant was not given notice that grand jury was
206. considering her case did not indicate grand jury was not selected,
381

GRAND JURIES

m that the business II'chaser can attend to.

GRAND JURIES
Analysis

r

auld not be broader for the protection

I. IN GENERAL, §§ 1-12 II. COMPOSITION AND FORMATION, §§ 13-67 A DISCRIMINATION; FAIR CROSS SECTION, §§ 13-19 B. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS, §§ 20-34 C. EXEMPTIONS, §§ 35--36 D. SELECTION AND DRAWING, §§ 37-44 E. SUMMONING JURORS, §§ 45-48 F. COMPLETION OF DEFECTIVE PANEL, §§ 49-50 G. IMPANELING AND ORGANIZATION; §§ 51-58 H. OBJECTIONS AND CHALLENGES TO GRAND JURY OR JUROR, §§ 59-65 I. DISCHARGING OR EXCUSING JURORS, §§ 66-67 TERM OF SERVICE AND SESSIONS, §§ 68-73 CHARGE, §§ 74-75 POWERS AND DUTIES, §§ 76--84 PRESENTMENT OR REPORT, §§ 85-90 CONDUCT OF PROCEEDINGS, §§ 91-110 WITNESSES AND EVIDENCE, §§ 111-175 A IN GENERAL, §§ 111-112 B. OBLIGATION AND COMPULSION TO APPEAR, TESTIFY, OR PRODUCE EVIDENCE IN GENERAL, §§ 113-124 C. ENFORCEMENT OF PROCESS BY COURT IN GENERAL, §§ 125-127 D. GROUNDS FOR NONCOMPLIANCE WITH, AND JUDICIAL REVIEW OF, PROCESS, §§ 128-141 E. PRIVILEGE, §§ 142-151 F. RELATION OF INQUIRY TO ILLEGALLY OBTAINED EVIDENCE, §§ 15~154 G. CONTEMPT, §§ 155-163 H. EXAMINATION OF WITNESS, §§ 164-167 I. PRESENTATION OF EVIDENCE, §§ 168-170 J. ADMISSIBILITY OF EVIDENCE, §§ 171-173 K. SUFFICIENCY OF EVIDENCE, §§ 174-175 SECRECY AS TO PROCEEDINGS, §§ 176-193 A IN GENERAL, §§ 176-179 B. AUTHORIZED DISCLOSURE OF PROTECTED MATERIALS, §§ 180-189 C. REMEDY OR SANCTION FOR VIOLATION OF SECRECY REQUIREMENTS, §§ 190-193
See also General Index

ges.

relief in equitable mting for damages r be authorized. I6

N.E. 199, 195 Mass. 292. 121 A. 69, 13 Del.Ch.

I,

319

Prior service as juror . Conviction of. Scope of title . Standing of accused .p 330 3. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS .p 353 B. . In general. Relation to other bodies and officers .p 338 8. exemptions.p 354 21. . Knowledge of language. Freeholder or householder . or prejudice .p 356 27. Public officers or employees .p 351 18. and excuses . bias. §§ 194-195 38A Sub-Analysis I. Qualifications. DISCRIMINATION. LIABILITIES.Special or emergency grand juries .p 340 10.p 349 17. Particular methods of selection . Citizenship . Showing of violation .p 360 32.p 361 See also General Index 320 .. Residence .Grand juries for special terms .p 346 15. Constitutional and statutory provisions in general. In general.p 355 24. Impartiality in general.p 355 22. De facto grand jury or juror .p 360 31. Authority of courts to convene grand juries .p 359 29. Religious or political beliefs and alliances . crime . IN GENERAL-p 330 § 1.p 330 2. or pending prosecution for. Origin and history . Business or occupation . FAIR CROSS SECTION .p 355 23. Age .p 337 7. Infirmity ..p 357 28. Groups covered . literacy . Interest.p 361 33.p 359 30.p 356 26.p 342 A. Compensation of jurors .p 340 9.p 361 34.p 354 § 20. Taxpayer .p 333 4. General considerations .p 342 II.p 340 11.p 335 5.p 336 6. COMPOSITION AND FORMATION . .p 346 16. Qualification as elector or voter . Right to particular composition .p 342 § 13.p 342 14.p 341 12.GRAND JURIES X.p 356 25. Improper purpose .p 352 19.

p 365 39. Writ . Increasing number of jurors . In general.p 362 D.p 389 See also General Index 321 . Correction and revision of jury list .p 372 50. In general. Panel or array . Jury Selection and Service Act . In general.S.Cont'd C. Oath of jurors . Protection and certification of lists or panels . Substitution of jurors . COMPLETION OF DEFECTIVE PANEL . Who may summon . EXEMPTIONS . Notice and time of selection -'.p 372 F. Apportionment of grand jurors . Time . and duties of foreman .p 382 62.p 368 44.C.p 380 § 59.' Discrimination. Waiver in general ~p 384 64.p 369 E.p 374 55.p 388 III.p 384 65.p 372 G.p 383 63. COMPOSITION AND FORMATION .p 363 38.p 387 67. Federal grand jury .p 369 § 45. Time of appearance and organization .p 374 54.p 373 53.p 366 41. In general. Record of selection and drawing .p 370 47. Number of jurors .p 386 . SUMMONING JURORS--:.p 368 43. DISCHARGING OR EXCUSING JURORS .p 371 48.p 379 58.p 366 40.p 362 § 35. qualifications.p 381 61.p 378 57. Size of jury panel. By whom selected and drawn . SELECTION AND DRAWING-p 363 § 37. In general.J.p 380 60. .p 372 § 49. Persons entitled to object .p 376 56.. fair cross section . In general. TERM OF SERVICE AND SESSIONS . IMPANELING AND ORGANIZATION -p373 § 51.p 387 § 66. Federal grand jury . In general. Appointment.p 389 § 68.p 362 36.p 373 52. GRAND JURIES al-p 336 337 mS-p354 -p356 II. OBJECTIONS AND CHALLENGES TO GRAND JURY OR'JUROR . Federal grand jury . Federal grand jury .p 380 H. In general. Individual jurors .p 369 46. 1.p 367 42.

.p 411 89.p 393 73.p 414 VII. Voting-p 417 94.. officers...Judicial review . PRESENTMENT OR REPORT .Cont'd § 69. Presence of grand jurors .p 406 84.. or ment-p 400 78.P 408 § 85.p 408 86.. . . .p 423 101. Source of information . . and institutions .Who may participate in general. Report ..p 404 81.P 415 § 91.p 391 71. . Access to grand jury by private complainant .Federal special grand juries . . In general. Continuance beyond term . .p 429 104. .P 401 79.p 390 70.P 398 § 76.Public interest. Presentment for criminal conduct-.Subject matter .p 430 See also General Index 322 .....p 422 100.p 392 72. Necessity or effect of preliminary examination.Special provisions for participation . arrest.p 425 102: Participation of prosecutor .p 417 95..Effect of adjournment of court ~ p 393 IV. .p 422 99. POWERS AND DUTIES .. .p 420 98.Effect of defense . In general. .p 405 82.Preparation . . Disposition .p 428 103. Character of charge . Special grand juries . CHARGE -p 394 § 74.. .p 415 92.p 416 93.p 412 90. CONDUCT OF PROCEEDINGS . TERM OF SERVICE AND SESSIONS .Stenographers and the like . . Participation of accused .p 403 80. Supervision by court -'. .p 398 77.Discharge of grand jury .p 418 96. Matters subject to investigation .p 420 97.Recalling dismissed grand jury .Effect of presence of unauthorized persons .Disqualification or conflict of interest .p 394 75.p 409 87.. In general. Limitations on who may participate .Particular persons .. Counsel for accused or witness ..GRAND JURIES III. Suspension or interruption of sessions .p 396 V.p 406 83.p 407 VI.p 409 88.

p 440 114.p 433 Private prosecutor .p 437 on. 107. Miscellaneous grounds for noncompliance . IN GENERAL .p 444 118. .p 436 Minutes or record of proceedings . .p 449 § 125.p 450 127.p 459 See also General Index 323 .p 456 134. Disposition of physical evidence .p 457 137.Issuance .p 440 B. Witnesses in general.. Arrest .p 431 . or -p 405 .Misconduct .p 454 133.p 456 136... PROCEEDINGS .p 450 D.. 106. Witnesses from without state . General considerations .-p420 ) 422 -p430 WITNESSES AND EVIDENCE ..p 446 121..p 452 131.p 453 .p 456 135. OR PRODUCE EVIDENCE IN GENERAL ..p 446 122. Multiple requests to same witness . Objections to jurisdiction or scope of investigation . Banks .. Process in general.p 440 § 113.p 441 115.p 447 123. 108.. 110.p 445 120. Proceedings in general. Existence of alternative source of information . Compulsion in general...Nature ofrole-p 432 .Personal jurisdiction and service .p 445 119.Time period .p 450 § 128. .p 442 116.GRAND JURIES CONDUCT OF § 105. PROCESS .Form and contents . . ENFORCEMENT OF PROCESS BY COURT IN GENERAL . In general. Right to Financial Privacy Act .Definiteness of description . Grand jury action as prerequisite to compulsion by court . arrest..p 457 138.. In general. First Amendment considerations .Prosecutor as witness .p 448 C. . Improper purpose .p 439 § 111.p 449 126.p 436 Independent counsel for grand jury -. 109.p 439 A. Obligation in general. 132.. Relevancy of evidence sought .p 459 139.p 443 117.p 450 129. Oppressiveness .p 439 112. TESTIFY. . AND JUDICIAL REVIEW OF.Cont'd . Presumption of validity of process .p 447 124.Termination of obligation . OBLIGATION AND COMPULSION TO APPEAR. GROUNDS FOR NONCOMPLIANCE WITH.p 451 130.

p 475 156.p 491 § 171. Work product . Appeal.p 488 169.p 495 See also General Index 324 .p 495 K.p 472 Wiretapping or other interception . ADMISSIBILITY OF EVIDENCE . Family relationship .p 490 J.Evidence ..p 485 § 164.p 465 147. WITNESSES AND EVIDENCE . Cross-examination or confrontation by accused . Illegally obtained evidence . . .. 144. Civil and criminal contempt in general.p 486 Warnings. Oath . 154. or disclosure to witness .p 481 161. SUFFICIENCY OF EVIDENCE . PRESENTATION OF EVIDENCE .p 482 Criminal sanctions . Appeal-p 484 H. In general.p 479 160.p 477 Necessity that question be proper .GRAND JURIES VIII. 163..p 473 G. In general. Standing-p 460 141.p 462 § 142.Spouse . Journalist .p 471 151. I. Evasive answers and the like .p 463 143.p 466 148. RELATION OF INQUIRY TO ILLEGALLY OBTAINED EVIDENCE-p § 152. Who determines admissibility .p 484 162. Tax records .p 461 E. Civil sanctions .p 478 158. 159. Duty to present or obtain evidence favorable to accused . In general.p 486 166.p 464 145.p 475 § 155. PRIVILEGE . Presentation of evidence by prosecutor . Proceedings . advice. EXAMINATION OF WITNESS . F.p 472 153.p 493 173.p 491 &11 172.p 488 § 168.p 462 Proceedings in general.p 468 Physician or health-care provider .p 464 146.p 485 165.p 470 149. Attorney . In general. Presentation of evidence by accused .Cont'd § 140.p 476 157.p 170. CONTEMPT .Procedure . . . In general. Miscellaneous privileges .p 471 150.p 486 167.

p 500 In general. 189. 195. In general. 186. 182.p 507 Particular factors . Federal grand jury .Cont'd § 174. 192.p 495 175.p 496 Purpose .GRAND JURIES WITNESSES AND EVIDENCE . 184.p 513 Proceedings for disclosure . REMEDY OR SANCTION FOR VIOLATION OF SECRECY REQUIREMENTS .p p490 See also General Index 325 .p 513 470 B. In general.p 511 Effect of termination of grand jury activities . disclosure ..p 498 Persons subject to secrecy requirements. 183.p 472 -p477 478 C.p 503 Automati.p 518 § 194.p 496 § 176.p 496 IX. 179.p 509 Privilege .c disclosure .p 503 § 180.p 499 Matters subject to secrecy requirements .p 519 * accused .p 496 IN GENERAL . General considerations . 181.p 517 .p 504 Disclosure related to proceeding in general. 178.Contempt .Proceedings . 187. 185.p 517 Liabilities of jurors .p 512 Extent of. -p488 lrable to accused . AUTHORIZED DISCLOSURE OF PROTECTED MATERIALS . and conditions upon.p 486 ~ss-p 486 LIABILITIES .p 518 Liabilities for interference with jury .p 515 191.p 516 .p 505 Standards in general. 193. A Hearsay . 188. oath . SECRECY AS TO PROCEEDINGS .p 512 Showing irregularity of grand jury proceeding . :NED EVIDENCE .p 515 § 190. 177..

J)r~~ta~~ed The material in the new volumes is derived from reported cases and legislation. please consult Black's Law and Words and Phrases. and for the featuring of the latest and most significant pronouncements of the courts. Garnishment. In carrying out this objective.. and Guaranty.J. This form is used in a generic sense so as to avoid sentences which could be grammatiawkward. while. As with other volumes of the set. Grand Juries. which have been eliminated from these volumes. containing various titles. Gifts. at the same time preserving those principles or statements of law which have withstood the test of time and are firmly embedded in our jurisprudence. Pursuant to the commitment to maintain the integrity and usefulness of C. modified. a new and revised edition of volume 38.S. Gas. such revisions provide an opportunity for reorganization of subject matter in accordance with modern editorial techniques designed to facilitate research. is published in replacement volumes 38 and 38A. For definitions. A table of corresponding sections is set forth following the section analysis of each to enable the reader to correlate the material of the prior volume 38 with that discussed in the re(~orrlpilled volumes. and a library reference to the relevant key number of West Digest System affords access to related areas. ·O'I>lnrl~. "his". THE PUBLISHER * v . the publisher has followed a planned program of replacement volumes for diverse areas where there have occurred substantial changes and developments in the law which can no longer be adequately dealt with in the pocket parts. Conservation and Preservation of Gaming.S. as used in this work are not intended to convey the masculine alone. or supplemented older doctrines.l" The pronouns "he". In addition to reflecting these developments.J. annual pocket parts will be published to supplement the volumes· relevant new cases and statutory changes.PREFACE The basic object of the C. and "him". set has been to present in concise form the result of the steady stream of precedents which have replaced. Each section is by a convenient summary of the law. including Game.

.................................................. ........................... 3333(e) ............. Note Sec...................... ............................................ 6(e) ...1 ..... 3333(b)(1) .. 6(e)(2) ........ .......... 3331(a) ......................... 92 93 124 3333(e)(2) ............................... .J............... 3332(b) ..... C.... 6.... Sec.A~ Sec........................................... .......... ..... Sec......... 2518(10)(a) ................. ... 3333(b)(2) .......... . . .. .........S..... 157 62 191 75 195 19 20 195 195 21 153 78 172 40 172 42 153 79 172 41 172 48 172 43 127 8 127 11 127 12 50 54 50 55 7 51 68 20 1504 ........ .................... 3420(a)(2) .........C... .... 6(b)(1) .......S...... ............... ...........-Banks and Banking 12 U.................A...... .... 3331(b) ......... 3401 et seq.................. C. Sec. 401(3) ......... 3333(a) ...S.................... 3333(e)(3) . Note 90 24 90 27 90 28 90 29 90 30 90 31 90 32 90 33 90 34 90 26 69 43 69 49 71 72 90 25 90 19 154 95 172 46 154 95 171 25 171 26 3333(e)(l) ...... el.... 6(d) ...C.... ................ 1503 .. Note 151 62 18 U........... 2511(l)(e) .............................. 6(b)(2) ............ 6(e)(1) .......... Note 124 86 140 80 124 87 91 124 124 ......S......S............... ........ .......A...... 3321 .............................. ..................................... ...........S....TABLE OF STATUTES AND REGULATIONS CITED UNITED STATES CODE ANNOTATED Constitution Sec......... 3504(a)(lr . 3144 .....................C.........S....... 3420(a)(4) .................. 3333(b) .................. Note Sec....... 6 30 53 78 60 83 15 61 62 33 64 56 60 84 61 16 64 57 65 63 54 96 54 97 54 98 54 99 57 54 57 55 95 2 95 7 16 95 95 83 96 27 102 60 102 61 103 72 104 85 105 98 176 84 191 62 192 79 110 4 110 15 110 97 176 96 178 32 178 33 178 34 327 . 2510-2521 .C...S...... ... 18 U... Sec... .....J..........J...A.......... 3420(a)(1) .... .J. ... ................ 3333(0 ...J..... 3504(b) ....... .... ............. UNITED STATES CODE ANNOTATED 12 U............. 3332(a) ..A......... C.......................................-Crimes and Criminal Procedure 18 U...... Rule 6(a)(1) ................ 6002 ...... ..............S...... ...C............. ..... ....... ............. 3333(d) .................. C..S.A........ 69 69 71 69 69 69 71 71 71 83 83 83 7 90 90 90 90 90 41 42 69 47 48 49 70 71 72 9 11 12 52 19 20 21 22 23 6(e) ... .. ............... C.... ...................... 3420(a)(3) .S......C..... ...... 2515 ..... Sec.. ........... ......... ....... 2518(9) ... .. Federal Rules of Criminal Procedure 18 U... ....

................. 6(e)(3)(D) ............. C.................... 28 28 26 24 48 48 48 48 81 69 44 ..S.. .. 161 52 161 59 162 76 161 56 6(e)(3)(A)(i) ..... .. ........ . .......................... ............A... ..... Note 142 13 142 15 142 14 111 30 28 U......... ... .. l232g(b)(2) ............... 1862 .................. ................ ...... C...C....... 17(g) . ........ 1865(b)(1) .......................... ..... ................ .. 17(a) .. .. ... ..... ...... ......... ............ 6(e)(3)(C)(ii) ..... ................... .. ..J............ 1865(b) . 1865(b)(5) . 6(e)(3)(C)(iii) ......... 6(e)(3)(C) .....................J... .S............................... 65 65 65 65 65 65 65 30 65 66 67 68 69 70 71 45 155 159 25 3 Sec..........S.. .. ........ Rule 501 ........... ..... ........ ... . 17(e)(1) ............. 1783 .... Federal Rules of Evidence 28 U. . ... . ... 1866(c) . .... .. 6(e)(3)(A)(ii) .... ..... Note 121 57 121 59 121 60 121 61 328 ... ......... ....... .. 1826(b) .................. .... . 2 ...... .................. .. ...... Note Sec. .. ...... . 6(e)(3)(C)(i) ..... 6(e)(3)(C)(iv) ..... 1826(a) ...-Education 20 U. .. 1867(e) . Sec. .. ......... C.S................ ....................S......C.........A. ....... 67 67 47 98 99 27 13 65 65 96 23 62 64 17(d) ......... 1865(b)(3) ...C............... 1867 ............................... .. ....... ......... ............ ........ 6(g) .S..................... . 1863(b)(5)(A)............... ........................ 6(e)(3)(B) ..S....S... .. ...... .................... .............A.TABLE OF STATUTES AND REGULATIONS CITED 18 U... .....................C...... .......... ........... 45 46 12(b)(1) ...................S.. 1863(b)(5)(B) ...... ............S. ....J..... 1867(d) ............................. 1 et seq.......A........ .... Sec......... ............ ..... 1101(d)(2) .......... .......A.....................C.. 1865(b)(4) ........ Sec..... . ....... ...... ........ 178 36 192 80 181 8 181 14 181 16 181 17 188 17 182 29 187 12 181 21 180 2 189 33 189 34 189 35 189 36 189 37 189 38 86 44 93 66 57 53 67 1 68 13 68 14 69 39 71 66 64 58 64 58 64 61 116 11 116 12 118 39 116 13 118 40 128 22 129 44 136 4 117 22 117 23 117 24 117 29 28 U.... ........ 1866(c)(2) ... .C....... 140 C........ 1861 . Note 84 1101(c) .. 163 13 13 18 13 18 36 36 30 20 21 90 16 17 18 18 21 92 91 45 48 50 23 33 63 68 33 34 1865(b)(2) ............. .... ........... .. 1867(a) .. Rule C....... 17(c) . ........ ....J......... .. 12(0 ............. Sec... .. .............. ............... 1863(b)(6) ............ .................... ...... ....-Judiciary and Judicial Procedure 28 U...... 42(b) ......... ..... ...... .S. ..... ..........C....S.J. 1866(b) .... 20 U.... ..A..... .. ..... Note Sec.... .... 1869(i) .... Sec.............................. ....... .A. 1867(b) ... . ..... Note Sec.. .. ... Sec..........A.S...... 6(e)(3)(E) .. .... 1826(a)(2) ........ 1863(b)(2) ......... 117 28 157 61 159 97 161 36 UNIFORM LAWS ANNOTATED U........ C..L. ... .. 12(b)(2) ........... ..................... 6(0 ..........17(e)(2) . .. ....................... . . . ..... 1867(0 ..J....... .... ........................................

............ 53 19 ............... 51 26 ..... 45................ 65 30 ......... 70. 74........21 59 60 121 l21 61 329 . 99..... 8 5 ... ... 9............ 51 17 ................ 63................85... 58 50 63 68 :s :s ~6 ~ :3 33 34 81 69 44 '45 l8 l8 l8 l8 46 47................. 92.71.............. 14-16............ 12 1 3 3 56 90 3 8 3 8 6 16 17 18 18 21 92 6 :0 :0 :1 :3 91 45 48 1 ..... 98 38 .. 54..... 69 33 .. 7 3 ................... 62............. 59.. 56 21 .. 2............ Note ~C...... Former Section New Section Former Section New Section 25 ... 102-109 41 ............... 86 36 ............... 111......S.. 110 45 .......J........................... Note 57 !c.. 194 46 ...J.............. 42 42 42 11 13 15 14 30 C. 94-97..... 68.S.................. 51 27 .......73 34 ... 19 13 ... 98 8 .............................................. 64.............................. 78 2 ..... 91-93 39 .............. : .112-167 42 ... 57 24 .................................. 46 15 ............47 16 ...........87-90 35 ........ 83 37 ... 43 10 ...... 55 20 .............. ......... i7 i7 ~7 98 99 96 23 62 64 65 66 67 L3 55 55 55 55 55 55 55 68 69 65 70 71 45 55 30 C........... 74. 74........... 27....................................... 37-39............................84..........20-34 7 ........ 98.......21 ......... 170 40 ................................ title GRAND JURIES corresponding to the new sections of this revision. 177-193 44 .......S........ 45................................ 41 12 ........... 18. 60...........'61....... 75 22 ......S......................... " Note 1 1 2 52 59 76 TABLE OF CORRESPONDING SECTIONS The following table lists the former sections of the C........... 2-5.... 40................................................ 42 11 ..................101......... 17...... 44 14 ....... 35 ' 9 .................. 63.................. 52 18 .. 195 47 ........................... 64.. ~ . 13........... '.. 72 6 . 7 4 ....J.171-176 43 ..... 66 32 ................. 100........................J....... 49 23 ...... 65 31 .. 65 29 ...................... 6......GRAND JURIES C................. 76-82............. 11.. 60 28 ... ....

759. 33 L. challenges and objections to grand jurors. 408 U. and requisites of such accusations. 418.C!. 665. Cal. 752 F. 273.W. 422--State v. body. 164. oppressive.2d 743-Branzburg v. See c. dissenting opinion United States v.). and to present all offenders against the law in the mode and manner defined by it. 449 U. and charged to inquire with regard to crimes committed within its jurisdiction..Y. 151 m.J. 468.2d 182. are selected and summoned to serve before a competent court and are A grand jury is a body of men selected and according to law to serve before a competent court and by such court impaneled. Burney.76.Y.S. 103 S. qualifications. Inc. Balance functions U.Va. 518.Ed.2d 803.-Geiger v. CA2(N. Witnesses.C!.--State v. 6.. Mass. and charged to inquire with regard to crimes committed within its jurisdiction and to present all offenders against the law.E.. Baumann.l Other subjects excluded from this title and treated in other titles include juries in general. Inc.2d 685. 2646. 480 N.2d 38. Coachman. 111 S. U.C!. 979.Dec. Hall v. 781 F.S.Fed. 90 L.2d 743. v.2d 89. D. LeFurge. See c. Conn.J.S. illinois.2d 657. 815.Y. 463 U.S.C!. See c."5 a term denoting a body with powers of investigation and inquisition.Y. 616 P. U.. certiorari denied Hayes v. 2. U. 176 Misc. Inc. by such court impaneled.S. Library References Grand Jury =1. Sells Engineering.S. secrecy as to their proceedings. 765 F. Cal. 2686.9 so that he s~oned I. 194 Conn. 323. N. Q'Danie!.2d 426. 29 N. 127 N. N.-In re Report of Grand Jury of Baltimore City. 92 S. 286 N. 1108. U. 570 A2d 1260. CA9(Nev. 165 Ariz.Ed. Md.S..Va. 92 S. 404. certiorari denied 106 S. General Considerations A grand jury is a body of men who.C!. 139 Ariz. the nature and constitution of such juries.W.J. filing. and compensation of grand jurors. Doe. U. 89 C.. 1192.--State v.2d 659.2d 405. 199 Colo. s First.Super.4 It is sometimes called a "grand inquest.Ed. 463 U.J. App.Ed. App.Ed.Y. Common law Dual role of the grand jury as investigator and protector is not embodied in a catalogue of reguiationsand rules for grand jury behavior but rather is described in the case law and legal authorities and passed along as part of our common-law heritage. 475 U.-U. 404. and the finding. 272 N. Caldwell. 77 L. according to law. N.J. certiorari denied Roe v. 101 N. Iowa-Maley v. U.-In re Disclosure of Grand Jury Material.J. the.-People v.S. 26. 62 Haw.S. 844.2d 259. 330 . v.C!. Myers. 152 Md. Hayes. 9.2d 445. 89 L. 239 N. 943. Coconino County Superior Court.R. 218 Conn. Scope of Title This title includes a discussion of bodies of persons sworn to inquire into and make presentment of public offenses. 125 Misc. 84 S. N. 143. II.Supp. and general conduct of business of grand juries. sworn. 266 N.S. 309.S.Y. Sanchez. 439 F. duties. § 2.J. 4. 461.J. sworn. 247 AD.. D. v.Y.§1 GRAND JURIES I. powers. App. 610 P. 229 Mo.C!.Y. 418.S.S. 1601.A 516..2d 550. the liabilities of grand jurors.Y. Ariz.2d 1383.606 P. U. 139 m. Triple function Ancient function of grand jury in Anglo-American system of justice has traditionally been to sort accusations of criminal conduct. 1636. In re Grand Jury Subpoena Served Upon Doe. Mo.2d 315.C. 469 U. N. 125 Ariz.C. It is an inquisitorial and accusatorial.S. 158. v. 137 A 370.2d 875.2d 664. and unwarranted criminal accusations. 221 Iowa 732. D. to advance public interest through discovery and indictment of persons chargeable with certain crimes.S. 2 and the privilege against self-incrimination. 33 L.. 228. Doe. Primary function Ariz.S.2d 1386.. affirmed 3 N. 483 A2d 649. Subjects excluded from this title and treated in other titles include indictments and presentments. the necessity for such accusations. 77 L. 678 P. District Court of Woodbury County. Indictments and Informations.--State v. Momoe.App. U. 199. it determines if there is probable cause to believe that a person has committed a crime.S. 100 Misc.S. 8. Couture.Supp. appeal after remand 589 A2d 343.W. IN GENERAL 38A C.~8.S. Claiborne. 645 F. 530. 665.S.2d 238. Md.D. 408 U. 243 U. Quinn. 83 L.2d 971.Ed. 475 U.S. 33.2d 626.S.-Commonwealth v.S.S.Ed.. N. 419 N. 1120.2d 914-U.S.-Gregory v. 3133. Maestas. 393 A2d 132. 571 N.S. m.C. 106 S.-Matter of Fuhrer. Div..E.S.S. certiorari denied 105 S. 3133.App.C.C!. 5. review denied. Hawaii--State v.-U.2d 703.S. 482 A2d 300.App.E.--State ex rel..-Application of Jordan.J. 83 AL. 30 Mass. 502 A2d 35. Colo. Miles v.-Blair v.3 § 1. 103 S. 473.W. Ky. 967. 564 N.D.. certification denied 604 A2d 598. selection.S.2d 849.7 The grand jury serves a dual function.Ed. Mo. 1515.W.Y.C!.C!.-People v. App. N. 250 U. 7.--State v. Sells Engineering. rather than a trial. 168 S.. Juries. U.Ed.-U. 39 S. 616. 162 F. Criminal Law and c. Club Caravan.S.-People v.2d 784. 967.C.-People v.S..-Conway v.S. 324. and to safeguard citizens against arbitrary. 3. U.. and the liability of others for interference with grand juries.J. 63 L.. the organization. Hayes. 561.).--State v. 113 L. 797 P. 343.6 The grand jury holds a high place as an instrument of justice.S.2d 648. summoning. People v..

-Carr v. 337. One of its primary functions One of primary functions of grand jury is to act as shield against arbitrary prosecution. Iowa-Maley v. 3133.-People v.S.-Skipper v.Ct. 136 S.S. 164 S.-State v.. 252. 77 L. 530. Schumacher. 32. 827. Md.2d 183. 92 IIl. 187 So.-Adams v. U. illinois. 39. 1636.2d 1000. 100 Fla. Ind. 815. Md. 727.C. 376-Lake v. 113 So. 221 Iowa 732.-U.-State v. CurrY.-U.S.-U. Oklahoma Bar Ass'n. RI.-State v. 88 AL.-State v.Y. N. v. 94 Fla. 459 U.App. State.Ed.Y. 463 U. 94 Fla. Bramlett.2d 389.N. U.S. v. 507. 873.E.S.R 1095. 198 C. 164 S. 121 Misc.Ct. 8 Alaska 117.C. 788 F. Second. 355. Schumacher. 929. 17.J. 100 Fla.. S. 815..Ct.R 483. Mass. Herbert.).2d 265. 404. 630."323. Donohue. Inc. 39.Ed. appeal after ouct. 147.E. II.S. N. appeal dismissed and certiorari denied 57 S.Ct. 529 N.Ed.S. sworn.2d 1250. rehearing denied 97 S.Va. upp. 761 P.2d 283. it .-Commonwealth v.Ed.N. Hylton. 1269. and it is not a trial body. 624 P'2d 1049.. 166 S. rial.S. 53 L. 196 A 288. Investigate possible offenses Colo.C.S. Colo. Rubio.Y.er.-Commonwealth v. 33 NXS. District Court of Woodbury County. 373.S.N. 17 N. D.2d 616. State. 112.C.Ed.Ed. 03 S. 108 illApp3d 143. Wis. 630.2d 1255.E. 477 N. 246 Mass. appeal dismissed and ce~ari denied 57 S.2d 183. 299 U.Ct. 468 N. 375. 53 L.S. 442 N. Lawler. 18.Md.Ct. Bramlett. 559 F. Bramlett. App. District Court of Woodbury County.C.. D. 103 S. 615 P. 33 N. Twofold purposes Purposes of a grand jury proceeding are twofold: it seeks to determine if a crime has been committed and who committed that crime.C. OkI. 266 N. 4. 12.Ed.-People v.W.-U. certiorari denied Aiello v. S. Driscoll. Calbud.. 130.S.Y. 173 Md. Iowa-Maley v. 1120..-State v. N. 45 F.S. 29 AL. 267 N. 645 rican system of justice criminal conduct. protects citizens against unfounded· prosecutions.S. Check against prosecutor and judge Among functions of grand jury is to provide check against overzea" lous or mistaken prosecutor or overconditioned or biasedresponse of a judge. 14.S.S. N.-Wood v. 433 N.s First. 199 Colo. State. 331 . . 853.C. U.-People v.R 568. 93 L. Western Union Telegraph Co. 435-Coblentz v. 90 L. 463 U.16 informing. v.Y. Massachusetts.S.S.2d 38.Y.. U. 892. 166 A 45. 187. Fla.Y. 75 L.2d 375. 323. Thomas. 427 NE. 299 U.ion.Y.2d 475. ill. should be formally charged 10 and required to stand trial. v.-U.B.S.E. 418. 65. State.S.age.Super.-Beckham v. 873. 370 U. Georgia. 727 F. N.S..B. 916. v. 266 N. 28 Ala:App.Ct.-Hitzelberger v. 435. Alaska-Chief v.App. 433 U. Rickard. S.2d 1103. State.Ed. 164 Md.2d 833. 166 S. 118 AL. 56 illDec.2d 61. CA7(IIl. crimes com0 present all e and manner ned a "grand nth powers of ~ grand jury nt of justice? .2d 84.. 17 Misc.). 205 AD. General criminal investigation (1) The grand jury is an investigating body. selected and before a comneled. Blair. 164 S.2d 840. 196 A 288.14 The grand jury is a primary security to the innocent against hasty.2d 645. 124 Fla.-People v. D.Y. 88 L.D.2d 250. 8 A2d 611. 558. 574 F.S.Dec.E. 100 Fla. 255.S.2d 265.2d 412.2d 972. N.Ed. Maestas. v. 1190..S.2d 121.176 Ga.Dec.. 124 Fla. 479 U. 323. 193 N. 243 P.C.W.C.Y. Qaiborne.. 373-Reed v. . State.Y. D. 933.S. it use to believe le. and protector is not rules for grand jury and legal authorities .S.E. 200 N. appeal after remand 934 F. 15.J. 394 Mass. 466.R 886. 1364.2d 569. Ciambrone. 17 Misc.2d 971. 45 F.Ct. 153 Misc. Ala.S. 165 Ariz.S. 1204. 106 S. 423. 3133. 81 L. 678 P. 53 L. U.W. State. 103 S. 32. 827. certiorari denied 107 S. 137 Pa.Supp.75 U.Supp.Y.Supp. 438 N.2d 188. 158. 579 N.2d 550. RI. 518.2d 541.-State v.S.-Pbillips v. U. State. 2641. 873. 384. 113 So.S.Ed. v. 169 So. 765 F. Atlantic Commission Co.-People v. 38A C.-Ward Baking Co. certiorari denied 106 S. 166 S.C.-People v. 474 U. 164. 11.-U. 456 A2d 746. N. to indictment of perso~s d citizens against arblsations. Inc.2d 743. v. 10. 426 N. U. 16.45 F. Sells Engineering. 181 U.S.. Perez. S. Mass.S.Ct. Graham.2d 250 and Mitchell v. certification Iisc.. malicious. Alaska-Preston v.C. Haldeman. certiorari ~d. v. . McLeod.2d 550. 603. affirmed on rehearing 131 So.l1 and files charges 12 and causes a prosecution 13 if there is such probable cause.S. 19.9 so that he Principal purpose U. 601 F. 718 P.W. 164 S. Rodgers.E.S. 58. 254..S. 933. 373. ill.2d 238.-Skipper v. 173 Md. 187. 336 S. McNary.Y. 81 L. review Conn. 221 Wis. 606 P.105 AL.199. Atlantic Commission Co. 140 N. Caldwell. 187. 129 So.Y. 873.2d 182. Cal.E.-peaple v.19 Thus. 65 IIl. 8 L.. v.S. 865.-Commonwealth v. 125 Ariz.S. Investigatory and accusatory function N. 49 N. 63 ill.Supp. 86 ill. Fla. U. 97 S. State.-State v. 82 S.C. 14t'100 Fla.C. and stands between accused and accuser to' determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. 187. 723. 229.2d 594. 373-Reed v. Atlantic Commission Co. O'Brien. Blair. v. Ga. 402 N.-Tweedy v.-U.2d 786.2d 784.AN. '667. U.S.S.2d 1140. Cal.. CA9(Nev. 129 So. Hubbs. U.S. D.17 and accusing IS body.Ed.Y. affirmed on rehearing 131 So. CACaI. • Application of Rodriguez. 116 RI. 4. 58. 139 Misc.Y.c. 376-Lake v. 221 Iowa 732.C.S.S.2d 845. Crowder. 143. ill.-People v. C. 384. 248.2d 31.C.2d 256. (2) The proceedings before a grand jury constitute the only general crinlinal investigation known to the law. U. 214 Ind.B. 169 So. Pa. 507. Bramlett.2d 274. 2992.-U. 97 S.2d P .-U.C.-People v. v. certiorari denied EhrIichman v. and oppressive prose- GRAND JURIES §2 o inquire with and to present l and accusato- cution. 166 S.-People v.S. 431 U. 2641.2d 240. 431 U.C.E.-State v. Alaska-U.2d 694. State. State. Div. 323.C. certiorari denied Herbert v.Ct. 13. 360 A2d 857.Ct. Ga.2d 436. 46.-People v.8A C. Romano.Ct. Foster. 919. N. .D.-Hitzelberger v. 749.2d 849.S.105 Misc.1s A grand jury is an inquisitorial.

Y. Commonwealth. 100 L. 197-State v. 64 S.-State ex reI. Ocanas.S. Romero. 100 Fla. v. 394 Mass.21 or a trier of fact.. 64 Haw.28 and are part of the investigatory process rather than the prosecution. Nordquist. State.Ed. Cal. 444.S.Ed. certiorari denied 101 S. 1383. 280 Md.S. 112 L.M. 147. 26.Ed. Massachusetts. 601.Ed. 248. 449 U..S. 1603.2d 256.S. 221 m. v.Ct. 638 P.U. District Court of First Judicial Dist. grand juries do not even accuse. D.S.. U. Direct Sales Co. Va.E. Boffa.E. his right in that respect should be rigorously protected.Ed.Ct.S. 477 N.2d 489.Ed.. 69 L. 452 U.S. 373.. Ohio. Special grand jnry Sole function of special grand jury is to gather evidence and synthesize its findings into report which may be presented to regular grand jury. State. Rodriguez. 88 L. as Circuit Justice): Falamante -v.App.S. Moore. D. 764. 55 L. 111 S. 727.Ct. v. 100 Fla.Y.Ct. 124 Fla. 109 N.-U.Supp. certiorari denied Aiello v. 452 A2d 935. 2316.-Lake v.S. 33 Md. Wyo. Mass.W. 88 L. 49 N. Fills.Y.E. 412.S. 309 N.S. lowa-State v. Shober.C. 917. 759. 309 N.S. rehearing denied 76 S.C.S. 29. 359. D.-State v. N. 76 S.S. 746 P. State. 70. Mont. 499. 81 L. 474 U. 808.-U. App. 292. McLeod. 299 U. 56 L. Paulsen. 637 F.-Antone v. 808. certiorari denied Aiello v.Ed. U. 38 L. 486 N. 503. Civella. 406.2d 320-U.D. v. 513 F. 23. 383 S. 333 U. CAN. 791.Ct.Ct.-Bracy v.E. U. 114 So.Y. Attorney General. Johnson. C. Rodrigues.Ed. 106 N. CATex. Kudisch on Behalf of Vargas v. 338.the ultimate fact flnder. Calandra. v. Fla.25 and not whether a conviction is warranted. 856. 618 F.24 and whether an accusation is warranted.Ct.2d 784.. 25.10 Va.2d 109.-In re Investigation of Grand Juror into Bethel Police Dept. Mo. certiorari denied 101 S. Mich. 601.Y.2d 1140. certiorari denied 790 P.Va. 31 Constitutional rights applicable at trial are inapplicable or not fully applicable to grand jury proceedings. 435 A2d 701.2d 561. Cal.. 382 So.S.. as distinct from indicting. 66 L.M .2d 693. Sommers. 474.C. reheanng denied 101 S.-People v. 63 S. 1057.2d 141.E.2d 360.. 68. 477 N. 40 F.Supp. F1a.M. 382 So.2d 99.2d 439. Md.2d 238. 21. 489 F.-State v. 280 Md. 393 S.S.M. Justice Rebnquist. Massachusetts. certiorari denied 101 S. 426 N.S. 384. 790 P. 394 Mass.Ct. 56 L.S.Ed. 503 N. 919.Ed. 751.2d 101.2d 1104.J. 560 P. Ariz. 129 So.. U. 472 N. 98 S. Burney. State.. Overbeck. 498 U.2d 309. McLeod.2d 844. U. v. 24.. 217 Ala. 498. 722. U.Ct. 376. Maynard. 449 U. People v.2d 256.Ct. U. 682.451 U. affirmed on rehearing 131 So. 629 P.S. certiorari denied Lancaster v.2d 697-People v. 482 N. 248.S. v.-State v. appeal dismissed and certiorari denied 57 S. 984. 27. 24.N.. 169 So. U.. 922.2d 795. 66 O. but only inquire and report.ACaI. Fla.S. 28. certiorari denied Ex parte State ex reI.2d 389.S.Ed. 692.E. Protect limited rights Since an accused has no right with respect to grand jury proceedings except that grand jury be duly impaneled and conducted according to law. affirmed 374 A2d 1144. Conn.Y. 1233..Ed. v.C.2d 1032. 539..-Bartram v.-Bracy v. 181 W.2d 109.App.Ct. 374 A2d 1144.Ed. 268. 913.-State ex reI.22 and does not try or convict.2d 353.2d 972.. 386 N.2d 972.S.C. 187-U. Hall v.29 The grand jury is unfettered by technical rules 30 such as those which apply at trial. 351 U. U.Ct.S. 393.2d 1111.-People v.Y. New York..App.Y.Supp. 319 U.. 511 N.. 172 Mont. Collins v. 373.-Vihko v. 55 L. 229 Mo.S. Schumacher. 727. R. 620 F. Conn.2d 645.Va. App. 581 N.S. 84 S. W.S.-Antone v. Stepney.Ed.2d 512. Kamin. 435 U.2d 141.2d 1067.. U.S. 601. Pinson v.Ed. 66 L.S. Md.-People v.Ct. 435 U. 30. 904. 1077. 63 N. 955 F. 92 L.Ct. 397.W..Ct.S. m.Ct.S. 613..Ct. 87 L.Ct.S. 136.S. Hyder. 100 L. 332 . Lancaster. 32.-State v. 287.S. Va.S. v. certiorari denied 101 S. S.Ct. 286 N.Ct. 435 U. N. Alaska-Coleman v. D. 66 L. 94 S.. 106 S. Enterprises. 350 U. 1171. 98 S. 257. U.794. 63 Haw. 452 A2d 935.2d 489. 196.2d 523. 151 Ariz.32 it does not detennine guilt or innocence. Minn.2d 559. certiorari denied 101 S. State.Supp. N.Supp.-Hennigan v.M. 913.D. 188 Conn. 919. Inc.O..S.2d 592. 1603. 1546.Ct. 223.26 Investigating. Conn. 3110. CAFla.-Bartram v.M. 109 N. 616.. 725 P. 402 N. 750 P.Y. Atlantic Commission Co. 827.W.Ed.2d 57 (per Mr.S. 22. Grand jury proceedings are ex parte rather than adversarial.Ed. Ala. Hawaii-State v. 616. 287. 632. Brackman v.App..2d 972. Fla.Ed.-Skipper v. 628 F.Ct. 106 S. 449 U. U. 764.2d 686. 1057.2d 40. m.2d 1122-U.Ed.Ct. 662. Kahlbaun.S. 68 L.2d 413. U..2d 1205.§2 GRAND JURIES 38A C. 320 U.S. 632.2d 512.S. 94 L.2d 20. 452 A2d 935.Matter of Grand Jury Sandoval County.2d 1045.2d 57 (per Mr.S. 877. 188 Conn.S. In and For Lewis and Gark County. State. N. 1171. as Circuit Justice).3d 254.Ed.J.E. 961.S. 87 Misc. 1301.2d 799.D.2d 988.-U. N. v. U.2d 1205. 777 F. 1301. Justice Rebnquist.2d 229-U. 507.-In re Investigation of Grand Juror into Bethel Police Dept.Supp.S.27 20. Mass. Pinjoli. 88 L. N.Y..E.S.-State v.2d 419.Ct. 488. 25.Y.-Costello v.-People v..S. 181 Conn. 449 U. 69 N. 127 Misc. 1440.C.-State ex reI.N. 107 S. 88 L. State.. D. Conn. rehearing denied 101 S.20 and is not . 297-State of New Jersey ex reI. rehearing denied 64 S.-Commonwealth v.Ed.S. Prosecntorial ann A grand jury is not a judicial arm but a prosecutorial arm.2d 724. 115.2d 659. v.2d 582. 320 U.C.-Commonwealth v. v.. 68 S.2d 841.W.S. 965..S. rehearing denied -633 F. 965. 438 N. 31. 414 U. 58.App.Y. Inc. ~orari denied 101 S..2d 990. 488 and U. on remand In re Grand Jury 87-3 Subpoena Duces Tecum. rehearing denied 98 S.N..2d 157. 364 A2d 1119.S.Del. State.23 and merely determines whether there is probable cause for a charge.Ed.S. Watson. 25.-Gore v. N.-In re Oliver. 114 So. 39.-In re Investigation of Grand Juror into Bethel Police Dept. Calbud. 66 L. 732 F. 553 P. N.480 U.2d 840.22 Ala.Ed. 45 F. 188 Conn. rehearing denied 98 S. U. Inc. 3 Dist. 66 L. 666 F..Dec. Juarez. CAMo.Pa.449 U.2d 464.Y. Nordquist. 66 L.S. 435 U. 449 U. Leverage Funding Systems.S.Ed.. 163 m. Brewster.-State ex reI.W. v.

47 However.S.J. ied 101 S. L Conn. 229.Cr.Y.C.S. 112 L.-Coll!Dlonwealth v. 332 Pa. App. CA1(Puerto Rico). 16. Burney. Commonwealth v.-In re Williams. 15 C. 658 F.2d 1209.S. 116 Tex.2d 20. 287. Alaska-Nicholson v. 333 '·--it. 6 OId.-In re National Window Glass Workers..J. proceeding from. '. reward. 33 However. certiorari denied Ex So. .C.W. 35 and according to some authorities it is regarded as a judicial body or tribunal. 229 Mo.-Greenberg v.Ct.Ct. D.38 even though it may result in a civil contempt citation. 41.S.2d 609. 474 U.. Tex. 886. 84 S. 754 F.-Ex parte Kennedy.S.E. 166 A 45. 382. 41. 33.C.S. N.2d 659. S. State. 2 A2d 298.S. 844. U.App. 69 N. 287.Ct. hearing denied 64 S.2d 863.ri denied 101 S. o grand jury proceedings . Ohio.S.S. 613. a grand jury is never an independent body. 268. favor.-Coleman v.2d 1067. Mo.-Coblentz v. 248. State. 68. 221 49. Hall v. Relation to Other Bodies and Officers a. Hubbs. tty. 33. 171 Tenn.-Stanley v.122-U. 667. 794.-Schwartz v.C.. .-In re Williams.S. 286 N.2d 319. 42. mmers. the grand jury is an independent body or arm of the court in its investigations and work in the sense that it is free from restraint or coercion from any source. 511 New York. 2d 523. 4 L. . v. 3 L. conducted according to sly protected. CAOId.41 A potential accused has no right to have his case considered by a particular grand jury. 540.S.Supp. 362 U.S.393.S. 137 Pa.Supp.. ·U.2d 989. 33 S. ~219. 100 H U. State. affection. 50 Some authorities state that a grand jury is a sepa- .. Dept. 36. W.S.C.U 632. certiorari Freedom from influence or coercion (1) On being impaneled. 88 AL. 814 F.Y. 8 A2d 611. 750 P.Ct. . 44.S. 976.Ct.W. Racine County v. .IIII• • !~. a grand jury does not become an entirely independent body.S. .App. 79 S. Criminal Law§ 702.Pa. 47. 78 Wis.49 A grand jury is clothed with great independence in many areas. v. County Court of Racine County. 229. Iowa-State v.. 43. 610. In re Grand Jury Investigation of Hugle.2d 443. 58 P. 286 N. 35. 759. Pa. 121 P. Hall v.Ohio.. 320 Judicial rather than legislative Wis. 60 S. Johnson. 24..S. GRAND JURIES § 3 In General While a grand jury is generally regarded as a part of. 38A C. 80 S. 197-State v.W. Old. Burney. 252.2d 819.2d 292. 359 U.2d 157. N. of Justice.W. U.S. 19 P. N.37 A grand jury proceeding is a criminal proceeding. 64 S.. 358.43 Presumption of regularity.Ct.-Levine v.Ed. 130. U. Iowa-State v.W. Cal. 594. 323.2d 429..). 34 a proceeding before it constitutes a judicial inquiry. 40.2d 1318.Cr. 904. 136 S.S. lal rights applifully applicable oVa.2d 843. as discussed infra § 78. 1 Ohio Law Abs. rehearing denied 80 S. 172 Mont.38A C.nied 101 S.IIIIIIIIIIIIIIIIII[lIIIII. 406. 359.« and a grand jury is presumed to have acted in accordance with its sworn duty.363 U.45 § 3.2d d Jury 87-3 Subpoena Ira. affirmed 963 F. 472 N.. Town of Caledonia. 309 U.App.E. State.W.i". 858.2d 1739Cobbledick v.S. 229 Mo..J . According to some authorities. 37. U. 25.2d 157. 48. Library References Grand Jury <PI. D.s.-U. 163 ill.2d 713. 359 U.Ed. W. 759.36 Sometimes it is described as a governmental agency. 498.Super. 94 S.. 3 L.Ct.42 and is not automatically prejudiced when a court impanels a new grand jury instead of recalling a discharged one. D. 4 L. or without. 137 Pa.oPaulsen.-In re Grand Jury Proceedings. I.46 whether it is engaged in the exercise of its ordinary functions and powers in considering formal indictments laid before it by the district attorney. D. 129 CA 713. 873. 8 A2d 611.Ct.M.2d567.Pa.Ct. t of First Judicial Dist. Ex parte Port.Ed.2d 772.2d567. 84 L. Md. 107 S.-Baird v. 766 F. 100 L. 394 Mass. C.J. 489 F. 5 CA2d 469-hwin v. U. rehearing denied 79 S. 1268.. }-U.2d .N. 632. or in the performance of the special and occasional duty of investigating matters given it in charge by the COurt. 419.R. 217 Ala.Pa. 722. the court. 84 S.-Brown v.2d 799.D. 558.Y. 106 S. Pa. 766 F. 539. a. U. 449 ~ Haw.2d 193.Ct.Super. State. certiorari d 840.S. D. Wbether grand jury can investigate offense not called to its attention by court see infra § 79.-In re Grand Jury Proceedings.A2d I-Ex parte Peart.Ed.2d 334. 358.. 1. 50. 759. Olmstead.-State ex reI.. 3 F.C. .39 It has been said that grand juries are concerned with facts. 7 F. . Tenn. v. U.Wash. 783. Murphy.Ct.S. CrApp. 297-State of New '.2d 782.Ed. CaI. or hope thereof.-Shenker v.Supp. U..9(CaI.W.Dec. it is to some extent independent of the court. 90 N. 118 P. 104 S. U. 337. 43 P. The same matters may be considered by more than one grand jury..-State ex reI. The grand jury is to some extent under the supervision of the court. (2) It must act free from influence. Crowder. although after it is summoned. Brewster.2d 582. U. 193 N. .App. 19 C.D.S. Hubbs.40 Multiple grand juries. Grand jury proceedings are granted a presumption of regularity. Misc.Ed.Ct. Relation to prosecuting officer 1l6. 45. A grand jury is generally not regarded as a judicial body or tribunal.rte rather than vestigatory proThe grand jury such as those. denied 101 S. 568 P. fear.C. Mo. N.S. U.Supp. affirmed 963 F.Ed. 727.2d 464. 229 Mo. Ocanas. 287 F.S.2d 61. U. In re Grand Jury 79-01. 1038. Harr. 38. its functions are of a judicial nature. 164 Md.-State v. Existence of presumption in criminal proceeding see C..A. 46. the court to which it is attached.U 1605. . 350 U. 34. App. ill. 449 2d 972. 494 F. In general b. 39. Paulsen.2d 756. 118.W. Ex parte Bruns.-State ex reI.Ga. not statutes.2d 659. 539. 254 N. Superior Court for City and County of San Francisco. 674 S.48 it is very generally conceded that after it is duly organized the larger part of its legitimate functions is to be performed by it as a separate and independent body acting apart from the court.Ct.M.. 656 P..S. Overbeck.2d 317.

Y. 71.Ed. or that it may 53 or must 54 act independently of the court.S. 549 F. 104 S.Y.C.. U.2d 172. N. Inc.R.. D. 825. 75 L.E. tal ti(] gr gr: 70.J. Ind. 54 L. Iowa-Maley v.Y. Strand.App.2d 360. Pa. Sheridan. McClure. 359 U.2d 756. 674 S. Hawaii-Matter of Moe. N. Provenzano.S.2d 334.W. D.-Levine v. 434 U. 72. 480 N. rehearing denied 79 S. 844.-Bowling v. Wake County Com'rs.W. 426 A2d 1041.2d 210. 527. U.N.-U. as stated supra this section. In re Terranova.2d 800. Ky.Y.R.Y.S. 73. 9. 41. 3 L.-People v.2d 502. 561.S. Arm of court system Alaska--O'Leary v.Y.S.J.§3 GRAND JURIES 38A C.2d 84.AAriz. 4 Ohio St. rehearing denied 80 S. 1976.2d 995. 55. Conzo. U.S. 7 F.AConn. 4 O.-People v.Y. 539. 671 F. Part of court system U. Arm of judiciary U. Ariz. 266 N. although.-Ex parte Peart. Pisanti. Aviles.Y. U.-Adams v.Supp. 873. 194. 79. D. 847. U.2d 836.-U. Tenn. 187 A 498.W. 332 Pa. 76. 377.W. Allen.S. 74 N.S.C.-Barnes v.Ga. App.. N. 560 P.S. 1605.R.· Necessary adjunct A grand jury is a necessary adjunct of all courts charged with the enforcement of the criminal law.2d 1028. 406. 56.S.-In re Grand Jury of Wabasha County. D.. 732 F. 858.-In re Grand Jury Investigation of Cuisinarts..2d 39.2d 154. 80 S. 205 AD. 359 U.-U. U. Superior Court. 68. 58 P.--Spector v.Ct.Y.. 1095. 43 P. 2 A2d 298..S.. Tex.C. 7 F.W.-In re Grand Jurors Ass'n.2d 538.2d 303... N. 1135. 363 U.S.2d 550---People v. v. 64.... 27 F.66 appendage. Wake County Com'rs. 461. 332 Pa. Hubbs. Iowa-Maley v. Mo. 489 F.C. Pa.Ed.68 or adjunct 69 of the rate. v.S.2d 1306. 78. 1228.S.-U. affirmed 588 N. 575. 382. Mo. D. 815. 617 P.Ed. 202--People v.2d 1739.S. within its field. 870. 22 N.Y.Y. N. Olmstead.App. 19 P. 15 CA2d I-Irwin v. U.Y. certiorari denied Connecticut v.J.Y. 610.S.W.--Shenker v. 199 N. 62.S. N. 74 N.59 c a a e p d 51.Wash. 6( Inv~ Agent of state A grand jury is an agent of the sovereign state. 81.Y.-Ex parte Bruns.-In re Grand Jury 79-m. 613. 460 U. Part of criminal judicial process Minn.67 agency.Md.2d 659. it is an independent and self-acting body 56 and.. 181 N. 1038. It has been held that grand jurors are not judicial officers.-Ex parte Port.2d 850.362 U. 229.2d 756. 202.--State ex reI.Y. 79 S.C. 103.-Brown v. Separate tribunal Tex.62 There is no serious legal objection. Inc.C. 665 F. 69. lli. Tex. 4 Dept.Y. Udziela.--Shenker v. Mitrovich.S.S. 244 N. U.W.W. v. Olmstead. 179 Misc. U. Harr. 524. 48. District Court of Woodbury County. 3 L. 194.Y. 759. State of New York. certiorari denied 98 S. 837.2d 756.S. 391 N.Ct.2d 841.S.S.E.S.S. v. 116 S. 457 U.Ed.C. CAFla. 816 P.2d 820. Burney.57 A grand jury is not and should not be captive to any of the three branches of government. D.W. 7 F.Supp. 5 CA2d 469. 137 Pa.Ct.W. v. C.2d 83. disclosure ordered 605 F.2d 575.2d 989. State. 617.-Lewis v. it is a part or adjunct of the court. certiorari denied 102 S. 1228. MO.-Corpus Christi. v. Bronx County.--State v. 57. 74.Supp.. D. 257.2d 1222. DiFabio. 38 N. 65. pe of ly th. In re Swearingen Aviation Corp.2d 1. N. 382-Petition of McNair. CAlli.-Application of Texas Co. each panel of grand jurors is a distinct legal entity. N.E.-Euresti v.S. People v. 177 N. 4 L. Inc. N. 73 L. Monroe.--State v. Harr. 170 AD. 67. 266 N. v.W. Olmstead. Cr..-Lewis v. 187 S. Cirillo.S.S.2d 253. App. to the operation of two grand juries in the county at the same time. 21! 82. 4 L. 301 lli.-People v.-Washington v. 249 AD.Wash.. 366 A2d 457.Ed. U. 486 F. 52. 58.S.Y.B. 79 N. 54. 976.C. 221 Iowa 732.Y. 114 Ariz.Ed. Third Judicial Dist.S. 251.. 2 A2d 298. 2964. State.S. 214 Ind. operates wholly independently of the court. D.2d 182-Dodge v. 17 N.2d 609.2d 1318. Murphy. Cal.App. 66. McClure.2d 220. Shoop v. 171 Tenn. 100 Misc. People v.2d 819. 23 N. 134 Tex. SO. 666 S. 89 Misc. CaI.2d 1353..E. Commonwealth v. Tenn Part of court machinery A grand jury is part of the federal court machinery. Valdez. U. State.2d 772.Supp.. Inc.2d 39. 1068. Ohio--State ex reI. 309 Minn.65 it is an arm. Hilltop Private Nursing Home.--State ex reI. 444--People v.129 CA 713. 25 N. Charged by Court January 19. 118 AL.S.Y. Cuisinarts. 31 S.51 independent 52 body. 63. a body constituting an arm of the court. 148. 221 Iowa 732. U. District Court of Woodbury County. 125 Misc. 229 Mo. Jackson.. Supreme Court.S. 495 F. Wurdeman. 62 Haw. 334 .2d 24. 308.-U. 55 or that. 77.S. 291 N. with one Justice concurring and one Justice concurring in part).2d 778. 419 N.lli.C. . 8 A2d 611.B.2d 292.2d 259. 325 Mo.Wash. 63 A grand jury is a constituent part or branch of a court 64 having general criminal jurisdiction.2d 843. Sinnette. Lashly v.-Marston's.B.S.Cr. Mo. Cal.61 Insofar as other grand juries or jurors are concerned..C..C.. Hall v.Super. D. 260. 61.Ct.--State v.S.-U. 769 S.2d 163 (per Matthews. Hyder. 59.2d 743. 276 N.2d 945. 31 S. 440 F.S. C.Super.Ed.C. 580 N.so but more frequently they are regarded as officers of the COurt. Chanen. Chief Justice. 281 N. 53.E. 325 Mo. 324 Pa.Wis. according to some authorities. 603.W.2d 125. 448 N.S.S. 60. 1373. distinct.. 2 n. U.2d 80. 84 S. N..58 and belongs to neither the executive nor the judicial branch. affirmed 12 N. v.Ct. 566 N. nJ~ a 75. 106 AL.C.--Stanley v.Supp..Ct.2d 408. 349 lli. 815.Ct. 103 S. 1520.

Crowder. 43 P. v. 168 S.W. 187 A. Allen.Ed. 4 Ohio St.S.-In re Report of Grand Jury of Baltimore City. N.Rptr. Pa.83 The prosecutor has a limited function in his dealings with the grand jury. 41. 260. but is not the court. v Md. 89 Misc.-People v.. 700 F.Cr. U.S.L. or an adjunct of his office. 7 F. § 4. j 221 Iowa 732. p.Y..W. Inc..2d 756. 62.W.2d 303.Y.Y. 41. N. Cuisinarts. 71.S.2d 1.85 However. U.C. U. 732 F. District Court of Woodbury County.38A C.2d 756.sinarts. 152 Md. Ariz. 564.Ed.--State v.S. 626.-State v. 3 L. CAFla. Investigating government Grand jury's function of investigating and reporting on local government is not inherently part of judicial system.).2d 754. 7 F.W.-Marston's.Ed. v.W. of the prosecutor. Aviles.-Brown v. Olmstead. 610. State. D.Super. disc1o1228.613. 1 Ohio Law Abs.Y. Olmstead. Library References Grand Jury e=>l.76 or appendage77 of the prosecuting officer.AConn. 266 N. 561. 816 P. 14 P. 147 Cal. 324 Pa. 54 Okl.2d 778.Wash. 769 S. C. Tenn. Pabian. rehearing denied 79 S. 359 U.Supp.2d 240.-Petition of McNair.R.P. U. v. 359 U. D.4 L. D. 419 N. 539.Supp. 62. 193 N.-U. 81. 22 N.C. review denied. Relation to Prosecuting Officer The grand jury is not an agency of the prosecuting officer. Hyder.2d 841.-In re National Wmdow Glass Workers.-Conway v. Origin and History 362 u. 219. 359 U. 616.N. N.. but not under the control.-Gillett-Harris-Duranceau & Associates.Fed. 266 N.W. 97 Mass. 86.C. 498. 766. 858.E. 815. 266 N. 171 Tenn. 7 F. 48. Misc.C. Provenzano. Strand.S.. 214 . 476 U.C. 4 L. CAFla. Minn. 976. 73. Mass. 74.E. Qninn. Qninn.Ed. on remand 657 F. Inc. U.S.S. 3 Ohio Law Abs.S.2d 1739. affirmed in part. 104 S. 14 P.--StanIey v.2d 1216.S. courts charged with the l. 281 N. App. 177 Misc.84 The grand jury performs its investigative function under the direction. 104 S.s. Cal. 114 Ariz. Inc. Md. Okl. 1373. 406. ~ Mo.2d 360. D. 873. 486 F.S.2d 334. 219. v.. 73 However. 287 F. v. b. 391 N. In re Grand Jury Proceediogs.Y. Okl.S.S.90 it is said that its origin is lost in obscurity. U. 1 Ohio Law Abs.Ct. v.A. U. dbury County.S. 137 A 370.2d 445.C. the relation between a public prosecuting officer and the grand jury to whom he transmits his bills of indictment is not to be determined by any rule of universal application. the operation of the same time..-Conway v. 480 N. 171 Tenn. a body constituting I Misc. 168 S.S.. 251. 560 P.2d 502..J. 1373.78 It can79 and mustSO act independently of the prosecuting officer. and cannot function at the uncontrolled will of such officer or his assistant. Tenn.2d 82-Petition of McNair. it has also been held that a grand jury is not an agency of the COurt. Cosby. Cal.2d 710. 90. MO.S.Supp.2d 550--People v. 498.524.. 3 L. 67. Application of Mullen.257. At the time of the settlement of this country the grand jury no longer retained its early function of trying offenders as well as accusing them. 79. 3 L.-Blake v.82 Although the prosecutor may guide the grand jury in the exercise of its functions.W.S.2d 502. v. 125 Misc. U. 406. 976. 91. State. Research Note Whether grand jury can investigate offense not submitted by prosecutor is treated infra § 79. t v. State.J.2d 240.Ed. 89.-U. 406.2d 357.S. v.Ct. Bannon. 616.2d 843. 137 A 370.-Spector v.2d 540.Ed. 734. 100 Misc. Inc. 287 F. Richards. 187 A. App.. 324 Pa.-Blake v. 82.S.Y.65 it is r adjunct 69 of the tigation. 76.S.2d 843.-StanIeyv.Ohio. 1948. Ohio--State v.2d 819. 221 Iowa 732.81 or become an instrument of the prosecution..Y.2d 575.. 77. Mo. 106 A.2d 609.S. U. . 9.2d 550.63 crt or branch of a llrisdiction. Pa. 103 1.E. v.-StanIey v.-Petition of McNair. 71 and it may be empowered to discharge the legal functions imposed on it only by virtue of the authority which it derives as a body of men sworn and impaneled in open court in the mode prescribed by law.S. State. 337.2d s.. D. I.S. 'l. 5 CA2d 469. 84.Cr. state. 136 S.S.-U.Wash.-U.Ga.-In re National Window Glass Workers. N. Olmstead.2d 1533. 464 N. 85.W. 70 It has no existence aside from the court which calls it into existence and on which it is attending. 83. 229.251.74 GRAND JURIES §4 Ors are not judithey are regard- r jurors are con- ors is a distinct s legal objection. 601 F.S. Kemple. Tenn. App.Y.C.-U. N. Monroe. 152 Md. U. 815..87 it goes back many centuries 88 to the early history of England. 102. 335 . N. 37.S. 106 AL. 38A C. 130.S. the grand jury system is !icial Dist.W. 72.2d 259.Ohio.S.S. D.2d 756.91 At any rate. 60 AL.R. Iowa-Maley v.N.2d 445. 88. D. Iowa-Maley v. 104 S. 419. 3 L.2d 819. DiBernardo. 775 F. 440 F.Y.2d J..-In re Report of Grand Jury of Baltimore City.Y. 54 Okl. 31 N.-People v. 48. 78.-People v.86 The presence of the prosecuting officer in the grand jury room and his participation in the proceedings is discussed infra § 102.2d 1470. 616.Wash. certiorari denied 106 S. The grand jury system is of ancient common·law origin. 419. 90 L. 79 S.2d 819.W.-Ex parte Peart.75 arm..Ed. U. 25 Ohio N. court.2d 820. 704 F. Pa. District Court of Woodbury County. 1228. A grand jury is not an agency. 75.72 It is powerless to perform its investigative function without the court's aid. vacated in part 880 F. f.S. State. U.S. . the grand jury alone determines the course of an inves- The institution of the grand jury is of very ancient origin.S. 83 CA3d 214. Cirillo.· 500.Puerto Rico.Y.-U.-U.89 Although attempts have been made to trace the institution back to its first existence.W.2d 163 :tice concurring and one 70. 87. 1105.2d 800.Supp.R. lHaw. v.C. CAll (Fla.-Commonwealth v. Weible. I. C. 80. 171 Tenn.Ct.

the state is bound by the Fourteenth Amendment requirements of due process and equal protection. Cal. In and For County of Douglas. 96.8 It is judicially noted that some states have practically abolished the grand jury. If a state chooses to use grand juries. L.-Blake v.2d 240. 787.S. 54 Okl. Gibson v.6 The legislature may enact a statute providing for grand juries even in the absence of a constitutional requirement of grand juries.-State v. In a state which has adopted the common law. 815. 14 P. 616. 789 P. 208. v: Olmstead. Olmstead. 7. 832. State. 336 . Okl. 285 N. Sanabria.6 C.J. Jenison. Wash. Library References Grand Jury e->1. habeas corpus dismissed in part.2d 240. 94. D.96 It originated when there raged a conflict between the rights of the subject and the power of the crown. 2.94 The grand jury was.2d 510. in federal courts.Supp. 50-In re Report of Grand Jury of Baltimore City.3d 316. the grand jury is a creature of statute.Cr. through constitutional provisions. Wyrick.§4 GRAND JURIES 38A C. 435-Gamble v. and well-nigh useless Constitutional and Statutory Provisions in General In federal prosecutions. 9. 14 P.J. .3 In many states.S. 1019 and C.iJilLU. 1304. State. 333 m. 7 F. 142. 1. 54 Okl. State.99 § 5.S.S. R.-Blake v. Fla. District Court of Woodbury County.2d 513.Supp. 95 but at the time of the settlement of this country it was an informing and accusing tribunal only. 57 P. 62: 10. U. 97. TII. 8. 93. Superior Court in and for Los Angeles County. Ferrill v. constitutional or statutory provisions require that certain crimes be prosecuted on indictment or presentment by a grand jury. Iowa-State v.-Application of Jordan. 474 A2d 760. Iowa-Maley v.-Blake v. 122 R.. State. 197. 221 Iowa 732. 192 Conn. 668.S.J. Indictments and Informations § 6. 62.2d 230.-Girardeau v. 815.W.. 671.E. District Court of Woodbury County.J.App. State. Graydon. District Court of Woodbury County. the Fifth Amendment has adopted the grandjury as it existed at common law.S.S.C. 173 Md.-U.C. certiorari denied 100 S.-Fitts v.S. 266 N.. Nev. Gibson.2d 230. 199. ex reI.Cl 1859.2d 230.7 Where a grand jury system is derived from common law. under modern conditions. 7 F. 6 C. 57 P. 861. 815. 405 A2d 3. 126.Va. ments imposed in federal prosecutions by the Fifth Amendment provision concerning grand juries are inapplicable in state prosecutions..2d 339. Superior Court in and for Los Angeles County.2d 510.2d 240..29 240. Cal. require- a product of the common law. Constitutional Law §§ 1016. 14 P. but of triers as well. Iowa-Maley v. 54 Okl.Supp.l The Federal Constitution does not require the use of grand juries in state court prosecutions. Md-Hitzelberger v. Fla. granted in part U.Mo. 152 Md. 196 A 288. U.I. State. In a state which has adopted the common law.92 the civil law making no provision for a body like the grand jury.-Fitts v. Iowa~Maley v.S.Supp. 429.-Blake v. 64 L. District Court of Woodbury County. 62. Court of State of Nev. a body not only of accusers. 173. The Fifth Amendment has adopted the grand jury as it existed at common law.liiLi 111111.-State v.-U. State. U. 221 Iowa 732. 98.2d 277.2d 756. 11.W.. 97 it served in England as a barrier between the king and the rights of the subject 98 and secured the subject against oppression from unfounded prosecutions of the crown. 92. D. 221 Iowa 732.-People ex reI. 773 F. superfluous. 5. 815. State. Indictments and Informations §§ 6. 64 m. 221 Iowa 732. 266 N. 5 Where not constitutionally required. 106 Nev.S. 85 Fla.Cr. 99.W.. 6.C. m. 439 F.W. a constitutional provision relating to the grand jury is deemed to refer to the common·law grand jury. 163 A 859.2d 248.-Boothe v. D.W. Williams.. Iowa-Maley v. certain crimes can be prosecuted only on a presentment or indictment of a grand jury. generally speaking.2d 756.S.2 However.I0 but providing that a grand jury may be called where prosecuting officers will not act. 266 N. 95 So. habeas corpus denied 793 F. 4. 93 it came to this country as a part of the common law. 2.-Gier v.S. the elimination of a constitutional provision for grand juries does not invalidate such system. 445 U. Okl. in some states the creation of grand juries is not constitutionally required. 164 Md. D.S.-People v.2d 1245. 14 P.W.Cr. McGinnis.Dee. as discussed in C.ll The view is asserted that.2d 756.C. at first. all prosecutions to be begun and carried out without the intervention of a grand jury. Superior Court in and for Los Angeles County. petition for review dismissed 408 So. 440 N. U. as discussed in C. as considered in C. Cal. Olmstead. 6 C. v. 403 So. a constitutional provision relating to the grand jury is deemed to refer to the common-law grand jury of historic origin. The Fifth Amendment to the United States Constitution provides that. 164 N. 9.2d 510.4 However.2d 1093.-U. 109 m. Conn. Okl.-Fitts v.E.J. D.S. Ninth Judicial Dist. Indictments and Informations § 6. App.I. 921. 137 A 370. U. a grand jury is an antiquated. 452 F.-Cotton v.C. Okl.S. 57 P. 54 Okl. 62. 3.Cr. 266 N.Ed.Wasb. v. 7 F.9 as by allowing. 95.Wash.

Commonwealth.Cr. 57 21.3 atutory proviprosecuted on rand jury. requires by the Fifth lnd juries are However. 199. 26. 274 S.W. 13. Conn. 29 mes. 17.-In re Mills. 54 Okl. Burton.3.S. 660 F. 298. Ferrill v. 'ari denied 100 S. the implementation becomes a judicial administrative responsibility. piece of legal machinery. In and . 471 N. Va. 522 A2d 753.12 there being seldom any reason for invoking the cumbersome proceeding before it where prosecuting officers are willing to act. 187 A 498. State. 14.Cr. 14 Statutes governing the grand jury process should be strictly construed and compliance therewith meticulously observed.671. 27.2s A grand jury is presumed to be legally constituted.S.E. 87 Va. 409 So. State.-Blake v..2d 240.. Angeles County. 192 So.S.-Jasnowski v.W.. 202 Conn. ll-People ex reI. C. 31 Va. 22. 14 P. 28. it having implied authority when it is invested with jurisdiction of criminal offenses which can be prosecuted only on indictment or presentment of a grand jury. 31 Va.E. 10 S. 23. 544. Fla. 54 Okl. ::Onn. 382 ill. 832. 62. 54l. Burton.-Miller v. 3. 164 N. 429. Iowa-State v.S. Commonwealth v. which can be prosecuted only on indictment or presentment of a grand jury. 73.E. Okl. 13 S. 25 and the same is true of courts whose criminal jurisdiction is so limited as not to require the instrumentality of a grand jury in order to discharge their duties fully. i4 ill. 107. Va. Platt. 659.2d 78. 424. 135 U. Me. Grizzel. Ltes have pracs by allowing. v.-Petition of McNair. 13 In some states matters pertaining to the grand jury are purely statutory and not controlled by the common law. as occasion might require. 16.S. and how a grand jury may be summoned . 589. 137. 15. 2. 286 N. 107 Neb. 73. Graydon.t6 Once a grand jury pro.2d 157. 87 Va. . 62: . 762. . 186 N.-State v. Christian. a grand jury cannot be impaneled by a court of the United States by virtue simply of its organization as a judicial tribunal.26 A special judge who has failed to take oath as prescribed by the constitution is without authority to organize and impanel a grand jury. Reichle v.W. 11 prosecutions t the interven~ that a grand tlg officers will .. under what circumstances.A.2d 1039. 98 AD. 14 P. People. 3 Dept. the object being to have a grand jury in attendance at the commencement of the term.hat.Ct.Y. 19. 183.Cr. Pa. De Armas v. 20. 34 L.R. 150 S. Library References Grand Jury ~1. Edwards. 46 N. 106 AL. 257. >tate of Nev. 62 . had power to have a grand jury summoned during the term. Commonwealth v. 18. the i The legislalr grand juries ttl requirement lury system is mination of a mes does not Authority of Courts to Convene Grand Juries A court may have either express or implied constitutional or statutory authority to convene a grand jury.-Robinson v. 15 The legislature may apply procedural reforms retroactively so as to invalidate preexisting grand juries. Tex. La.-Curtis v. Okl. GRAND JURIES § 6 In the United States. possess the power of summoning and impaneling grand juries apart from any express statutory authorization. 197 Mich.-Matter of June 1982 Grand Jury of Supreme Court of Rensselaer County.2d 240.-People v..J. 504.Ct. Mich. 38A C. 333 ill. 24. 928. F. 62. 183 ill..Dec. 163 N. 62.. 56 N.27 A court is held to be without power to set a grand jury investigation in motion unless the court has reasonable cause to believe that the investigation will disclose some criminal misconduct which is within its jurisdiction to punish. 100 Tex. the mendment real protection.23 However.20 courts invested with jurisdiction of criminal offenses. 602. Commonwealth. granted in part U.J. 1373.-State ex reI. Doherty. 4 Leigh 645.E. 787. Neb. 46 Colo. 208.21 the power being inferred as necessary and incidental to the discharge of the duty enjoined on the court in connection with the prosecution of offenses.E. State. This was issued anterior to any action of the court. 4 Leigh 645.-Pinn v.2d 1043. 417. 645. however.lS The court. 48. 60 Me.2d 892.-Curtis v. 13 S. ill.Cr. as I Informations I the common g to the grand non-law grand n some states :onstitutionally 'f required. 645. 423.Y. 337 Ii c-lllllltlll:III1111III • •III.19 12.S. 60.Supp. U. Blasko. 141 ~ex.-State v. 263. N.2d 378. State. Panlsen. .-Williams v. State. U. ill.17 § 6. .W. tabeas corpus denied 25.-Blake v. Colo.24 A court having no jurisdiction of criminal offenses has no jurisdiction to summon a grand jury.2d 284.m.-U.Ed.S.W. while effect is accorded constitutional and statutory provisions relating to the convening of grand juries by COurts. 109 . 103 P. Tex. People. Ark. 324 Pa. Connolly. .S. 1304. 589.-State ex reI.38A C. generally a grand jury is ~ll-nigh useless At common law the process for summoning a grand jury was a precept either in the name of the king or of two or more justices of the peace directed to the sheriff. 193 La.-Enloe v. 20. 910. cess is established by the legislature.. 22 Federal courts possess the inherent power to convene grand juries when they are necessary to satisfy the Fifth Amendment. 29. petition for review Legislative power The constitution imposes no restraint on power of legislature to determine when.

Ferrill v. 466. Va. Clark County.-Litton v. the court shall order one or more grand juries to be summoned at such time as the public interest requires. Finding of necessity Formal finding of necessity is not necessary to empanel grand jury pursuant to statute.34 or a motion to set aside an indictment is sustained after the regular grand jury has been discharged.W. Multicounty grand jury Purpose of statute authorizing supreme court to convene multicounty. 32..W. 300 1lI. 16 Ark. Von Kutzleben. State. from a specified cause or any other cause.-Board of Ed. 39.E. 40. it is deemed necessary for the administration of public justice. 508 A2d 568. Bradfield. Ark. 498.2d 1344. (2) Though motion and supporting affidavit requesting empaneling of special grand jury need not set forth in detail evidence on which Commonwealth's attorney may rely.-Burgess v. Cal.37 So aside from statute the rule is generally laid down that it is competent for a court to summon and impanel a special grand jury whenever. there has been a failure to procure a jury in the manner prescribed by law. county may empanel as many grand juries as are necessary to deal with volume of criminal activity. Iowa-State v. in some situations. Ark. Hall v.2d l.-Sowders v. Additional grand jury (1) Under proper couditions a circuit judge may empanel an additional grand jury to function concurrently with a regularly empaneled grand jury. 681.20. State.Proc. 93 Nev. 409.39 Statutes sometimes expressly confer such authority. 11-People ex reI. 229 Mo. Mo.Super. after the discharge of the regular jury.Special or Emergency Grand Juries a. unless permitted by statute. 101 Va. 568 P. 136 Iowa 89. 10. 832. Ky. 133 N. 833. . Fed. in addition.-Straughan v.-Board of Ed. 633. a grand jury may be procured by order of court where. 44 S. 163 Ark.W. 38. Manahan. 260 S.CA. which grants authority to district court to call grand jury in its discretion if court believes one is "necessary".2d 659.-Lera v.. 746 P. Sheriff. 37. 38A C. unable to adequately function. apparent that the regular grand jury is. 163 Ark. there must be at least an allegation of conduct which would constitute reasonable grounds to believe that a grand jury investigation will disclose criminal activity within court's jurisdiction to punish. 352 Pa.J.E.-State ex reI. State. In General A special grand jury may be called by the court under a valid and applicable statute conferring authority to do so or.32 30.§ 6 GRAND JURIES Federal rules of criminal procedure. Nev. W.E. Wyo. 759. 187. appeal deuied 520 A2d 1384.-Hennigan v. Commonwealth. Graydon. 382 1lI. 1lI. Court has discretion Idaho-Parsons v. People.E. the question of the necessity of a special grand jury after the discharge of the regular jury is left to the discretion of the COurt. Idaho State Tax Com'n. 260 S. Dept.-Sutton v. Commonwealth. 551 S.2d 659. Ky. Ark. to discharge it at any time during the term. 716 P.S. and impanel another.W. 46 N. 201. 18 U. Burney.Rules Cr. apart from statutory authorization. Nicholson. unless restricted by statute. In general b. 484.W. App. (3) Under statute providing that grand jury may be selected as often as public interest may require. Federal special grand jury a. 923. 2 Colo. 41.W. 654. A special grand jury may be called in pursuance of authority conferred by a valid and applicable statute.-Sutton v. 84 S. 148 Ala. Pa. Ala. 33. 37. 84 S. Under statutes so providing. 13. 30 § 7. 197 Ky. Nicholson. Rule 6(a)(l). 31 and apart from any express statutory provision it has been held that this power may be exercised by a court invested by the constitution with original jurisdiction of criminal cases. 409. 248 S.38 If the regular grand jury has been illegally impaneled at the beginning of the term it is competent for the court. of Jefferson County v. 551 S. 36. 35.41 the disquaIification of certain members of a grand jury does not authorize the discharge of the entire grand jury and the summoning and impaneling of another.35 or where the regular grand jury has been discharged during the term. 333 1lI.W. 110 Idaho 572. 34.-People v.S. Burney. investigating grand juries is to enhance ability of commonwealth to inquire into criminal activity or public corruption reaching into several counties. A grand jury may be procured by order of court where there has been a failure to procure a jury in the manner prescribed by law. 562. 42 So. 31. Grizzel.33 such as a statute authorizing the ordering or summoning of a special grand jury whenever the judge is of opinion that justice requires it. Library References Grand Jury e->1. 759. Bush. 532.-State ex reI. 834. district court need not take evidence or seek advice conceruing propriety of calling grand jury. 562. 513 Pa. 229 Mo.App.2d 581.40 However. 429-People v.-Commonwealth v.2d 360.-People v. for reasons beyond its control.2d 78.2d l. 32 C. Ky. State.. State. the papers must make it 338 .App. Colo. of Jefferson County v.36 Under some statutes. 113 N.-Mackey v. 164 N. Mo. Hall v. although the withdrawal of the disquaIified jurors would reduce Under the Federal Rules of Criminal Procedure. of Revenue and Taxation. 68.

52. 655.Ann. 25 So. Smith. Ala. ted as often nany grand lal activity. Smith. adversary hearing and determine whether allegations and statements are adequate in terms of Investigating Grand Jury Act and were made in good faith. Furco.ute the oont for I grand regular stration ally imcompeLtute. Wheeler. 249 Pa.A § 3331(a). 31. a special grand jury may be impaneled even though a regular grand jury is in existence and is performing its duties and functions. the Deputy Attorney General. 46.A § 3332(b). 80.J. Pa.2d 418. and qlressly permitcertain rize the he sumugh the I reduce Each federal district court which is located in a judicial district containing more than four million inhabitants or in which the Attorney General. 47. in certain circ~stances. 374. it is essential to its authority to issue a special venire that the condition contemplated by the statute exist. where appropriate. certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district shall order a special grand jury to be summoned at least once in each period of 18 months unless another special grand jury is then serving. 126 P. 164 N. 375 A2d 756. 339 . 1082. 133 29 Mo.48 42. rehearing denied 129 P. 951. 308.E.-In re Opinion to the Governor. 466. Iowa-State v. and upon satisfaction of criteria established by the supreme court.46 but in a state wherein there is no constitutional restraint on the power of the legislature to determine at what time and under what circumstances a grand jury may be summoned.-Commonwealth v. 415 A2d 17. (2) Information to sustain application to empanel grand jury or to sustain submission notice should support.52 Request by prosecuting officer. W. 806. which could include tips. 834 P. 834 P. the Associate Attorney General or.490 Pa. 47 GRAND JURIES § 7 Request by citizens. the district court may order an additional special grand jury for the district to be impaneled.42 The disqualified jurors should be dismissed and their places supplied.-Eureka County Bank Habeas Corpus Cases. Nev. La. Barger. 18 U.44 Where the authority of a court to order a special venire is restricted to specified contingencies. 49. 415 A2d 17. 41.45 Constitutional provisions in some states are deemed to prevent the legislature from authorizing the impaneling of a special or additional grand jury to function at the same time and in the same county with a regular grand jury attending on the same COurt.M. ~. . 490 Pa. multicounlonwealth to into several .M.-People ex reI.35 or ~harged e ques- "Y after h.-Bailey v.R. 35 Nev. 4 A2d 487. to "Ill. and. :29 Mo. 45. 415 A2d 17. rather than surmise. :ople ex reI. 415 A2d 17. Pa.W. 121 AL.C.Super. its control. 80. president judge merely evaluates facial sufficiency of application to meet "statement" requirements of Act.M. Graydon.2d 418. 48. Ferrill v.App.-In re Investigating Grand Jury of Philadelphia County. 51 La.Super.M. 38A C. Pa. 129 Iowa 100. 51. 114 N. 55 So.J.490 Pa 31. 249 Pa.49 and must make an initial determination of the legality of the proposed inquisition.S. 59. evidence or factual representations of district attorney through in camera or. Under some constitutional or statutory provisions. N. 50.-In re Investigating Grand Jury of Philadelphia County. 832.50 'Suance )licable rdering ver the :14 or a ~d after ~d. R. Pa. supervising judge has discretion to evaluate and may accept factual affidavit. 375 A2d 756. 172 Ala. the panel below the number required by law.-State v. 498. (2) If challenge is made to statements or allegations of application to empanel grand jury or of submission notice.Super.-In re Investigating Grand Jury of Philadelphia County. even if it should be determined by court that no crime was in fact committed.2d 1.any designated Assistant Attorney General. 41. 114 N. 51 Whenever the district court determines that the volume of business of the special grand jury exceeds the capacity of the grand jury to discharge its obligations. 418. 18 U. (3) Special investigating grand jury may be convened to investigate criminal activity ouly upon reasonable cause to believe that an investigation will disclose some criminal misconduct within jurisdiction of court to punish. 490 Pa. A statute requiring. 31. 43. in effect. 200. 31.-Cook v.S. When justified (1) Power to convene a special investigating grand jury is never exercised except for urgent necessity or where the public interest would suffer from delay incident to the ordinary forms of law. 62 R. 333 ill.S.S.C. Evaluation of request (1) Under Investigating Grand Jury Act. the empanelment of an investigating grand jury on the application of a prosecuting officer has been upheld.App. and the legislature has exercised its power by authorizing an order for a special venire at any time the judge is of opinion that public justice requires it. 44. 601. State. to the . such conclusion would not affect the validity of the grand jury but would warrant only dismissal of any informations. Barger.-In re Investigating Grand Jury of Philadelphia County. 429. reasonable conclusion of possibility of criminal activity. inter alia. Federal Special Grand Jury Some federal district courts must order a special grand jury to be summoned at least once in each period of 18 months. but good faith should not be found unless statements and allegations were made as result of information. 35 Nev. grand juries may be empaneled on representations of district attorney which satisfy the Act. but where such reasonable cause exists. Pa.I. a court must convene a grand jury or otherwise submit a matter to a grand jury upon the petition of a certain nUmber of persons. 59. 105 N. Pa.-Cook v. lIa89.J. N. !33. rumors or evidence. III.-Commonwealth v.43 especially where a statute expressly so provides. Bush.I.

Pa. Petrea..S.Law 11. 59.Ct. Library References Grand Jury e. Pa.2d 1136.Cr. Cal. 410.-U. U. 62. Brautigan.2d 270 and Kilpatrick v. on rehearing 717 F.E. 53 L. 541. Stale. 823.2d 421.S.W.S..62 § 10. McFarland. 1062.. 261 U. Ky.-Commonwealth v.S.C.67 or of securing addjtional. Roark.3. 463 U. 173. 208.S. 438.7. 14 C. U. 103 N.J. :U. App. Heller.Y.W. 77 LEd.S.. App.W.-Synanon Church v.Ed. 834. certiorari denied Hurt v. It is improper to use grand jury proceedings merely to elicit evidence for use in a civil case or to prepare a pending indictment for trial. 101.C. Sells Engineering.2d 270. 431 U. Exclusively criminal Grand jury investigation is not conducted in good faith unless it is used to conduct investigations that are in their inception exclusively criminal. 103 S. Alegria. 980 F.-U.66 or of preparing a pending indictment for trial.Ed.2d 1274. 68 However.AMich. CATenn.63 Government attorneys may not use a grand jury proceeding to gain advantages in a civil case which they are not entitled to. 705 P. 544 F.S. 53 L. 187. D. Doss. State.2d 227.S..Micb. Library References Grand Jury e. 26 S..-Roberts v. 969. Phillips.Supp.S.. 64 It is improper to use a grand jury for the primary purpose of strengthening the government's case on a pending indictment or as a substitute for discovery.C. 97 S. 85 NJ.Y. U. D. 545 F. 638 S. affirmed 90 A ']j1. N.S.1. 130. 537 A2d 1361.58 but other state courts take a view to the contrary. v. 472.-U. 60.J. 687 F.S.2d 242.D. two cases.2d 1320.. U.-State v.2d 1274. 65.2d 778.. Blair v. N. Lang. 95 Tex.C. 954.Ct. 61. U.-U. 418. v.§8 GRAND JURIES 38A C.-U. 3133.Supp.-In re Grand Jury Proceedings. 27 P. 63. 960.2d 575.Ed.-State v.N. 2675.Supp.S.S.. there appears to be some authority to the contrary. C. 2675. 194 Wis. 454.2d 830..2d 991. v. a court authorized to hold a special term has power to convene a grand jury for such term.W. Carabin. Woods.-Terrell v. State. 579 F. McDevitt. certiorari denied 97 S. 58.S. 310 ill..J.. v.Ct. CAl(Puerto Rico). 52 LEd. 689 F. 69. 139 S. Tex. CAWis. 517 Pa 390. Raphael.2d 1079. 340 . D. 66.D.App.D.Ct.S. Cr. 431 U. 430 U.57 Likewise. 91 C.Ct. Roark.Law 446-State v. 1652. the court is bound by any statutory limitation on its power to call a grand jury to serve at a special term. IlL-People v. 969.2d 61-U.S.2d 265. 147 Tenn. Wis.S. v.S. Research Note Improper purpose for subpoena is treated infra § 137. 355. Cal.-State v. State. Cal. In re Grand Jury Matter No. 69 C. 431 U. 139 Tex.Y. Commonwealth. 86--525-5. .56 § 9. Gibbons. affirmed 146 A 927. 1']j1.. Miller Brewing Co.App. There is no such thing as a de facto grand jury in a federal court.. 253 S. U.W.W.S. CAOkl.S.2d 361.S... 11 P. Jackson v. 67.Supp. 13.Ct. U.J. 68..S. v.-People v. 967. rehearing 563 F. 786 F. 142 N. A1aska-State v. 52 LEd. 5OD-Hickox v.Grand Juries for Special Terms Subject to statutory limitations. 248 S. Tex. 577 F.Supp. § 8.61 It has been held that the de facto officer doctrine applies to an improperly appointed grand juror. 104 N. 53 LEd:2d 279. Library References Grand Jury e..S. U. 97 S.1. 122 Misc.2d 416.S. 240.-People v.S. 705 P. A1aska-State v. affirmed 820 F.Law 731.S. Tenn.60 53. Use of grand jury proceedings merely to elicit evidence for use in a civil case is improper per se. 84 N.1. 55. 814 F. 472 N. Bolitho.. McKay. U.Law 246. U.Y.-Lennon v. 545-1n re Gannon.2d 743..69 Where no further in- U. some state courts assert that there is no such thing as a de facto grand jury. U. 114 Tex.. Tenn. 9 Dist.S. 430 U. ']j1.55 However. 136 A 164. E. 2689.2d 548..65 The government may not utilize a grand jury for the sole or primary purpose of gathering evidence for use in a pending trial.Cr. App.W. Inc. 323.. 1007.Ct. rehearing denied 97 S. 197 Ky. 859. 45 F.S. 217 N. 97 S. Tex. 57. 24-26.59 It has been held that the acts of a de facto grand jury are valid in the absence of fraud or prejudice. if any. 247 S. N. 607 F. 50 L. S. 97 S. Improper Purpose A court authorized to hold a special term has power to convene a grand jury for such term 53 under express statutory authority 54 or in the ab7 sence of a statutory limitation.W.C. affirmed U. 1652.-Howard v.2d 108.Cr.-Matter of Grand Jury Proceedings.J.. De Facto Grand Jury or Juror Authorities differ as to whether there can be a de facto grand jury. 87 A 123.S.. 54. 787.2d 361. v. v. postindictment evidence to be used at trial. 429 U. 879.-People v.2d 824.S. There cannot be a grand jury de facto when there is a grand jury de jure.-Ex parte Haymond.ill.-Sowders v.Y. Wescott. State. 704 S. 56. 92 N. 954. D. 64.

63 : a grand jury ivil case which ry for the pri- government's 1 substitute for . 577 F.2d 427..2d 198. CA. U.App. 689 F.-Commonwealth v.Supp... 908. 1019.S. Enterprises. 767 F.2d 1131. In and For Maricopa County. 687 F. D.3d 369.S. 407. D.Supp.Y. 396 So.S. 415 N. U. P. Blair v. State.2d 270.facto when Impartiality in General ..83 The fact that the grand jury considering a perjury indictment is the grand jury to which the allegedly perjurious statement was made does not mean that the jurors are unable to base their decisions on filler Brewing Co.2d 657.1(Puerto Rico).2d 541.2d 1301. 471 U. 665.Supp. 449 N. 459 F. 367.-State v. the fact that the government may derive an· incidental tactical benefit does not render the proceeding improper}2 The government may continue a grand jury investigation even when the evidence received may also relate to a pending indictment.e. La. U.Super.. 112 L..66 or of r trial.Ct. 464 U.S2d 1030. 150 Misc.C. Scott. 395.2d 323. 20.2d 70.2d 279. GRAND JURIES § 11 § 11. 52 L. 518 A2d 35.S. 60.2d 1038. Johnson. on rehearing 717 F.S. 502 F. reconsideration denied 434 N. Hussein.2d 1173. 879. N. 87 Misc. D.. v. and may not harass the press for purposes not of law enforcement but of disrupting a reporter's relationship with his news sources..e..Supp.Ed. 53 L. motion denied 432 N.J. writ denied 474 So.Ed.Y. E. v.e. grand jury must be both independent and informed. 398 N. 82. 390. 78 L. U.Ed.Y.2d 626. 2257. Ky.-Branzburg v.Y. 784 F. D. 292. 92 S.2d 296. Azzarelli Const. 386 N. 2646.S. 408 U. 71 Furthermore. certiorari denied L. Wagner.E.-State of New York v.S.S.Ill. Co..2d 85.2d 372.517 Pa. 408 U.. 33 L. 78 L. In re Hunter.Y.75 Grand juries may not select targets of investigation out of malice or an intent to harass.S.2d 137. v. dictments are contemplated. '71. v. reargument denied 434 N.Ed.Ct.-Averhart v.2d 894. U. 427 N. the proceeding is not improper merely because the government may derive an incidental benefit not related to such purpose. so The grand jury must remain free from suspicion and distrust and must always rest on a plane so high that no criticism can attach to it.2d 934. 476 U. People v. (Under Seal).A7(IIl. 238 N.2d 1320.Supp. v. 498 U. CAFla. 12 Mass. 503 F.2d 326.67 or of evidence to be ~ars to be some no further in- ~ A grand jury must be fair.Wis. Superior Court.Ed.74 The grand jury process may not be used by the prosecutor solely to conduct his own investigation.Ill.76 and may not be used by the prosecutor to harass witnesses.S. Gold. D. isc. 146.Ed.-State v.-U.2d 795.Wis. D.S.Y. affirmed U. Miss.S. 467 So. U.-U. CA.Ed. Disqualification of grand juror for interest. 1336--U.S. 470 N..E. 430 N. 1020.E.C.S.Colo. dissenting opinion United States v.S.62 Authorities differ as to whether there is a right to an unhiased grand jury. 15. State. 92 S. U. certiorari dismissed Doe v.Ct. on remand In re Grand Jury 87-3 Subpoena Duces Tecum. 70 Where there is a legitimate purpose behind a grand jury investigation. 79. 67 AD.2d 702.Y.-Mosley v. Phillips. 55 N.Ct. CAOkl.s1 Persons who are investigated by the grand jury have the right to be free of distrust. D. 955 F.S. 53 L.S. Hyder. lerely to elicit lroper per se. D. 447 N.. v.).2d 800. 2*.--Crimmins v.-In re U. 816.2d 43. Grand Jury Proceedings. 55 N. 341 . 454--U. 385 Mass. 1145. appeal dismissed 408 N. Va.2d 361. U.3d 410.2d 678. Simms. 470 F. review denied 440 N.S.. v.).Y.S.2d 1079.Supp. 86-525-5.2d 778.Ed. Ind. 81. 104 S.Supp.-In re BaJistrieri. :Wjro.Ed. 38A C.Mo. 700 F. 449 N.J.S.S.7S '78.RAth 761. 714 F. Gibbons. 78 L. certiorari denied 105 S.S.Supp.79 and must remain impartial and free from the appearance of being disinterested in fundamental constitutional principles.S. R.2d 267. 446 F.. Lawson.S.2d 841-U. Research Note 19B merely to elicit ending indictment Fair cross section requirement is discussed infra §§ 13-19. Independent and informed To render decision free from bias. U.2d 270 and 154. 4 Cir.S.-State v.2d 1015. 732 F. Lihrary References Grand Jury 0=>1.S.Supp. 137 Ariz.. State.77 Grand juries must operate within the limits of the First Amendment.Ed. impartial.Md. Lewis.2d 119.C. le . Ariz. 52 L.-Matter of Grand Jury Proceedings. 2051.2d 666..E.-Mosley v.S.S.. 90 L.. 1.S.Y. 448 A2d 253. v.Dec.2d 1081.S.Ct.2d 1015.S. .E.2d 361. Misik.Ct.N.2d 229.S2 However. CA5(La.App.-In re Layden.E.2d 354.Y.J.--H)pkins()n v.-U. 1101. nfra § 137..Pa. 26.2d 270. U.Y. a grand jury should not be used to prepare a witness for trial.E.S. Mass.Ct.38A C. 607 F. e. State. 72. ·73.2d 211U. 59.2d 435.Y. 55 N. or prejudice is considered infra § 27. certiorari denied 104 S. 55. CAVa.-People v. 33 LEd. 53. 12 AL. where a legitimate purpose for a grand jury investigation predominates. 83. Western Dist. certiorari denied 106 S. Hayes. D1. 71. 396 So.E.2d 882. v.. not utilize a ry purpose of ing trial. 39.s. In re Grand Jury Matter No. Miss.S.Ill. Conn. 520 F. U.fficer doctrine grand juror. 738 F. 569 A2d 894. 668 P. certiorari denied 104 S.S.e. bias.-U. Donaudy. N. 1030. 79 Ill. it has also been~ held that there is no right to an unbiased grand jury. U.S. of Louisiana. 814 M2. App. 50 N. Hill.Y.2d 246.. 464 U. 664 P.. Inc. and frustration toward the grand jury.S.2d 975.Ed. D.Ed. Miller Brewing Co. v.2d 347. v.2d 787.2d 787. v.73 where obtaining evidence relevant to the indictment is not the sole or dominant purpose. 665. affirmed 673 F.e. 562. 85 L. 2686.C. 722.Ct. 978. 53 L.2d 1136--U. Caldwell. Cid.J. 69. 120. 697. 34 Ill.S. 15S-U..2d 991.S. 111 S.-U. and unbiased.Ill. 1112. Burke. 201 Conn. suspicion.2d 47.-Brooks v. 1136. Law Firm of Zimmerman & Schwartz. 568 N.S.Ed.D. dismissal of habeas corpus affirmed 23 F. v. 80.

2d 498---Hernandez v. 508.-Casteneda v. MO. 74 S. Not best practice Although it would have been better practice not to have sought perjury and conspiracy to commit perjury indictments from same grand jury which heard alleged perjury.2d 212.2d 779.-State v.2d 1002.S..s. rehearing denied 66 S. Constitutional Law § 752. 254. Constitutional Law § 722.J. 590 P. there is authority to the contrary.Ed. 104 S. App..S.Y. 51 L.2d 498---Akins v.466 U.S. 326 U. App. Objections to indictment for irregularities in composition of grand jury are treated in C. U..S. 1276.90 Compensation of Jurors ·The right of a grand juror to compensation and the amount thereof is dependent on statutory provisions.-Casteneda v. 429 U.Ct.91 Such discrimination need not involve an absolute exclusion. 50 L. certification denied 604 A2d 601. 934.-U. no reversible error resulted.Ct. Mich. 240 N.S. Darby v.2d 733. 125 N.§ 11 GRAND JURIES Library References Grand Jury 0=>14.Ed.S. Purposeful discrimination against an identifiable group in the selection of grand juries may involve a violation of the constitutional guaranty of equal protection.. Tex. 220 Iowa 120. Tex.W. 595 F. 482.S. 139 Ariz.Ed. 46 N. Equal protection as affecting constitution of juries in general see c. 92.S. 17. 470.-People v. In General A General considerations b.Y. 593 A2d 266. FAIR CROSS SECTION Library References Grand Jury 0=>2)2.-Go\d v.Ed. COMPOSITION AND FORMATION A § 13..2d 1043.2d 325. N.. 60 N. U. Research Note Discrimination and fair cross section requirement as affecting selection of foreman are considered infra· § 55.Ed. 980.J. U. State of Texas. State. 51 L.88 § 12.Ed.S. 97 S. certiorari denied Carter v.C.-U. 90 L. N.v.Ed. 342 .. 1558.2d 498.. 88 L.S. 352.2d 541. 475. 1051.S.-State v. 89 L. App.S. II. 2155. Guzman. Alaska-Massey v. Lauder.Supp.S. 806.2d 598-Oisteneda v. 85.2d 1123.Y.-State v. Ariz. U. 97 S. 982. Watkins. 51 L.Ed.2d 783 and Cameron v.2d 981. U. Cal. v.S. 474 U.2d 1143. 51 L. 1677. Hillery. and a disproportionate impact is insufficient. 679 P. 556. 50 L. 1272. 98 L.. 82 Mich. 584 So. 109.J.App. 469 N. 951. U. 430 U. 429 U. 543 F.86 It has been held that a grand jury may consider indictment of a person even if it heard immunized testimony from such person.-Smallwood v.S. 97 S. Cage. State. 430 U.S.S..J.Ed. 87 However.89 A member of the grand jury is properly allowed extra compensation for his services as stenographer.-State v. 86. 771 P. 429 U. 956. 458.-People v. Polk County.Ed. Partida. 52 L. New York.2d 448. Partida.Y. 258 S.E. Tex. 667. 573 A2d 475. General Considerations Purposeful discrimination against an identifiable group in the selection of grand juries may involve a violation of the constitutional guaranty of equal protection. 325 U.E. 8.J. and may involve substantial underrepresentation of the groUp. 89.Ed.93 The existence of a constitutional violation does not depend upon whether accused is a member of the group discriminated 84. U. 97 S. certiorari denied 97 S. 88.S. Partida. 482.. Ga.Y. N.S.2d 916.-Franzi v.-Vasquez v. 347 U.Ct. Fair cross section in general c.Ct.Ct. 65 S. Iowa-Park v.J.J.Ed.85 at least where the two offenses could properly have been joined in a single indictment.2d 403.M. Vioieris. 97 S. 261 N.2d 491. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Guide following. 1272. Maiorana.J. State of Texas. 493.s. 86.84 A grand jury may consider an indictment even if it has heard evidence of accused's participation in other crimes. 435 N. 150 Ga. 88.Super.Ct.S.S. 38A C..Ct. Johnson.Y.S. 106 S. 79 AD. 539 S. 430 U. D. 457 N. 1272. Texas. 127 N. Tex.92 Purposeful discrimination is required.. Hinton. The right of a grand juror to compensation and the amount thereof is dependent on statutory provisions. 91. 87.2d 493.Ct. Dixon. N.S.Ct. 1066. Texas. Superior Court of Arizona In and For Pima County. Bates v.Ct. DISCRIMINATION.S..S. State. App.S. Jury Selection and Service Act in general a. 93.M. La. Booth. Indictments and Informations § 176. Miss. 327. 50 L. 796.AN.2d 767.. 866.Ct. 430 U. 663 P. certiorari denied Guzman v. 80 L.Ct.W. 617.J. Preface. Alaska-Bangs v. Equal protection as affecting grand juries in general see c. C.2d 589.N. U.2d 169.-Creamer v. 337 So. 90. State.2d 1692. 97 S.Ct. 92 N.2d 1013.S.Y.S. 398. Tex.-State v. 430 U. 482. U.. 223.Ed. 764. the evidence. 97 S.2d 376.W. N.

Ed. Dixon. Ala.J.J. State of Alabama. 31 L.Ed. 140 Tex. 820. 93 S.Ed.Supp.C. two cases.s.Ed.Ed. 1692.S. 463.Ed. 508 U.99 94.S.Ed. v. CA6(Tenn. 407 U.. 77. 452 U.2d 725. Kiff. 59 S. 73 S. 629. 76 S. State of Delaware.Ed. 164. State of Texas.Ed. Tex.S. 61 S.Ct. 103 U. 493.1074. conformed to 147 S.S. Musto. Tex. 354. Miss.Ct.. Alexander v.2d 807. 325 U.S. 946. D.N.Cr.2d 967 (per Mr. 930.Ed. dissenting opinion Daniels v. a practice as impermissible as systematic exclusion. 92 S. 297..2d 653. 350 U. Lawrence.Y.Ed.1 Where a state subjects a person to indictment by a grand jury that has been selected in an arbitrary and discrinrinatory: manner.-State v.2d 456.2d 1118. 1221.S. 622 F.Ed. 294 U. 97 L. where a grand jury is used. certiorari denied 113 S.2d 266. State of Louisiana. 38A C.-Peters v.C. 86. 437. U.S. t. Linahan.Ed.S.2d 902. 177 U.. Justice Marshall.Ct. [.. Louisiana. 946..S.S. Constitutional Law § 770.Ct.Ct. 83 L. State of Texas.S. on remand 491 F. 223.J.. 822.S. certiorari denied 101 S.2d 1017. 407 U. 763. 593 A.Ed. Tex. 320. N.J.Ct. 95 Nev.S. 65 S. Abell. 20 S.Ed..S.RFed. 332 U. 2 h.Ct.J.S.2d 431. 667. State.S. 68 A. 92 L. 565-Pierre v.-El Paso.2d 200. Henderson. Commonwealth. U.S. Baker. U. 33 L.S. 536. 657. 2163. denial of habeas corpus affirmed 983 F. 79 L. 97. Aimone. 61 S. there is a constitutional right to the selection of the grand jury from a fair cross section of the community. State of Louisiana. 86. Equal protection as affecting constitution of juries in general see c.Ct. Allen. 469 York. 94 L. with two justices concurring and three justices concurring in the judgment). 443. 834. Tex.C.2d 613.Ct.3 This right has been held to arise under the Sixth Amendment right to trial by an impartial jury/ made applicable to the states by the Four- 'ollowing Preface. Del. 306 U. the state violates the requirement of due process. Allen. 326 343 . 128.Ct..S. 276..2d 8. 715 F.W.S.E. 89 L.. 354.Ct.2d 188. 396 U. 474 u.-Tollett v.S.2d 822. State of Louisiana.S. La. 184. 164. App. 943.2d 1118.C. 757.Ct. rehearing denied 76 S. 83 L.W. 96. 85.S. 449 U. 100 L.Ct. CA. 430 U. Violates state statute U.--Cassell v.Ed. State of Georgia. 66 L. certiorari denied 103 S. 125 N. 98.Ed. 565Pierre v. 88 _. 354. 49. Tex. U. 536. 350 U. D.Ct. Jury Commission of Greene County. 316. there is a constitutional right to the selection of the grand jury from a fair cross section of the community.2d 761.). 625. 504 F. 70 S. 608 F.S. La. 3066. 491-Smith v.S. certiorari denied 101 S. 448 A. 397.2d 793. conformed to 147 S.2d 236..S. Mo. 370.J.2d 29.W.Ct. Tex. 518. 2. 104 S. 326 U. Tex.97 Accused is entitled to require that the state not deliberately and systematically deny to members of his race the right to participate as grand jurors in the administration of justice.S. 1602. Louisiana. 78. 4. Ga.2d 221. opinion conformed to 91 S.J. Manson. mandate conformed to 33 So. 59 S.Ct.S.2d 536-Eubanks v.Ed. 1183.Ed.2d 281.Ct. 1370-Akins v.-U. Ga.2d . 540 F.Ed.Ct. 3. La. 83. identifiable !lay involve a lty of equal I not involve e substantial Purposeful Iroportionate :>f a constituwhether acIiscrinrinated 1 Deli~rately selecting juror in same group as accused Sheriffs looking to match defendant with grand juror of same race as defendant was not evidence of innocent intent but itself constituted a conscious effort to establish panel based on racial factors. U.l8A C. 1 A.2d 422.Cr. State of Texas. U. it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. 44 L. 2163.2d 299.Ed. Justice Marshall.S. 100 L.2d 978--Ciudadanos Unidos De San Juan v. 475. 92 S.S..Ed. Manocchio.S. appeal dismissed. 1272.Ct. 970. 345 U. 124 L. 524 A. 918... 212 Ga.-Villafane v. 1221.S. 347 U. 74 L. Standing to assert violation see infra § 19. 536. 36 L.2d 1027.Ct. on remand 491 F.Ct.S.J.Supp. Wright. 85 L. 297. Tenn.. Hidalgo County Grand Jury Com'rs. 98 L. GRAND JURIE8 § 13 Even discrinrination designed to obtain a racial balance is improper.S.31 L. D. 570 S. State of Louisiana.S.Ed. certiorari denied 103 S.Ed. 24 L. 962 F. 459 U.Ct. Neal v.Ct. Constitutional Law § 722. 106 N.74 L. Kiff.2d 1185. 90 S. 757--Carter v. 68 S.2d 536-Pierre v. N. in violation of the Constitution and laws of the United States. 398. 783 S. State of Texas. 3054.-161-Hernandez v..Ed.2d 991-Reece v. 90 L. State of Texas.Ct.Ed. Criminal Law § 1718. rehearing denied 73 S. 687. 1276.S.94 Racial discrinrination in grand jury selection violates the equal protection guaranty. 311 U. Ala.. 76.S. 73 S. Allen. 827. 1127. 679 F. 346.Conn.-State v. 306 U.J.Ct.C.Ct.s. 2 L. certiorari denied 101 S.85 L.R2d 1286.Ct.J.S.Ct.W. 469. 123. 964. 1T.S.. 443. 92 S. 839. 339 U. 92 S.Ct. 84. iorari denied 97 leneral ~e C. v.Ct. 1276.459 U. State. 33 L. Conn.S. 78 S.-State v..S. La. Ramseur. Ky. 1272. 140 Tex.8. 1370 and Speller v. Ga.Ct. 2433.Ct. 345 U. U. with two justices concurring and three justices concurring in the jUdgment). 587.--Carter v.S. 339. 344 U.Ct. 1173. 128. 411 U. 121 L. La.-State v. 59 S.2d 469. 203 Miss. 67 L.2d 235-Brown v. 73 S.S. D. 265-Smith v. Fair Cross Section in General It has been held that..J . State of Mississippi.-Alexander v.S. 506 U.. 157-U.Ed.2d 403. 66 S. Jefferson v. 636 S.Ed. certiorari denied 103 S.Ed. La.2d 549.Supp.L..L... 74 S. 584.2d 770.S. Morgan. 69 L.Ct.S.. affirmed U. ~58. 905. App. 55 S.-State v. U. 839. 552 F. 757-Norris v. IS. 450 U. affirmed 639 F. 74 S..96 The principles that apply to the systematic exclusion of potential jurors on the ground of race are essentially the same in the case of grand juries as in the case of petit juries. 1479. 452 U. certiorari denied 101 S. Ga.-State v.S.S. Racial discrimination as constituting reversible error per se without showing of prejudice see c. 625. 351 So. 207 Conn. Equal protection as affecting constitution of petit juries see c. t.S.Ct. 423 A. La. 947.S.Ed. certiorari denied 113 S. CAMiss. 69 L. State of Texas. N.-Peters v. U.2d 493. 97 L. State of Mississippi. 97 L.S.Ed.Ed.2d.S.-Colvin v. 104 S.S.Me.-Williams v.95 Once a state chooses to provide grand juries.Ct. 99.Ed. 459 U. 405 U.Ct. 579.W.311 U. 26 L.8. 65 S. 344 U. U. 1272.. Tex. 254.S.-Obregon v..S. CATex. 258. certiorari denied Dentico v. 95. 866-Patton v. 405 U.98 Limitation of the number of persons of a particular race on a grand jury in approxinlate proportion to the number eligible for grand jury service violates the equal protection guaranty. 306 U. rehearing denied 66 S. 442. 356 U.2d 83.Ed. 74 L. 97 L.. 542 A. 804. 827.2d 1021. lensation and tatutory pro- :>erly allowed as stenogra- It has been held that.2d 967 (per Mr. 83 L.S. RI. 806. Nev. 282. 167. 430 U. 430 U. v. 493. 1.-Machetti v.-Adler v. against.Ct.. where a grand jury is used..Ed. 84.-Flores v. 594 P.Ct. U. affecting grand !.

Ed. U. affirmed 385 A2d 1258. U. Ga.Ct. 918.-U.Ind.2d 14. 469. 715 F.2d 541.. as discussed in C. Guzman.2d 83.Supp.s. 608 P. 10. State.2d 822.Y.2d 883-U.S.Y.Ed. 724. discussed in C. 250 Ga.§ 13 GRAND JURIES 38A C. it has also been held that the Sixth Amendment is inapplicable to grand juries.Fla.E. 951.S.2d 403. 468 U. 89 AD. 346.Ed.C.Super. 1009. 423 A2d 200.Ct. 253 Ga. 300 S. Aimone. Musto. certiorari denied 105 S. appeal after remand 323 S. 2155. v. 152 NJ.J.. Hanson. v. certiorari denied Dentico v. 14.-Devier v.2d 1261.6 and that the fair cross section right is therefore inapplicable to state grand juries.S.S. 414 N. 269.E. 466 U.Ct. 7.Ed.2d 984. 13. 6. 86..S. 1877. 8.Ed..-State v.N.Ed.2d 924. Ariz.J. 452 U.E. 1269-U. affirmed U.-Devier v. 69 Ohio St2d 136. Constitutional Law § 977.2d 150.2d 169.Ed.Ct.Md. 104 S. certiorari denied Dentico v. v.9(Idaho). Porro.2d 916. 300 S. 85 L.. 457 U.2d 1219.2d 490. 66 L. v. 158 N.S.Ct. 454 N.2d 403.2d 883 and 104 S. Statnte Ga. Musto. 451 F. 1217.A. 854. 3585.. App. in federal court there is a right to grand juries selected at random from a fair cross section of the community.-State v.Ed2d 706. 3054. 652. Castonguay. focus is not on discriminatory conduct but instead is on whether jury selection system is impartial and will yield microco~m of community which can fairly represent views of all persons within society. New York.Conn. 416.Minn. 82 L. 69 L. 715 F. 253 Ga.2d 422. 73 L.. D.S. Donohue.2d 883-Villafane v.S. U. 486.S. 715 F. D. McFerron. 3585..Supp. App.Y. Bastarache. 1877. U.Ed. 468 u. it is the policy of the United States that all litigants in federalcourl entitled to trial by jury shall have the right to grand juries selected at random from a fair cross section of the community in the district or been discriminatorily excluded or substantially underrepresented based on race or national origin. certiorari denied Dentico v.S.2d 883.. 78.C. D. certiorari denied Guzman v.7 It has also been held that such a right arises under the Fourteenth Amendment general requirement of due process. 146.S. Guzman..Y.-U. 449 U. Acosta.468 U. 80 L.2d 422. 1217.S. Community The term "community" is a term of art referring to total populace of division or district wherein court convenes and not to a particular city or municipality within division or district. 125 Ariz.2d 822. D.Ed. App. 62 AL.s. 82 L. Ga-Parks v.Ct. certiorari denied 101 S. 15.-People v. 104 S.-U. v. 346. teenth Amendment.Supp. Perez-Hernandez. affirmed 457 N. Ky. 1217. 468 U. State. Manson. 423 A2d 200.-State v. 472 F.E. 652.2d 1318. 469 N.2d 67. 9.-U. 218 Conn.Ct 3586.471 U.4th 833. 2155.J.Y.J.s. 452 U.. 1009.O. 930.Supp. 608 P.2d 1143. D.468 u. certiorari denied 101 S.S. 468 U.-Commonwealth v.2d 541. N.-U.S.S. 1047. Long.S. 259.S. 680 S. 15 c. Aimone.R. 5. 604.C. The test under the Sixth Amendment is the same as that under the Jury Selection and Service Act.Ed. 204 N.Ed.. Puente.Supp. 23 O. 439 U.S.E. Musto.S. 1109. 80 L. appeal after remand 323 S.S. analogous to the right of equal protection!2 It has been held that a violation does not require intent. C. State.S. 382 Mass. 69 L. 254 Ga.-Obregon v. v.2d 150..-Commonwealth v. 146. Juries § 124.9 Some statutes provide a fair cross section requirement. 604.S.Y. 344 .S. certiorari denied 102 S. 3586. 3066. D. 1217. 457 N.82 L.. App.S. affirmed U. U. (2) Standards under the fair cross section requirements for grand jury and the equal protection clause differs somewhat in that fair cross section distinctiveness encompasses the broader principle that jury should be drawn from a source fairly representative of the community. 10 The principles concerning the fair cross section requirement applicable to petit juries.S. 403. have been held to apply likewise to grand juries.S. it should be noted that the due process requirement is not implicated by a negligent act causing an unintended loss of liberty. U. Constitutional Law § 1067 and C.S. Aimone. 2910. 3586..N. 918.A.t3 or bad faith!4 However.-People v. 1217.-Jeffers v.194 Conn. 58 L.2d 883 and 104 S.S.Ct.S. 452 U.Supp. 69 L. Conn.J.C.Ed. U. v.Ed.S.S.2d 883 and 104 S.S. 672 F. D.2d 431.-State v.2d 770..2d 916 certiorari denied Guzman v. 499 A2d 264. 330 S.-State v. 951. 346.J.J.S. N. 471 U. Ariz. 771 F.82 L.2d 686.N.2d 883. 12. 104 S. 60 N.2d 1143. certiorari denied 101 S. 1338.2d 822. affirmed U.Ct. !!2 L.Ed. Acosta.Y.Ct. 1217. certiorari denied 105 S. 468 U.C.S.C.Ct.-Obregon v. 481 A2d 56.2d 987.Ed. Jury Selection and Service Act in General Under the Jury Selection and Service Act. Under the Jury Selection and Service Act.S.Ed. 1217. v.W. Mass.2d 83.S. 125 Ariz.S. 250 Ga. v. U.Supp.Ct 148.2d 169.C. N.Super.E.2d 852. Miller. U. 104 S. 468 U. 1217.Ct. 85 L. C.S.C. certiorari denied 101 S.S.Y. 574 F. 1049.C.S. 8 Even authorities who hold that such a right does not arise under the Sixth Amendment hold that such a right applies in federal prosecutions and arises under the Fifth Amendment right to an indictment by a grand jury. N..S. U. 469 N.Ct.2d 490.2d 883 and 104 S. Ohio-State v.Ct.Ct. 82 L. 431 N.S. 466 U. 540 F. and is applicable to state grand juries.S.Ed. U.S.2d 1380. affirmed 639 F.82 L.5 However.3d 178. appeal after remand 590 A2d 901.Ct. 504 F.J. lL D. certiorari denied 99 S. 104 S.Super. New York. 540 F.E. 60 N. 3586. affirmed 618 F.E.J. 377 A2d 950. D. DitJerence (1) In equal protection matters.ll The fair cross section right is not entirely 3585. U.Y. 82 L. 540 F.E. 3054. 3585. whereas equal protection focuses upon classes which have historically Purpose Purpose of fair cross section protection is to provide criminal defendant with grand juries which are microcosms of community. focus is on purposeful discrimination while in fair cross section cases. v.

S. v. Aimone. D. tal Law § 977.Ct. 4 S. inc. D. Gregory. 936. U. 416. 78. U.Ed.S. (2) Grand jury selection plan can only be considered a supplement to the plan and does not replace the Act and a defendant must show that the basic purposes of the Act have been subverted by failure to follow requirements of plan.S.S. 1171. 730 F. U. inquiry is whether there has been frustration of Act's underlying principle of exclusions . ntico v. Aimone.CA § 1867. 105 S. D. 429 F. U. 930.S.S. 662. certiorari denied 105 S. certiorari denied 101 S. 84 L. 104 S.Supp. GRAND JURIES § 13 juries. 551 F.-U. 72 L. on basis of objective criteria only. certiorari denied Northside Realty Associates. 792. Tarnowski. . CAl(Mass. v. 79 L. 27. a substantial violation generally will not be found' if number of errors is small. C.Ed. 3586. 28 U.. inc. certiorari denied 104 S. 1269-U..Mich. Caron.Ct.-U.S.2d 979.Ct. inned U. U. no substantial violation of Act will lie.2d 692. rehearing denied 716 F. U. Coleman. Miller..C..2d 1380. Caron.Conn.-U. v. U. is the same as the one under the Sixth Amendment.S. 977.S.S. on remand 555 F. Bearden. 1103.2d 456 and Browning-Ferris industries of Georgia. 102 S.Supp. 514 F.S.2d 321-U. Schmidt.ATex. affirmed 385 nied 99 S.Md.Ed.Ct. CA9(Idaho).Ct.S.Ed.-U.).2d 321.S.S.NJ.Ct.Supp.. rehearing denied 716 F.S. or economic status. v.S..dom from a fair the district or lderrepresented based I AD.Ed. Bearden.S. mt is the same :l Service Act. 595. v.S. certiorari denied Northside Realty Associates. U.Ct. 1602. v. Savides. U.S.S.-U. 936. D.S. U. exemptions..2d 883 and 104 S.S.469.2d 692.S.S.. U.Ed. 259. in absence of discriminatory potential or effect. 452 U. U. 84 L.Ct. 551 F.Fla.82 L. national origin. certiorari denied 105 S.S.S.2d 590. '. 28 U.. 1602.S.S.). CAGa.24 and a technical deviation is insufficient.Fla.25 In determining whether a violation is substantial. affirmed 722 F. v.S. sex.2d 590.S. 514 F.Supp. religion. certiorari denied Spurlock v. 715 F.S.Ed. 1208.S. and exclusions upon the basis of objective criteria only..-U. 1993. 105 S. v. 659 F. 104 S.S. 429 F. D.17 No citizen shall be excluded from service as a grand juror in the district courts of the United States on account. C. U. v.468 U. 20. 1993..C. 1225.Supp.-Villafane v. 79 L.S. 456 U. v.S. 469 U. 72 L.-U.. 102 S. Manson. appeal after )rari denied 105 S.2d 751-U.S. affirmed 639 F.2d 901. 28.S. 24. U. certiorari denied Spurlock v.. ~dom from a ~rvice Act. D. on remand 555 F.2d Violation of plan (1) When violation of a local plan for selection of grand jurors is alleged. U.Mich.S.C. Butts.16 and that all citizens shall have the opportunity to be considered for service on grand juries in the district courts of the United StateS. U.S.Ct. Donohue. certiorari denied 104 S. 456 U.S.C. 1225.. Savides.S..S. 705.S. 1269. 1993.2d 541.. 574 F. 1208.S. CATex. U. 930. excuses.Ed.Va.Ed. affirmed 639 ~ U.S. Aimone. 439 Violation of plan A substantial violation of district plan for grand jury selection is equally a substantial violation of the Jury Selection and Service Act. 936.Ct.27 Various violations have been held not substantial~ It has 'equire intent. 69 L.Supp. 1208.Ct.Al(Mass. 652. r..Ct. affirmed U. 21.S. CA.C. 514 F.. 1217. 465 U. Schmidt.CA § 1861. Lper. v. 346.Mich.S.Supp.2d 431.-U. D. 72 L.S. 3066. 662.Supp. and determination of disqualifications. v. certiorari denied 104 S. Misinterpretation or misapplication Mere misinterpretation or misapplication by jury clerk's office of objective criteria contemplated by Act does not violate objectivity principle.. v. 659 F. D.. 595. 665 F.-U. 1217. 1225-U.22 Relief will be provided where there is a substantial failure to comply with the provisions of the Act. 28 U. C.-U.C. 17. 468 U.Supp.S.2o The test under the fair cross section requirement of the Act. 1170.AAla.Ed.Ct. 1170. 456 U. v.Ed.S.CA § 1861.13 be noted that implicated by a loss of liberty.S. v.S.. v.Fla.C. U. 464 U.S. 429 F.2d 595.80 L. 22. rehearing denied 740 F. certiorari denied Dentico v.C. Coleman.S.Supp. D. 72 L. 78.2d 456 and Browning-Ferris industries of Georgia. 1993.. 102 S. 468 U.2d 852. 3585. 1041. Inc.S. 514 F.Ct. CATex. 456 U. v. D.S.2d 456. quantitative and qualitative analysis is undertaken: quantitatively.S. 464 U. it is t all litigants in Qnantitative and qualitative analysis in determining wh~ther wrongful exclusion of potential jurors results in substantial violation of Act.2dil22. 659 F. 102 S.Supp. 429 F. Ga. color. D.S.S.S. U. 80 L. v.S. appeal after Grand jury not nullity Selection of Grand Jury in substantial noncompliance with Act does not mean that grand jury was a "nullity" having no authority to do anything. 715 4 S. U. 80 L.Ct. U.Ed.2d 590.. 19. the Act extends the Sixth Amendment fair cross section requirement to federal grand 16.S. 1208. court looks to see if any of policies of statute governing grand jury selection were frustrated therefrom.. affirmed I 916 certiorari denied :.-U. U. 468 U. '.C.S.J.S.Ed.S.C. 792.C. CAGa. v. 84 L. ~ction.-U. v. v. 1225. 465 U.2d 739. U.Ct. 72 L. U. Prejudice unnecessary U.2d 1219. 936. 1217.2d 770.Ct.Supp.Ct.Ed. U. Butts. v.S.S. 1171. division wherein the court convenes. 711 F. 345 .705. 936. D. 724.. v. 82 L.S. v. C:A:Ala.-U. 730 F.Ct.2d 169. Butts.-U. 3585. 1103.Supp.C. 456 U.S.38A C. 72 ring to total populace of not to a particular city 18. inc.2d 456.Ct. 82 L.84 L. 469 U. Musto.Supp. Tarnowski.2d 521. 102 S.2d 883. 25.S.2d 321. v.1S The Act embodies two important general principles: random selection.2d 979. U. 787 F.S. 540 F. 771 F. certiorari denied 102 S..S. Brummitt. v.2d 751-U. 711 F.Ct.Ed.2d 14.. y shall have the . !Ii 1219. 28 U. v.2d 132U.Ed.2d 595.Fla. qualitatively. 456 U. 2244.Va.S. of race. }a. rehearing denied 740 F. certiorari denied Northside Realty Associates.951..S.C.19 Even if the Sixth Amendment is inapplicable to grand juries.2d 132.23 A violation must be substantial. 469 U. Gregory. 783.-U.21 A violation does not require intent. U.2d 901.Mich. U. 787 F.2d )Upp. v.CA § 1862. Otherwise technical violations Otherwise technical violations constitute "substantial failure to comply" when they affect random nature or objectivity of selection process.469 U.-U. certiorari denied 104 S. Bearden.12 38A C. v. 18.S. v.26 A violation is substantial only if it contravenes the principles of random selection or objective criteria.. Inc. the goals of the Act must be considered.Ed. 69 L. 504 F.S.Supp.Ed. 1041. is to provide criminal ocosms of community. affirmed 722 F.S. U.2d 739. 783.Ed.Supp. :<Jnn.Ct.2d 321. 23..S. 3586.S.15 ~ Act in Generin federal court fair lCt. D. v. 1993.2d 169..S. Butts.J. 26. v. Exclusion necessary Absent showing that some cognizable group was excluded from jury selection process.

Teller. 667. U. 944.32 and cannot claim as a matter of right that his race shall have representation on the grand jury. did not constitute substantial violation of the Act. La. 1208.Ed.S.Ct. Fla. Gregory. 3 Ill.Ed..-Alexander v.Supp. 359 N. 806. State of Tex.-Hernandez v.S. Percival. Time Time is not of the essence of the Jury Selection and Service Act which requires that grand jury selection plan must provide for periodic emptying and refilling of the master jury wheel the interval for which shall not exceed four years. 39.Ed. 730 F.-State v.37 The equal protection guaranty does not require proportional representaL.2d 32l.Ct. 33.2d 653: 36. 1208. 84 L.. 459. U.. D. 461 U. 84 L.Ct. Inc.E.S.2d 692. 524 A. 625. 806. 542 A. 1171. 469 U.Ed. 58 L. denial of habeas corpus affirmed 983 F. 29. 240 S. 102 S. 756 F. 1208. Ill. 398.J.-State v. Tex. 103 U. 38.-U. 475. v.Supp.2d 61. 1170.S. 346 . 84 Geographic representation U. 37. 451 F. 398. 72 L.34 The grand jury need not be a mirror of the community 35 or a fair cross section of the community. certiorari denied 99 S. Showing of Violation a. and not the actual grand jury. Generally.Ct. 359 N.2d 418. 218.Ct. 351 So. U.S. certiorari denied Northside Realty Associates.S. Tarnowski. 105 S.-State v. 72 L.J.. Lawrence. Inc. State. 936. 207 Conn. 595. certiorari denied 105 S. U. U.Dec.Supp. 77 L. In General Accused establishes a prima facie case of an equal protection violation in grand jury selection by showing substantial underrepresentation of an identifiable group and a selection procedure that is susceptible to abuse or is not neutral.Ct. Library References Grand Jury 0:>2*. Test.J. 550 F.Ed. Neal v.§ 14 § 14.Ct.Supp. 1171.S.-Akins v.Ct. 496 F.Ed..-People v. D..S.S. 439 N. certiorari denied 105 S. Gregory.Ct.. 105 S. certiorari denied Spurlock v.Supp. C.. 84 L. 439 U. 89 L. Avcollie. 105 S.S. U. 84 L. 3 Ill.C.Ed. Bearden. 1221. 453 A. CA7(Ill. certiorari denied 103 S. 469 U. 1208.2d 803. 8.S. 947. 882. 480 F.S.Ed. 456 U. Stewart.Ct. GRAND JURIES Right to Particular Composition 38A C. v.S.2d 194. 102 S.S. v. 1993.469 U.Ct. 35. State of Texas.33 The venire need not be a mirror of the community.Dec.2d 692.2d 321.2d 188. 456 U. 72 L. 32.S.Ed.S.S. 469 U. 65 S.3d 410. 1170.Ct. 456 U.17.Ed.Ed.2d 456. 783.C.2d 577. U. D.-Andrews v.Mich. on remand 555 F. U. certiorari denied Spurlock v.Supp.Ed. v. in violation of local plan and Jury Selection and Service Act.3d 410.. Teller. 34. CAColo.S. 1276. 469 U.A.. which must represent a fair cross section of the community.S.S. 31. Del.2d 456. 1171. U. 659 F. 17.S.App.Ed. Tex. v. State of Delaware. 124 L. Ramos Colon. 41. Conn. 102 S. Louisiana. 1208.-State v. 352..s.2d 321. U. 1692. Mo. 337. tion of all the component ethnic groups of the community on every grand jury.31 Accused cannot demand that members of any particular race be included on the grand jury. Fla.2d 828. Ricketts.Ohio.S. the burden shifts to the government to rebut the presumption of discnmination.y.s..Ct. 325 U. 123.2d 493. 415 F.S.49l. 1993. v. 326 U. C.Ct. 595. 98 L.2d 590.31 L. Library References Grand Jury 0:>2*.S. 469 U.2d 692. Guoladdle. rehearing denied 740 F. The grand jury need not be a mirror of the community.Ga. CAGa.Ed.S.-PeOple v.Ct. Tex.AAia.2d 979. 443 So.. 106 N. 508 U. 626.S.2d 237.Puerto Rico.S.-Bryant v. N.-Stewart v. rehearing denied 740 F.S. Ramseur.Ct.40 Every identifiable class or race need not be represented on the grand jury. 49l.26 L.Ed.2d 724.. v. 39 there is no requirement of precise proportional representation of any particular group on the grand jury. 74 S. rehearing denied 66 S.C.S. U.-U. CAAla.S.Ed.Ct.2d 32l. v.Ed. 40. 730 F.S.. 429 F.-People v. certiorari denied Spurlock v. 84 L. 108 Misc. 188 Conn. where starting number methods did not substantially affect randomness or objectivity of selection process. 928. Wright.S.W. 325 U. U. 2433.S. App. 347 U. D. La.S. 2088. 714 S.S. 90 L. Conn.S. 944. U. 30 or a grand jury composed only of individuals who have interests or occupations similar to those of accused.Okl.3S Fairness in selection does not require proportional representation of races. Inc.2d 979. U.2d 321. in order to show that an equal protection violation has occurred in the context of grand L.-U. N.2d 456 and Browning-Ferris Industries of Georgia. 405 U.C.2d 907.Ed. Accused has no right to a grand jury of any particular demographic composition. 90 L. 866. 1170.S.2d 979. 326 U.-U.-Campbell v. rehearing denied 66 S.S..S. 730 F.S. D.-U.-U. State..2d 299. Gregory. 1993.S. 89 L. certiorari denied 105 S. v. 386 So.2d 78. Mulroy.S.Ala. If a prima facie case is established. 370.S. v.E.2d 600. v. on remand 555 F. In general b.. 240 Ga. 1208.. Gibson.2d 299.Ct. Ga. 45 Ill. 936. Accused has no right to a grand jury of any particular demographic composition 29 or racial composition. 30. Fair cross section a. Public notice Jury clerk's failure to comply with requirement of public notice before and after each drawing of starting numbers from jury wheel. it is the master jury wheel. 1692.2d 321.S.S.Ed. 86.). 276. 1276.2d 803.C. U.-U. 92 S. 86.S. 91l.-U.S. 567. U. v. 45 IllApp. U.S.Supp.-U. v.Y.2d 536-Akins v. Ill.36 Under the Jury Selection and Service Act.E.. certiorari denied 113 S.-State v. U.2d 1215. 339. U. 65 S. 936. rehearing denied 740 F. State of Texas.41 § 15.Ed. State.2d 456 and Browning-Ferris Industries of Georgia.

-U. but once defendant established the underrepresentation. 83 L.2d 498.H. C.Ct. 1692. Hopper. 469 Ill.2d 1078. Tex.S. 459 So.2d 518.C.S.48 equal protecg.2d 864. thereby evidencing prima facie case of discriminatory purpose. 155 Ga. 665 S. 48.S. S. 46. 1704.). 508 Petit juries Where both grand and petit juries were drawn from same venires. 469 U.-Boykins V. 69 L. 398. CAN.S. certiorari denied 110 S. 1171. D.Ct. La. Tex.Ct. 482. 452 U. 47. 482.S..45 A selection procedure that is susceptible of abuse or is not neutral supports the presumption of discrimination raised by the statistical showing. accused must show that the procedure employed resulted in substantial underrepresentation of an identifiable groUp.S. 806.3d 410.C. 1272. ITa prima overnment to V. 5 F. Commonwealth.Ed.S. Tex.Ed.ALa.-Ford V. CATex. certiorari 347 .208. 493 U. :hearing denied .2d 565. 456 U. U. U. 430 U.-Cerda V.. 2244.S. 104 S. 3066.-Castaneda L. 1272..W. based on statistics. to 667. on rehearing 756 F.. of grand (1) Only consider eligIble popnlation. 1272. Partida.-Castaneda v. 325 U. and when this occurs. 482. 430 U. distinct class.Ed. Tex. 65 S. 970.S. U. 90 L.. Manson.Ct.-Newman V. 51 L.-LaRoche V. it appears unlikely that particular pattern of racial distribution would have resulted from random choice of grand jurors. U. U. 873 F. certiorari denied 102 S. App.Ed. lenial of babeas S. Foremen As evidence of discrimination in constituting racial composition of grand jury. substantial selection proI.~ C. 69 L.S. the statistics may amount to circumstantial evidence sufficient to satisfy intent requirement.2d 1483.47 it has also been held that a prima facie case requires proof of a distinct class. 482. 86.2d 391.469 (2) Absolute difference test. 260 S.W. 430 U. 1272. (3) If. D. certiorari denied 113 S. 930.2d 1299.2d 502.S. he has made out a prima facie case of discriminatory purpose.41 number of members of one race was less than that race's proportion of eligible individuals. Population ual protecct.2d 431. U. 539 F.ction of grand jurors was not "period of significance.S.Ct. Tex.App.S.W. 392.Ed... 914.S. 977.Ct. jury selection. 2986.Ct.Supp. certiorari denied 101 S. U. over a significant period of time. 930.2d 770..S.Supp. 121 L. 5.S. Partida. 78. 89 L. 97 S. 1918. certiorari denied 105 S.6(Tenn. State had the burden to rebut the case.2d 498. 430 U. State of Texas.-Castaneda V. 718 F'2d 500. 97 S.S.E.Ct.C.S.Ct. Tex. 491.App. it is reasonable to infer that discriminatory racial factors have entered into the selection process. Manson. 53 L.ALa. 97 S.2d 600.S. (3) Whether a significant disparity exists between percentages of blacks found present in the source of jury list and those actually appearing on grand jury panel is determined by the difference between the percentage of blacks on the grand jury list and the percentage in the population as a whole and not the percentage of blacks on the traverse jury list. n.S. 469 U.Ed. 482. U.42 The first step is to establish that the group is one that is a recognizable. 1276. Brummitt. 433 U. rehearing denied 66 S.J. Tex. Ga. Manson.Ed..-Moultrie V. C. CA5(Tex. distinct Class on grand jury are inadequate as evidence of intent to discriminate.S.3d 607.2d 875. 940.Supp. Ky. U. but how clear such pattern must be appears to vary with nature of the case. 90 L. Commonwealth.S.Ct.App. 3066. Partida. 984.2d 325. 326 U.. 97 S.-Castaneda V. U. 78.Ct.Ed.-Villafane V. 1208.S.AGa.Ed. U.46 While it has been said that. 78. 504 F.Supp.Ct. 644 S.S. GRAND JURIES /~ ps of the rirness in ~presenta­ of precise liar group ~ class or md jury. 716 F.Conn. 131 L. 1272. 452 U. Ill. 905.2d 221-Ellis V. ratio approach and focus upon differences caused by underrepresentation of reCOgnizable. the degree of underrepresentation must be proved. 51 U. number of blacks appearing on petit juries were to be looked at to obtain a full overview of system in determining whether there was underrepresentation. on remand 785 F. 469 U.Ed. of his class over a significant period of time by use of the gross population statistics.2d 465. 806. Partida.App.Ct.-State v.2d 1171. 97 S. C.-Villafane V. and thus primary reliance is placed by the court upon the statistical decision theory as means of testing probability that certain degree of underrepresentation could have been result of random choice rather than intentional discrimination. 506 U. a mathematically incorrect methodology.418. 452 U. 715 F.. 51 L.S.Ed. C. statistics alone can establish such clear pattern of discrimination in grand jury selection that they cannot be explained on any legitimate grounds.2d 498.. U.. by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors. Newman. singled out for different treatment under the laws.2d 770.C.2d 304. 83 L. 38A C.). writ denied 463 So. standard deviation analysis was to be applied. 392.Ed. 39 F. ring denied 740 . affirmed 639 F.Ct. 3066. :ertiorari denied Period Period of two years of random sampling of jury panels on which defendant based his statistical data to establish racial discrimination in method of sele. certiorari denied 115 S.-Jefferson V.Ed.Fd2d 852. 44. 45. certiorari denied 101 S. Henderson.2d 1185.2d 521.Ed. certiorari denied Boykins V. 80 L. 984.S. 430 U. State.Ct.2d 1528.S. 51 L. 43. 151 Ga. App.43 Next.Conn.2d 498.2d 431.S.Ct. 466 U. Statistics (1) Under some circumstances. 347 U.Ct.Ct. Martin. 665 F.S.S.Ct.3d 410.2d 384-Ross V.S. the degree of underrepresentation. C.2d 830. certiorari denied 105 S.2d 498. 665 S.Ed.Ed. 84 L.S. U. 398. 72 L. 297.Ed. 504 F.S. Ky. 1171..2d 1467. U. V.2d 325. 419.S. Morgan.S. Perrin. State. once accused has shown substantial underrepresentation.44 Purposeful discrimination is not proven by showing that on a single grand jury the 42.Ct.. (2) Proof of discrimination in grand jury selection process shonld be based on eligIble popnlation statistics rather than gross popnlation statistics.-Cochran V. 459.Ct.S. 6.Ed.2d 431. rather.2d 770. 626.Conn. 690 F. Blackburn. certiorari denied Maggio V.. affirmed 639 F. 1 Cir. 325 U. affirmed 639 F. and a procedure that is susceptible to abuse or not neutral. 930.-Castaneda V.S. rehearing denied 544 F. 2433. Maggio. appeal after remand 271 S.-Akins V. 962 F. as written or as applied.2d 304. Lynaugh. 69 L." such as would satisfy guidelines set out in federal cases for establishing prima facie case. 7 Dist.2d 995. grant of habeas corpus reversed James V.AS.. Partida.-Ford V.2d 1100.S. 107 L. 51 L. (4) Grand jury discrimination was not to be evaluated through comparison of straight racial percentages. James.A. D.Ed..J.-Villafane V.E. certiorari denied 101 S. Whitley. 97 S. 504 F. 478. 84 S. fact that none of grand jury foremen during period analyzed was black was irrelevant.

78 S. 2 L.C..2d 498.. 55.-State v. setting forth such facts as the number of members of t. 1269-U. v. Mo. by government showing of "adequate justification" for disproportionate representation of identifiable classes.. RI.2d 1212. 905. 1272.2d 883 and 104 S. 1272. 321 Or.App. 97 S.S. 51.Rptr.S.2d 498.-People v. ment fair cross section case..2d 509.Ct. 906.E. two cases.S. 644 S. 608 P.N.57 The disparity in representation must be substan- Tex.Supp. 93 C.. 457 N. chance and accident alone do not constitute an explanation for the continuous omission of a partic- In order to establish a prima facie violation of a fair cross section requirement with respect to grand juries.E.S. New York.Tex.2d 498. C. 430 U. 316.Ed. Estrada. accused must show that the group alleged to be excluded is a distinctive group in the community. v. 627 S. Stewart. 604 S. Jenison.-State v. 55 The fact that the group allegedly discriminated against constitutes a governing majority is insufficient. L. 970. 655.Y. v. review denied 899 P. 66. U.W.C.2d 166. Donohue.S.. and that this underrepresentation is due to the systematic exclusion of the group in the selection process. 3585.. Abell.S. State of Louisiana.S. Garrett. 271 S.. C.430 U. 7 Dist. Acosta. Causal link Prima facie case of grand jury discrimination is not made out by "significant disparity" alone or by "significant disparity" and mere "opportunity for discrimination.2d 908..S. certiorari denied 113 S. U.49 or by showing underrepresentation on numerous grand juries over a significant period of time. App. Fair Cross Section In order to establish a prima facie violation of a fair cr~s section requirement with respect to grand juries. Ga.2d 1143. Musto. certiorari denied Dentico v. 56. 905. 233.53 The mere general assertions by officials of their performance of duty is not an adequate justification for the complete exclusion of a particular race from grand jury service.Ct.-Eubanks v.S.AGa. 2 L.S.S. 468 U. 223.Supp. Conn. Systematic exclusion (1) Necessary..466 U.Ct. 469 N.-Castaneda v." but only by proof that infected source provided opportunity for discrimination and that use of such infected source produced significant disparity. 506 U. Foxworth.E. 51 . 108 S. U.-Cerda v. 104 S. D. 356 U. State.Supp. 715 F. 815 F.2d 1036-U. It has also been held that a prima facie case of discrimination can be demonstrated by showing underrepresentation on the particular grand jury that indicted accused and a selection system that is subject to abuse. 584.S.430 U. Partida. 297.. 155 Ga.-Jefferson v. 52 A simple protestation from an official that improper considerations played no part in the selection is insufficient. certiorari denied 103 S.-People v. without showing underrepresentation on the particular grand jury. State. D. U.56 h. nor is state's burden met.Ed.Me. 484 U. 951.Supp. v.2d l. 970..2d 366. U. as it would be in Sixth Amend- Group must be cognizable Cal.-U. 104 S.2d 83. who are not of good moral character. Daly. v.2d 402.Ct. C.Ed. 208.-Fouts v.RFed. 157.-Castaneda v. State v.-Cox v. 348 . 51 If a prima facie case of discrimination is established.-State v. 482. 194 Conn.-Eubanks v. (2) Prima facie case is not rebutted by simple allegation that figures establishing population percentages do not make allowance for excluded classes.A6(Tenn). who are illiterate.2d 883. Walton.-Jefferson v. Morgan.C. 297. 1217.S.A6(Tenn.Ct. La.2d 991. Underrepresentation alone insufficient Ariz. U.S. 98 L.S. 3586. C. Aimone. D.2d 22l. 51 L. Partida. 78 S.Ed. appeal after remand 894 P. 346. D. 482.Ct.Ct.2d 864.. 50. State. State of Louisiana. Tex..Ed.J. 599 F. C.2d 822. and that this underrepresentation is due to systemat· ic exclusion.Ed. Tex.2d 1185. 155 Cal. 584.-State v. Garrett. N. App..AGa.54 Furthermore.C. Castonguay. 146.Md. 80 L. U. The burden then shifts to the government to prove that the selection system furthers a significant state interest. 82 L. 962 F. 97 S. 82 L. 962 F.-Espinoza v.2d 875.W.2d 916. 218 Conn. 552 F. 459 U.be underrepresented group who were not residents of the area.Fla.S. 311 Or. D.App. accused must show that a group is distinctive. 125 Ariz. Guzman. 52.468 U. ular race from grand juries over a long period of time. U.Ct.2d 22l. 788--U.J.2d 1197. 68 AL.A3d 76. 240 Ga. 486.S.50 However. certiorari denied 113 S.2d 81. 2155.§ 15 GRAND JURIES 38A C. 482.2d 1543. 714 S. certiorari denied Jones v. 705 F.S.S. App. 60 N.Y.AMass.S. affirmed U. certiorari denied Guzman v.J.. Morgan.S.S.-State v. or who are prior felons is probative of whether underrepresentation of particular group is unlawful. Examples (1) Evidence detailing procedures followed by Commissioner of Jurors in selecting grand jurors. 57.Ct. Or. 239 S.Ed. 54. D.Ed.2d 54l.S. Zant. 356 U.-Cochran v.Ed. 121 L. habeas corpus granted Garrett v. v. Partida.2d 635.Ed.S. 121 L.S. appeal after remand 590 A2d 901. 39. 122 RI.. it has also been held that only if there is underrepresentation on the particular grand jury does the makeup of prior grand juries become relevant.2d 1185. 540 F. 898. 416. 418.Supp. 429.S.). 74 L.2d 19l.2d 991. 134 Or.Ed.S.Y.Ct. State.Ct.C. 506 U. 731.N. 53. that its representation in venires is not fair and reasonable in relation to its numbers in the community. Morris. U. Ga.2d 724.W.S. 97 S. 1272. Tex.S. U. Tex.C. that the representation of this group in venires is not fair and reasonable in relation to the number of such persons in the community. 142.S. 49. U. La.Ed. Cr.W.Ct.-Castaneda v. v. Jenison. 485 F. 51 L. 405 A2d 3. Montgomery.S. U. the burden shifts to the government to rebut the presumption of discrimination. Gibson v. 809 P. 573 F. 574 F. 481 A2d 56. 1217.. 718 F.App.

2d 1215. Davis. 346. 1171.S. Ohio-State v.Ed.J. 51 t. Conn. the proper focus of inquiry must be the impact of challenged process on grand and petit juries. 481 A2d 56.S. (3) Ratio method.Supp. appeal after remand 590 A2d 901. on whether the array was reasonably representative of the community.Y. 2155.S.-U.S. v. U.Supp. 89 AD. v.J. CA2(Conn. 89 AD. 5. v. (3) Fact that group members do not respond to sununons for grand jury service to qualify in proportion to their representation within the community is not an inherent defect in the selection process sufficient to constitute a showing of systematic exclusion. 416. 468 U. there is no difference between underrepresentation in equal protection cases and systematic exclusion in fair cross section cases.-State v.2d 321-U. 3586. could not be used since that method yielded results that distorted reality in situation in which only a very small proportion of the population was in group.-State v. certiorari denied Dentico v. 466 U. Davidson. certiorari denied Guzman v.S..S.roup in the his group in ation to the ty.S. 59.2d 979. Ky.Supp. 468 U.E.2d 14. 799. 680 S. 454 N. 194 Conn.-U.S.CNJ. 356 U. 80 L. 397 N.S.2d 883 and 104 S.CNJ.J.-State v. 468 U. Castonguay. App. appeal after I 103 S.W.S. v. 1217. affirmed 457 NE. U. 454 N.Y. rtiorari denied !17.2d 916. 60 N. 486. certiorari denied Spurlock v.Ct. Musto.W. 1217. (6) In determining whether a cognizable group has been substantially underrepresented on a grand jury venire. Conn.59 Once accUsed establishes a prima facie violation.S.. Aimone. rehearing denied 740 F. (3) Where statutory procedures desigued to secure random selection of grand jurors and prevent "stacking" of grand jury against a suspect have not been complied with.-People v.2d 355.S. The test for a cognizable group is the same under the equal protection guaranty and the fair cross section require- olation of a respect to . Library References Grand Jury €:>2*. 108 S.Ct. 218 Conn. Guzman. U. 58. 3585. Conn. such as women and blacks. 479 U. but on those of the group who are eligible to serve as jurors.-State v.2d 692.S. the court will look to people and not percentages.S. Castonguay. 557 F.C.Ct. U. 533 F. Gregory.N.468 U.82 L.60 § 16.2d 541. appeal after remand 590 A2d 901.2d 852.W.. v. 218 Conn. 1208. for the purpose of making out a prima facie case. affirmed U. C. rrett. New York.Y.Y. v. certiorari denied Dentico v. v. U. g of "adequate nlifiable classes.-People v. New York. 970.2d 56. 715 F. 1217.456 U.. 104 S.-State v. U. 482.Ed2d 321. I. 1217. 38A C.2d 822. 194 Conn. U. 60 N.2d 1143. Aimone. appeal after remand 590 A2d 901. v. (5) Where group constituted relatively small percentage of eligible jury population. Musto.Ed. accused indicated by such grand jury has no obligation to demonstrate that such "stacking" in fact happened to him. U.82 L. 416.2d 822.2d 56. 416.58 The disparity must be based not on total population.S.-State v.S. Cabrera-Sarmiento. Castonguay. 2244.Md. it will consider the effect of the deviation on the absolute numerical composition of the grand jury. 1208. 1217. (2) It bas been said that.-U. 157. v.2d 403. 82 LEd. Brummitt. 469 U. 271. v. 540 F. 540 F. 486. 80 L.O. 17.3d 315.S.S. D. 194 Conn.S. court would focus on absolute disparity. 730 F. it is appropriate to define community in terms of voting age population since only those persons 18 years of age or older are eligible for jury service. U. 82 L. v.S. 951. 346.S. U. GRAND JURIES § 16 9 period of ly discrimimajority is various groups have been found cognizable. 486.2d 924. illegal discrimination or violation of the fair cross section requirement with respect to grand jury selection must i. affirmed U.S.S. 469 N. that is. Aimone.-U. rather.2d 248. Musto. as discussed supra § 15. J. 540 F.S.2d 54I. certiorari denied 107 S.2d 14.)..Ed... 3585. Castonguay.Ed.2d 822.Y..Ct.2d 883.2d 462. certiorari denied 105 S.Ed.Ct. as the evil which must be avoided is the appearance that it could have happened. U.C. 218 Conn.Ct. C. 84 L.Ed.468 U. 72 LEd.2d 403. 486. and that systematic n process.S. the burden shifts to the government to prove that the selection system furthers a significant state interest.2d 856.C. 60.2d 883 and 104 S. 665 F. 715 F.. 84 L.S. 3586.Ct..Supp. D.S.S. 104 S. LaChance. McFerron. Daly.S. Potter.57 be substan- N.8A C. appeal after remand 590 A2d 901. 104 S. 218 Conn..S.Fla. 416.. D.2d 852. (2) Party may assert underrepresentation of group on grand jury list. 466 U. lted Garrett v.ANev. Fed.ANev.Supp. 1170. 486. 583 S. 3586. 481 A. Donohue. Conn. 540 F. or comparative disparity method. Conn. 104 S.2d 1293.469 U. affirmed 457 NE. Conn.Supp. 641 S. appeal after remand 590 A2d 901.2d 208. 82 L.S. 715 F. v... 416.Ct. 481 A2d 56. 30 U.2d 852.Y. Mo. 552 F. the group . 105 S. Particular grand jmy (1) Defendant bears bUrden of showing that underrepresentation of distinctive group exists not only generally but also on his own jury or grand jury panel.S. 468 U. v. 1269. CATex. appeal after remand 590 A2d 901. N. affirmed U. 93 L. 951.IlVolve a cognizable or distinctive group. 51 1036--U. Mo. 574 F. 349 . Statistics (1) Statistical decision theory conld not properly be used since focus of due process test is not on intent but.S.S. tial. 481 A2d 56.2d 883 and 104 S. of a fair cross accused must tion in venires umbers in the ue to systematnrnent to prove state interest. 883. 2155. 14 O.2d 3.Ed. D. D. although there was no such underrepresentation on his jury. 481 A. 482. (2) Defendant adequately stated percentage of community made up by the groups by providing voting-age populations.Ed. Bernard.Ct. (2) Absolute difference test could not be used since that test is inadequate when the percentage of persons in the group is small in relation to the entire population. 82 L. 977.-U. 469 N. and since the result obtained from use of that test distorted reality. 970.S. 60 Ohio App.2d 9OI.-U. Kieifgen.Ct. U. certiorari denied 102 S. 356 U.Ct. CAAla.--Commonwealth v. v. v.S. 1217. Groups Covered With respect to the prohibition on discrimination and the fair cross section requirement applicable to grand jury selection.S. 82 L. certiorari denied Dentico v.2d 1143.S.-U.S.-State v.S. certiorari denied Guzman v. Castonguay.2d 916. 486. 346.Ct.2d 883.S.Ct. 194 Conn.S. Age (1) In determining underrepresentation of identified groups on grand jury. 194 Conn.Y.S. 218 Conn.S.S.-U.2d 883-U. 16.Ed. Castonguay. 416.Ct. 3585. 194 Conn.Ed.. (4) In assessing whether a given defendant's constitutional or statutory rights have been violated through the operation of a jury selection process.. App.Y. Guzman. 218 Conn. -U.-State v.S.S.2d 521. 208. 481 A2d 56. 104 S.S.S. 788 F. 130 U.

CA. certiorari denied 109 s.2d 366. RI. 258 Ga.A. 82 L.a.-Gibson v.S. U. v. 62.450 U. South Carolina. Porro. 557 F.Ga.Supp. 78. 82 L. v. 365 S. 405 A.. 65L. Gibson.2d 901..-U.. 867..S. 102 L.Nev. v.Ed.2d 1543.Supp. 469 U. 67.-U. Ga. 207.-U. 347 U. v. certiorari denied 99 s. 849.S.S.S..Supp. D.Ed. U.. State. 32.J. U.-Lee v. U.CTex. 67 L. State of Texas. U.Supp. U.S.C.S. 309. State. 155 NJ. Tranakos. 690 F. 195.S.71 such as males. 98 L. 269.S.S. 557 F.C. C.S. v. 788.J.S. U. 347 U.Super. v. 971. appeal after remand 589 A. Hidalgo County Grand Jury Com'rs. State. Nonhomeowners U. rehearing denied 105 s. U. 82 L.2d 1293. 617 F. and must be perceived as distinct by the community at large.-Gibson v.S.Ed.S. Single persons Ga. Marrapese. v. or experiences which cannot be adequately 61.Supp. 488 U. 468 U.2d 924. 468 U. C. v.S. 257 Ga. Yonkers Contracting Co. Tex.E.CN. C.Supp. 705 F.72 women. certiorari denied 101 s. 715 F.69 Discrimination on the basis of ancestry or national origin is covered.a. 39. 66 The group must comprise a substantial percentage of the population. Sands v.Super. 1192.J..W. S. D.E.2d 343. 964. is distinct from the rest of society.S. 3050.. Unemployed U. 74 475.74 Hispanics.S.Ed.2d 920. U. 667.S.. Ga... 350 .. 194 Conn.. 680 S. certiorari denied 108 S. 142. 552 F. D.-U.Supp. Ky.S. 316.S. U..2d 165. tutors.E. 480 F. State of Texas. 80.S. 98 L.A.-Pope v. 1217. Kleifgen.S. 79. 622 F. 1217. D.-U. Plath. 77.-Ciudadanos Unidos De San Juan v.. 552 F..76 the young.65 It must be characterized by a basic similarity in attitudes.S. 552 F. U. U.2d 1543-U. 63.C.-Ciudadanos Unidos De San Juan v.S. 484 U. State.-U. Potter. Conn.S.2d 1293. 126.S. Zant.S. D.A.Nev.a.S.E. affirmed U. 82.2d 807..CTex. 530. v. 1479.2d 429.2d 901.E.-U. D.Ed. 967.2d 807. 339.Mont. Couture.CMd.-State v. and potential for prejudice.. 1074. 81. Ga. D.Rptr.-Sands v. 98 L.2d 696.Tex. v. 74 475. D. U. 610 F. Layton. certiorari denied Arnold v. 239 S.E. 207. 573 F. Abell.CTex.63 Factors considered include adequacy of definition.Ed. Tex. 346. 946. 879. 468 U.S. 58 L.C.77 and the poor. v. D. 448 U. certiorari denied 108 s.S.S. 1226. 69. and whose interests cannot be adequately represented by other members of the grand jury panel. C.-U. 78 Various groups have been found not cognizable. v. 104 s. 71. Gruberg. Kleifgen.S.S. 467 U.. 257 Ga.E.SO the young.Ct.2d 613. v.. a common thread or basic similarity in attitude or ideas or experience must run through the group. Musto. 574 F. v. 74. 1479. 218 Conn.C. CA.S. v.Ga. 256 Ga.A.S. 75. C. s.N.W. 74 475.-Hernandez v. U.CGa.S. 382 A.S.J. Students N.2d 920 and 105 s. 484 U.-U. 1269. 519 F.2d 3. appeal after remand 354 S.-U.. v.2d 619.-People v. 122 RI.S.2d 971.S.S. State of Texas. Soshone and Arapaho U. 195. appeal after remand 354 S.Supp. 873.S. U. certiorari denied Dentico v. 3560. 907.Y.a. 573 F. 731. 1551.Ed.H.2d 822.S.a. 32.a.59 L. 617 F.2d 831.-U. D.Ed.Super. U.75 American Indians.a. 67 L. 3585. 82 L. 347 U. and students of recognized universities and colleges was sufficiently large to fulfill the cognizability reqnirement.Ed.a.A.Potter. 866.82 work- ment. 65.. CA. Cunningham.Ed. D.S. 284 S.2d 862. 873.-Fouts v.-Pope v. Tex.-U.Supp. 757. Union affiliation U. 1047.a.2d 706.2d 300..Supp. 158 N. 3586...2d 950.S.a. College persons Group consisting of the presidents. 788.67 Discrimination in grand jury selection need not be based upon race or color in order to violate the equal protection guaranty. 724. Hidalgo County Grand Jury Com'rs. U.Ed. 345 S. s. U.-Commonwealth v. 152 N.Cal. McFerron..N. 557 F.N. Kleifgen.S.-Hernandez v.2d 883U. 468 U. 1551-U.a. 579 F.C.64 The group must be defined and limited by some factor. 98 L. U. Jenison. 68. certiorari denied 105 s. 104 s. v. certiorari denied 101 s.-Hernandez v.Supp. 1226. affirmed 385 A. 345 S. Tex. Daly. 66. Aimone. 83 L. Donohue. S. certiorari denied 100 s.Supp.S. 76. 62 The essence of the cognizability requirement is the need to delineate an identifiable group which. 1.-Burks v.E.-State v.Ed. 866. ideas.CMe.2d 221. 64. 991.S.. D. Cunningham. U. 281 S.a.Y.-U. Estrada.Tex.S. 439 U. D.-State v. 82 L.a.2d 613.Supp.Ed.-State v.Ed. degree of cohesiveness. 70.-U. s. State.S.S. 270. Daly.Ed. v. Butler. 73. 705 F.2d 883 and 104 s.S. 667.A.2d 1121. 1265.COhio. 195. Inc.3d 76.S.S. Rosenthal. 155 CaI.Ed.-State v.§ 16 GRAND JURIES 38A C.2d 1136. 540 F.S. 450 U.-U. 788. 28. 439 U..A. 622 F.2d 41..73 blacks.H.Supp. v. Cal.S. 259. 866. appeal after remand 313 S. 573 F.S.68 Racial groups other than blacks and whites are protected. 72.CRI. represented if the group is excluded.2d 99. 61 Cognizability is a question of fact.2d 429.a. CrApp. 277 S. 256 Ga. 964. 482 A. Nonwhite U. C.2d 159. Zant.2d 389.81 the poor. 234..S. Daly.2d 831. C.Nev. 27.Nev. 93 CA. 682 F. in some objectively discernible and significant way. certiorari denied 99 s.S..Wyo. 377 A.S.CN. .Ed.2d 1293. 482 F.Supp.S.79 such as age groups. 98 L. v. 493 F.70 Various groups have been found cognizable. 240 Ga. 667. 583 S. NJ.a.Nev.S.S.J. Brady.2d 159.a. professors. and there must be a community of interest such that the group's interests cannot be adequately represented if the group is excluded. D.D.2d 1258.

rehearing denied 615 F.-State v. v.-U. Duteau. v.S.J.A. cant interest to the state have been upheld. 252 Ga. 86.C.).E. App.A.2d 1119. N.Mass. Gartin. State.82 L. ~pp. 731.Ct.Ed.. 95.S. Musv.S.85 recent residents. 97. 484 U.Supp. 1551.J.-People v. v. 484 U.Ed.-U. v. Thigpen.J. 89. 599 F. 155 Cal.S.S. State.A.2d 1100.Ed. 330 S. Legrand.N. D. 541 F. rehearing 1920 and 105 S. 867. 52 L. C. McFerron. C. Butler.S.S. 6.2d 883- College professors and students R. appeal after remand L08 S.2d 831. though they belong in cross section from which jurors are drawn.S. Avalos.-State v. 207. Mass.. Collins. 403. v. 92.71 {S.-Sands v.Tex.-State v.Cal.2d 168.C. Conway. Legrand.Super. 97.Ct. 452 F.S. 502.. RI. N. Professionals Potential grand jurors with "professional" occupations did not constitute a cognizable group. 207. that is.2d 1066. 83. 88 Misc.74 Hispanics.S. Daly. Cal.96 Exemptions granted on request to members of specific occupations and professions whose uninterrupted performance is considered to be of signifi. 610 F. v.Rptr. 424 N.2d 733. Rosenthal.AFla.. Avalos. 617 F. 207.2d 363. 217.Ed. GRAND JURIES § 17 led. 968.Y.S.. D.-U. generally does not result in a constitutional violation. 195. U. 32. Clergymen N. 93 C.2d 778. 155 Cal.S. 155 N.3d 76. U.Supp. C.-Welch v. v. v.C. 88 Misc. 271 N.2d 429. 321.S.A. 316.-U. 28. 66 L. 35 Conn. v. rehearing denied 545 F. D.2d 159.2d 1081.-U. 449 A2d 315.N.S.2d 1100. 507 U.C. D.A.H.Ct. Ga.2d 686.E. Cunningham.2d 807. 1047.S.91 persons charged with or convicted of a felony.S. 90. 82. 387 N. Cunningham.82 work- A statute excluding a class of individuals from grand jury selection must be predicated upon a rational and nondiscriminatory basis.270. Estrada. v. 382 A2d 696.83 the less educated. U..S.2d 260. 1. 122 L.J. 970. 461 A2d 1358.. the exclusion from grand jury selection of various persons has been upheld. 1551. Butler.Ct.2d 1009. U.Supp. ing people. Potter..S.-People v. rehearing denied 545 F. Blue collar workers Cal.2d 41. 463 A2d 1319. v.Tex.S.Ct. Ky. 484 U... and must be nunity at large.J.Ed. 514 F.E. 788.79 the poor.-Commonwealth v.S. 315 S. Marrapese. 385 A2d 1258.94 public employees. 611 F.Supp.5(Tex.2d 28. Cal. 552 F. U. Library References Grand Jury ~2. certiorari denied 99 S. 93 C. 78B-U.C. D. 87. 1551. 617 F. Rosenthal. 367. Porro.78 not cognizable.-U.A.2d 363. er. D.-Sweet v.Supp. cause remanded 551 So.S. Courteau. 38A C. 99 The excusing of grand jurors on an individualized basis. certiorari denied 109 certiorari denied 100 351 .. 'po 1551-U.S.S. .R4th 833. CrApp. C. 101 S. D. South _.S. D.2d 390. Ga. 495 So.2d 159. 17.Ct.Ct. 229 S. 1217. One year U. 519 F. C. 991. 573 F.C. State. IS-year old U. v.Supp.-Rayburn v. Estrada. 950 F.88 Under the prohibition on discrimination and the fair cross section requirement applicable to grand jury selecStandard of review Young persons.Ct.Y. 946. 837.2d 901.84 professions or occupations. Foxworth. D. appeal after remand 108 S.Ct. 731. certiorari denied 97 S.2d 924. 579 P. 97 Various particular occupational exemptions have been upheld. 1406. 98. 2}2.2d 41. 573 F. State. Persons nuder 21 Ga. the exclusion or exemption of various persons has been upheld. 254 Ga. State. 830.Sup. 84. Exemptions.-State v. 207.C. 158 N. U. Conn..E. State..S. 257 Ga. rehearing denied 113 S.W.I. 98. and their claimed underrepresentation does not invoke high standard of judicial review.69 Discriminational origin is Qualifications.S. 892.2d 168. 155 Cal.Rptr.C. 482 F.Supp.-Carter v. Lawyers Iowa-State v.App. 482 F. 873. Ala. State.E.E.C.1 Hidalgo County Grand Jrari denied 101 S. U.Ga. 91. N. 270.S. 5. Alaska-Smiloffv.2d t.. Estrada.. v. Abell. affirmed 551 So.RI. U.C..-U.89 such as aliens.Puerto Rico..Ed. 345 S. U. Manbeck. Ala. U. 449 U.2d 685.-Parks v. 731. 970. 122 L. appeal after remand 354 S. 867-U. appeal after remand lied Arnold v.S.2d 35. v.S. 665. 85.C. C. 96.98 A child care exemption has been upheld.Ct. one which has suffered oppression and discrimination..2d 1090.S.Super.-U.1091. 93.A. D.Supp.C. 66 antial percentage ~lection need not :ler to violate the ~ial groups other ~ted. do not make up a constitutionally highly protected class. 141-U. U. 1656. Ipp. 715 F. 98 L. U. U.Ed.Ct.Y.3d 76.W. 345 S. Lindelow. 468 U.86 and residents of particular areas. 195.Supp..2d. Kirby.-U.S.2d 1..Ct.-People v. affirmed 113 S.93 persons who do not meet a residency requirement. 439 U. 1235.Me.867.38A C. 430 U.S. State. 88. 680 S.-Pope v.H.S.S.S. 397 A2d 912. U. 461.-U.2d 646. 430 U. 5. 724.AGa. Ga. md cognizable.-People v.2d 429.S. 99. 94.75 and the poor.Nev.S.Supp. 256 Ga. 62 AL.Supp.S.S. tion. appeal after remand 354 S. certiorari denied 108 S. 541 F. 32. 52 L.S.S.Ga.2d 807. 257 Ga. 435 F.Ed. ~. 506 U. v.98 L..Ark.C. Ga.Ed. certiorari denied 108 S.-Commonwealth v.-People v. D.95 and persons in certain occupations. 93 C. 1. as distinct from systematic exclusion. 484 U.Y.J. Ministers U. certiorari denied 97 S.Ed.S.-Graham v.3d 76. and Excuses Under the prohibition on discrimination and the fair cross section requirement applicable to grand jury selection. 87 § 17.-Oark v.Supp.C.-U.92 persons whose senses of hearing or seeing are substantially impaired. Layton.-Pope v. 3585.S. 256 Ga. 237 Ga.-Eckstein v.2d 862.S.S.90 minors.2d 831.S. 387 N. 551 So. 552 F. 269. Cr. D.E. certiorari denied Fazio v.3d 76. 384 Mass. D. Daly.~ands v. on remand 551 So. and the excusing of grand jurors on an individualized basis generally does not result in a violation.Rptr.S.-State v.AFla. 1656.2d 706.2d 902.E. Aimone. 58 L.S.2d 1091.

certiorari denied 103 S. 583.O. 1066.2d 1373. 2096. certiorari denied 115 S.S. 62 S. Sharp. 8. Ind. 295 Or. certiorari denied 107 S.Ed.-Bryant v.E. 352 II .2d 498.2d 902.Ct.Ed.O.App. 344 U. 124 L. 508 U.79 L.S. 946. rehearing denied 691 F. Some statutes require random selection.l0 Drawing a grand jury exclusively from those indicating a willingness to serve is not unconstitutional. 9 Where there are qualified members of a particular race available. 73 S. 13.O.-Franklin v.S. 480 U.-State v.O.Ed.-State ex reI.2d 657. 12.S.2d 1027. 295 Or. denial of habeas corpus affirmed Ramseur v. 30 S. U.J.-Moon v. 170 U.2d 442. 344 U. 258 Ga. 123. 430 U. Gortmaker. 932. dissenting opinion Daniels v.Ed.J. 723.S. 393 N. 1416. Wainwright. 947. without either knowing or seeking to learn whether there are in fact any members qualified to serve.2d 305. State of South Carolina. 524 A2d 188.Ed. a constitutional violation may result. 1159. State. 1066.Supp.. 60 OrApp. 1638. 51 L. 188 Conn. U. 94 L. 443. App. 640.S.S. U. 97 L. certiorari denied 113 S.Ed. certiorari denied 103 S. 93. C.2d 493. Cr. 508 U. Baker. Super. State. Or. 3.465 U. 95 Nev.Ed.Ed.2d 497. 3 Cir. rehearing denied 73 S. certiorari denied 116 S. 204 N. Allen.Ed. 133 L. 13 The use of tax lists in the selection of grand jurors does not necessarily violate the equal protection guarantyY The use of voter registration lists as the sole source of names of prospective grand jurors has been upheld. 7.W. 655 P. Partida.2d 127. 2. 42 L.S. 539 S.1559. and Speller v.2d 742. 1370.-Adler v. 123.S.Ed. Equal chance 5. Random selection is not constitutionally required.S. at least where the panel remains large and there is no indication that requests are being granted or denied differentially. Conn. Tex. 97 S. 15. certiorari denied 104 S. the exclusion by officers of all members of such race whom they do not know to be qualified. Or. A1a. Requirement of random process to insure representativeness of grand jury panel demands that each person have equal chance of serving.2d 742. rehearing denied 115 S.O. 461 U. 97 S.S. Daly. 7 Random selection is not constitutionally required. denial of habeas corpus affirmed O'Neal v.2d 78State v. MO. certiorari denied 111 S. 73 S.Ct.W.2d 1215. 106 N. N.S. Long. 934.-State v. 465 U. 524 A2d 188. Kahey. 505. 86 L. Ramseur.O. 482.2d 779. 1066. Tex.Ed. 60 Or. 161. 113 L. 453 A2d 418. but may be required by statute. 748.2d 725.Ed. 345 U.456 U. U. Nev. Allen.2d 653.Ed. 397. 1416. 54 L.S. 827. 443.S. v.§ 17 GRAND JURIES 38A C..-State v.A. 469.O. 946.3d 655.O. Johnson.S..O. two cases.Ed. 11.Ed. 437.O.2d 702... Tex.2d 354. 73 S. 626. 77 L.O.C. 718 S...Ed.S.1370. 426 So. D. 375 S. 461 So. 1272.-State v.Ed. 505.2d 299. Miss.O.-Castaneda v.Ed.6 Thus. Beyer.2d 348.O. 783.-State v. Use of voter registration lists as the sole source of names of prospective grand jurors has been upheld.S. 499 A2d 264.Ed. 1388.S.Ed. 440 S.S. 573 F. 345 U. result in a violation of the equal protection guaranty. there is no realistic risk of bias.-State v. 106 N. certiorari denied 104 S. 264 Ga.S. 6. 17..O. S. 213. 655 P. 982.2d 354. U. 77 L. 130 L. Partida. Mo. 130 L. certiorari denied 103 S.S.. violates the equal protection guaranty. U.J.-Castaneda v. 79 L.4 Where the excusing of grand jurors reduces a group's representation to impotence or unreasonably restricts the possibility that the grand jury will comprise a representative cross section of the community.App.J. 14.-State v.Fla.O. 827.O.S. 97 L.O.2d 742. Ramseur. denial of habeas corpus affirmed 983 F. N. Avcollie. certiorari denied 97 S. La.W. State.2d 512.2 When jurors are excused because they may impair the progress of the proceedings or prejudice the parties or because they have served their statutory time. 218 U. 51 L.79 L. Gortmaker. 1183. a "key man" system of selection is not in and of itself unconstitutional. 668 P.S.S. 1416.J.u . 2841. 2433. 400. N. 594 P.-Hill v. 129.S. IS but may in some circum- even if jurors are excused for reasons not defined by statute.O..Tex. 926. 505. 44 F. 12 However. 430 U.O. 1558. Delo. 18 S. 928.2d 575. 469.316 U. 1272. 295 Or. 723.J.O.2d 676. in and of itself. 97 L. or business reasons protects fairly well against any realistic risk of bias. State of Mississippi. 499 U. affirmed 668 P. a key man system is susceptible of abuse. 8 However.O.Ct. App.S. 686 F. 461 U. 430 U. 903 F.74 L. State of Texas.Ed. 3 A self-selection process whereby jurors are excused for personal. s § 18. rehearing denied 111 S. completely random selection is not necessarily required by statuteS. health. 2088. grant of habeas corpus reversed Zant v.E.2d 1215. O'Neal.-Brown v.-Sanders v. Gortmaker.2d 1010.2d 498. Duplication of names A random grand jury selection process demands a minimization of the duplication of names on the source list. U.E.. Particular Methods of Selection A "key man" system of grand jury selection is not unconstitutional per se. Bums v. affirmed 668 P. 344. Ga. 97 L. Or. 459 U.2d 543.2d 354. 51 L. N. The mere fact that officers are given discretion in selecting grand jurors and that the selection system might be applied in a discriminatory manner does not. 115 L.-State v. 4. 437. Library References Grand jury e->2l2.J.c. Allen.C.S.2d 498. certiorari denied 113 S.Ed. 124 L.-State v.Ed. 834. rehearing and suggestion for rehearing en banc denied. 636 S. certiorari denied 104 S. 10. 339.-State v.s. 1224.2d 733. 271 Ind. 9. 8. 501 U. 482. 788. 1012.2d 575.S. 469. 2433. 947.Ed.2d 653. Moon. 980--Williams v.

-U. Standing of Accused cused's own right to due process. v.2d 7.2d 916. Supplementation a minimization of i9.2d 565. the use of a list of persons with driver's licenses as the sole source has been upheld. 92 Ohio App. 508 Jury Selection and Service Act in general see supra § 13. Cronn. 533 F.17 Research Note GRAND JURIES § 19 yen discretion the selection ninatory mana violation of . 2244. supplemental sources shonld be used only when voter lists deviate substantially from makeup of local community. 799. affirmed 676 F.S. 466 So.pd2d 66.D. 1250.S. v. Ala.. 3586. 28 U.R. NJ. v. (1) When prima facie case of jury discrimination is established..CA § 1863(b)(2).-Del Sol v. stances be improper as violating the fair cross section requirement. 60 N. 537 So. 682 F. the Jury Grand Jury <S=>2*' 17.R. 344 U.2d 203.Ct.2d 1121.24 from the voter registration lists or the lists of The standing of accused to challenge discriminaactual voters. 464 U. 20. U.S. 104 S. S.C.S. v. 9. Brummitt.21 on the ground that indictment by a grand jury selected in a discriminatory manner violates ac§ 19.Ct. 468 U.C. at least in tbe case of gender discrimination.Y. 1217. 991-U. D.Cal. C. 701.s. Brady.S.2d 512.S. 88 .-U. 259. 2163..Rptr.. 3 Dis!.E. Long.2d 967 (per Mr. U.S. Tenn. Cabrera-Sanniento.26 such group. 1217. 655 S.N. 344. 482. 533 F..Ed. affirmed 717 F.S.Fla. 345 U.Supp. rehearing denied 105 S. 468 U. (2) A4ditional sources can only supplement and not supplant voter lists.-U. 456 U.C. Aimone.S. 443. 125 Ariz..3d 76. 946. D. Coe.S. 103 S. 25.Super.C. :ases.Ed. U.2d 801. 454 N. rehearing denied 691 F. U. a "key man" elf unconstituonstitutionally riJ. U.S.S. 97 L.S.C.ion of grand equal protec~tration lists pective grand some circum- In the case of federal grand juries. Marrapese. 459 U. denial of habeas 113 S. 466 U.S.2d 822.Super. New York. Cabrera-Sarmiento. certiorari denied 99 S. 80 L.Md. 64. 443. 2433. 51. U. 1364. D.CA § 1861. 3 Dis!.-State v. U. 77 LEd.2d 688. v. certiorari denied 99 S.2d 1373. more Accused may challenge the exclusion of a group from jury recent case law dealing with petit juries suggests selection and raise a claim of discrimination or violation of the fair cross section requirement even if accused is not a member of that accused may assert the equal protection rights of a juror.Tex..S. affirmed People v. Justice Marshall. 946.Y. 58 L. 79 L.Ed.C. U. D.2d 164. 1074. Cr. Sheppard. 82 L. State. on remand 491 F. except in certain districts. Kiff.S.S. 69 Ohio S!.S. 28 U. App.2d 733.Supp. ~. certiorari denied 102 S. 461 U. 316 u. 16. but some additional source or sources tion against a group· of which· accused is not a shall be used where necessary to foster statutory member was originally justified by some authorities policies and protect statutory rights. supplementation of eligible voter list used to select potential jurors witb some otber· source or source of names is congressionally mandated. 16 Similarly.Ed. 495 So. 377 A2d 950. Selection and Service Act requires random selection. N. 104 S. 469 N. certiorari denied 103 S.2d 83. 51 Voters and licensed drivers La. 92 S. Library References f from those ot unconstitu- ction.. 155 Cal.Ed.-State v. 86 I. 82 L.S.S..-Bryant v. 18. 799-U. v. 12 Howot necessarily . 951.Ct.2d 903.Ct. 724. 457 N.I. is susceptified members exclusion by whom they do er knowing or in fact any Ghe equal pro- Persons entitled to object to composition of grand jury in general are discussed infra § 62.Ct.. CAVa. 23. 468 U.E.2d 615.Y. lresentativeness of Contrary view There is some authority for tbe view that. 799.Supp. 89 A. 540 F.S. 353 .38A C. certiorari denied 104 S. v.S.S. CATex. even if accused is of prospective grand jurors is improper under the not a member of the group.J..2d 883---U. 269. 828.AMon!. 366.s.2d 1020. Ariz.S.2d 41.J. Guzman.Ct..S.-Rayburn v. 346. certiorari denied Dentico v. 152 N.2d 883 and 104 S. 461 U. 407 U. 26. D. 468 U. 580 S.C.-Peters v. Estrada. the end result need not conform Accused may challenge the exclusion of a group to a statistician's technical definition of ''random. 731. D.from grand jury selection even if accused is not a ness. e equal chance of 3. 608 P. witb two justices concurring and three justices concurring in tbe judgment).2d 942-U. Inc.Ct. Tenn.S. 519 F. 2155.S.25 However.C.Ct. 1047. 22. 1217.-U. 19. Cabrera-Sanniento.. 430 u. approved in part.S. certiorari denied 115 S.2d 706. D.S.Y..Ed.Supp.3d 1442.-People v. 1S However.Supp. U.S. 3585.22 Thus.S.Supp.A. Branscome. 745.S.-U. U. State. 7.2d 849. 111 S. State. 350 So.S.F. 1269-U. certiorari denied Guzman v.2d 910.S.D. 439 U. Ohio. 757.2d 484. 97 2d 1373. Ohio.S.. motion overruled 632 N. D. dismissed. v. Musto. 849.S.E. v. appeal after remand 635 N. App.. 493..2d 852. Fla.. 499 U.D. Cr. I 127. 533 F. Ga. 579 F.S. 124. review discharged 548 So. 2096.-U.2d 1143. App.S. 38A C.Ed.Supp. 946. 21.-People v.S.W.82 L.2d 884. v.20 Under the Act. 665 F2d 521.3d 400.82 L.2d 1298.S. 932.C!. quashed in part 486 So. 439 U. 682 F.S. 93 C.S.App. 271 Ind. 715 F.2d 541.Supp. 33 L.-State v.-Post v. 977.2d 403. D. 610 F..59 L. U. 1063.Pa.Ed2d 319. v. U. 158 NJ.Ct.Ct. 686 F.W.N. U.2d 693. 400. 559 F. 932. Wells. Cal.Ct. 113 L.S.Ed.Fla.-State v.-Powers v. rehearing 2096.S. Wainwrigbt.S. accused may not challenge discrimination against a group to which accused does not belong.S. 17.. v.Ed2d 411. Donohue.Y. 72 L. 574 F.S. affirmed 385 A2d 1258. Layton. affirmed U..J.Supp.2d 111O-Castillo v. 146. v..Ed.Ct. v.. State. claim of discrimination 23 or violation of the fair the names of prospective jurors shall be selected cross section requirement. CAFla.App.Ed. Acosta. 74 L.Ed.C. 24.2d 305.Ct." 19 The selection of volunteers from the pool member of such groUp.S. 3586. 130 L. 400. 437. accused may raise a Act. certiorari denied Arrondale v. Porro.2d 83. U.S.Fla. 345 U..Ct. certiorari denied 104 S. Yonkers Contracting Co.J.

La. 62 S. S. 199.2d 464.Va. W. 196 So. Rector.S. 41. Bain. 29.W. 147. 357 Ill. Youell. certiorari denied Waller v..-Lake v. 330.C. 373. 30 but in a state where there is no constitutional provision prescribing the qualifications of a grand juror. It has been said that the qualifications of grand jurors may be changed from time to time by the legislature. 294. 143 Tex. 40.E. 193 N. State. 177-People v.2d 342. 163 N. 100 Fla. 30.§ 20 GRAND JURIES B. 704.Ed.C. rehearing denied 62 S. State. it is held that a grand juror is incompetent where his name has been substituted in the venire for that of another. The presumption is that members of a grand jury possess the qualifications prescribed by law.Ed. v. Tex.W.M.Ct. Barker.Pa.31 Constitutional provisions dealing directly with the question of qualifications will. 158 S.M. 100 Fla. State. Lieber. 100 Fla.E.---State v. 138 N. 775.---State v. Barkley. 192 N. 151 S. 31. 827. 1289.3 Nev. 358 lli. State. 409. 86 L. 316 U. 138 N. 16 S. 349. 545. N.33 However.C. affirmed on rehearing 131 So.Cr. 196 So. 545.Va. Richey.-Waller v: Commonwealth. 373---Peoples v. 38A C. 195 La. COMPETENCY AND QUALIFICATIONS OF GRAND JURORS grand jurors relates only to qualifications and disqualifications generally applicable to all jurors 34 and that it is not to be construed as making all grounds of challenge to the favor which are applicable to a petit juror grounds of disqualification of a grand juror. State. 764. Richey. White. 93 W. 607. According to some authorities.C.---State v. 30 F. 607. be accorded effect.---State v. 117 S.S. 28. 129 So. 97 Fla. denying the validity of an indictment on the ground of the § 20. 36. 319---State v.J. 316 U. 648.42 Presumption and burden of proof as to qualifications. N. 733. 704. 35 So. Va..S. 115. Fla. 147. 107 N. Millain. 34. motion denied 62 S. 319. Iowa---State v.32 Under some statutes. 607. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Gnide following Preface. 120 So. Objections to indictment because of disqualification of grand juror are considered in C.29 especially where it is expressly provided by statute that they shall be exclusive.39 It is the court and not the prosecutor who has general supervisory authority over the qualifications and eligibility of persons called to serve as grand jurors. Austin.2d 866.---State v.E. 316 U.C. Fla. 178 Va. 195 La. 679. Reilly. 182 Iowa 1. 86 L.28 Sometimes the grounds of qualification or disqualification stated therein are deemed exclusive.35 The placing of his name on the grand jury list is neither a necessary 36 nor a sufficient 37 qualification of a prospective juror. 354 . 349.-Lake v. Fla. the qualifications of grand jurors are the same as those required of petit jurors.-Howard v. 101. however.E. Library References Grand Jury =5.---State v. Indictments and Informations § 176.C. 106 N. 704. lli. 46 Fla.2d 575. A grand juror must be qualified to serve as such at the time he servesY A grand juror'squalification is determined and fixed at the time he is impaneled and takes the qualifying oath. 33. 223. 193 La. 1106. 42. 712.C.45 It has. Barkley.40 Time of qualification. 38. 373. 152 S. 212. La. 117 S. 37. Sandoval County. 827.Va. 39.---State v.W.Ct.Va. N.Va.. 27 Valid statutory provisions prescribing the qualifications of grand jurors must be observed. 32. 223.38 Also. 345. App. 93 W.---State v. 46 Fla.S. 101. D. it has been held that a statute making all provisions of law covering qualifications and disqualifications of petit jurors applicable to 27. W. 27. affirmed on rehearing 131 So. however. 35 So. 733. 704 S.E. 913. 129 So. 1285. 600. Austin.-U. 35. 93 W. 43.C. State. 1752. 331. 1732. 117 S. 9 Dis!. W.E. 151 S. PeIser.-Matter of Grand Jury. 192 So. State.S. of course. Tex. been held that. a statute providing that each grand juror shall possess certain stated qualifications and be in other respects a qualified juror is construed to refer to statutory requirements and common-law disqualifications which have not been merged in statutory provisions. Austin. App. 100 Fla. 750 P.Ed. 45. N. 86 L.-People v.2d 808.S.J.E. Research Note Constitutional prohibition on discrimination and fair cross section requirement as affecting validity of statutes regarding qualifications are treated supra § 17.c. a person is not qualified to serve as a grand juror where he is not a regular juror for the week during which the grand jury is drawn. 44. 43 and in the absence of record or other competent evidence on the question 44 the burden is on the challenging party to show disqualification. 155 S. where the state takes issue on defendant's plea in abatement.---State v.---State v. U. 385. Nev.E.E.S. 1777. 373---Peoples v.-Hicks v.Ct.-King v. 12 S. 423.Va. In General Statutory and constitutional provisions dealing with grand juror qualifications must be observed. 137.E.

138 So.-State v. if any.]. 173 La. U. 58. jury list is ient 37 qualificaording to some not qualified to is not a regular le grand jury is grand juror is )een substituted ~and Under the Jury Selection and Service Act. 19. 668. 86 L. 2 Leigh 739.S.S. Scannell. 95 So. W. 1018. lunty. la. 75 N. 11 Bush 277.Crim. 197. Youell. 531. 38A C. § 21. and his age must not exceed the maximum limit.Ed. 53 So.W. 602. apart from statute. 48. State.-Christopoulo v. Va. 459 U.54 but in the absence of such a provision it Business or Occupation IT the statute so provides. 704. 35 So. a minor is disqualified to serve as a grand juror. 1106.-Territory v.Ed. 53 § 22. 750. C. 51.-Beason v.J. 316 U. persons are not disqualified because of their particular occupations. N.Va. 788. 57. Soileau.. State. 679. Baker. incompetency of the grand jurors by affirmatively alleging their competency. 168 Ala. Under a statute so providing.Law 285. 45 It has.. 46.-State v. 167. 321.E. 37 Misc. 153. Austin. App.S. Willson. 16 N.Ed. a grand juror must be a citizen of the United States. Harding." .2d 808.S. Citizenship Ordinarily. 122 N. 7 Port. 86 L. State. 29 S. 349. 58 A 1012. 93 W. 712. motion denied 62 S. SO.51 The fact that a grand juror was a minor when his name was put on the jury list is immaterial if he was of age at the time he served.58 Under many statutes.S. Va. 28 U:. 62 S.. 384.Y. Under a statute so providing. Mo..42 Under some statutes.C. 117 S. grand jurors must not be over that age. 1752.-Commonwealth v. N.". La.i.C.-State v.R. 59. 56. Alexander. to serve as such luror's qualificathe time he is oath. 704. Va. a person is not qualified to serve on a federal grand jury if he is not at least 18 years old. White. 316 U. 178 Va.Ct.38A C. S.2d 575.CA § 1865(b). Ugon. 319-State v.C-State v. 63. 345.S. 122 N.-People v.I. as discussed infra § 30.48 Certain public officers or employees are barred from service. Miss.J. Perry. or at times have been. Ky.Ct. denying the ground of the At common law. 648.Ed.S. 145 CCA 98.-Waller v.57 § 23. .C 1018. 323.J. grand jurors are required to be citizens of the United States59 and of the state. 71 N.E. 384. 89 L. 223. 47. 48. 607. 636 S. N.61 Absence from the state on temporary business with no intention of changing his citizenship does not disqualify a grand juror. 28 U.2d 902.5[ --' . N. Hoffman.2d C.Ct.S. 55 Unless the statute so provides. Library References Grand Jury ~5. 62. a person engaged in a certain business or occupation may be disqualified to serve on a grand jury.52 If a maximum age limit is prescribed by constitutional or statutory provision.S.Ct.60 A statute defining a grand jury as a body of men returned from the "citizens of the county" has been held to mean that the grand jurors must be citizens of the United States who are of the county. Fla. 55. 739.~ '!" :'.:!·I. 500.53 Declaration of intention. 64.IIIIIIII!l"'_. 29 Va. La. 6 Mont. 52.E.54 Such statutes are not applicable to persons not within their terms.CA § 1865(b)(1).49 Under the Jury Selection and Service Act. grand jurors must be at least 21 years of age. Pritchett. 704.43 Ither competent rrden is on the cation. 54.62 Under the Jury Selection and Service Act.S.2d 1027.-Cotton v. 60.-State v. a person shall be deemed qualified to serve on a grand jury unless one of several enumerated disqualifications applies. 12 P. 34 Miss.S. 355 f~''''- _ _Ulr. u.-Commonwealth v. .ecutor who has r the qualificalIed to serve as A grand juror must not be a minor. Mont. disqualified by statute from serVing on a grand jury. 834. 1289. affirmed on I. 35 La.CA § 1865(b)(I).-State v. Commonwealth. an alien is disqualified to serve as a grand juror. Library References Grand Jury ~5.I. prescribed by constitutional or statutory provisions. 1285. State. the state takes ent.Y.S.:"" ". in the case of a federal grand jury.C. 46 GRAND JURIES § 23 ications and disto all jurors 34 l as making all hich are applicalualification of a It has been held that all persons 21 years old or older are presumptively eligible for grand jury duty. certiorari denied 103 S. 316 U. I.J. 46 Va.-State v. 53. 294. Age . 28 U. aliens who have declared their intention to become citizens of the United States are competent to serve as grand jurors.E. 373. rehearing denied 62 S.'1. 74 L. Ala.-State v.47 Jury Selection and Service Act.-Mason v. 1732. Perry. 1183.50 It seems that. a person is not qualified to serve on a federal grand jury if he is not a citizen of the United States. 56 A butcher is not disqualified from serving on a grand jury merely because of his occupation. Ala. it must support such allegation by evidence. but not otherwise. 49. 1V. certiorari denied Waller v. 29 S.349. 230 F. 1777.. 92.Ann. 85 Fla. 1100. Persons engaged in certain businesses or occupations are. an alien who has declared his intention to become a citizen of the United States is competent to serve as a grand juror. 16 S.Y. 61. 750 P. as to qualificaers of a grand cribed by law.Va.

Commonwealth. 174. 76. reheari 90.65 § 24. Ind. Fla.2d 144.E. Freeholder or Housepolder Being a freeholder or a householder.CA § 1865(b)(5). Hefner.-U. 174. N.2d 431. 38A C.-State v.2d 144.).79 § 26.-People v. 89. v. rehearing 357 N. 265 Ind. Ala. Butier. 3%. a grand juror need not be a householder or a freeholder. 91. persons convicted of certain crimes or 0fi'enses.2d 731. 842 F.-State v. ~ 87. Library References Grand Jury e->5.E. is a necessary qualification for grand jury service when. 374 So.75 or a freeholder and a householder.-State v. 313. 145 La. a crime or offense may be disqualified to serve as a grand juror. 72. 1091. Tenn.S. U. 384. 868. .~ ii ':111 Insane persons and idiots are incompetent to act as grand jurors under the provisions of some stat- 65. 338 S.76 or either a freeholder or a householder. a person may be disqualified to serve as a grand juror by reason of a mental or physical infirmity. 305 S. or both. OhiO-Shoemaker v. 10 Yerg. 511.E. 69•.S. 90 So. a crime punishable by imprisonment for more than one year and his civil rights have not been restored. that they have experience of making important and binding practical decisions of everyday living. 164 La.E. 188 La. 1018. People.E.). or expunction of the conviction. La.-Musick v. 83 So.S.-Palmer v. Bryant. State. 363. 674. Ari 83.2d 269. m. 80.-Herring v. A person charged with.-SI 88. 527.69 If the person is so charged or convicted. 67.§ 23 GRAND JURIES § 25. 114 So. 38A has been held that. 150 N. 70. it has generally been held that.-In! 356 1111111.M. 77 In the absence of provision to the contrary. Tenn. State. Hefner. 917. amnesty. Purpose Purposes behind statutory requirement that grand juror be house· holder are that grand jurors be actual members of community served by grand jury. or has been convicted in a state or federal court of record of. 711. Library References Grand Jury e->5. or Pending Prosecution for. 85. Jewett. 60. v.488 U.S. Under the Jury Selection and Service Act. 102 LEd. Ga. an affirmative act recognized in law must take place to reStore his civil rights in order for him to be eligible. 17 Wis. 9 1236.! Conviction of. S.67 or charged with any ofi'ense. Source I The s circumstl sanction N. utes.-State v. 6 Gratt. 195 La.-Wysor v. where citizenship is required. 395.2d 731.e. 527. disqu: partic Granc dice. 197 Ind. Tenn. N. a declaration of intention is insufficient to qualify one as a grand juror. 10 Yerg. Richey. State. 597State v. 265 Ind.2d 245. Library References Grand Jury e->5. it is a necessary qualification for service that a grand juror be a freeholder 74 or a householder.I Infamous crime Person convicted of numerous lesser crimes but who has not been convicted of infamous crime is not disqua1ified. 28 82. Md. 396. 102 LEd. 196 So. 386. a person is not qualified to serve on a federal grand jury if he has a charge pending against him for the commission of. 28 U. 842 F.-State v.68 are disqualified. Gunter~ 177 So. Crime Ull perS{ jury physi vice. Ari reman 1023.-P 84. 29 S. The authorities leave it somewhat doubtful whether it was necessary in England at common law for grand jurors to be freeholders.e. it is so provided by a statute in force at the time. 65 Tenn. 255 Ga.E. 251 Ga. 69 Ind. 1 c At common law one convicted of crime was disqualified to serve as a grand juror. 66.Y.-Wills v. 511. 18 Tenn. the person is ineligible even if he has the right to vote and to hold office under state law. 71. or convicted of.71 from s< or prejl Re SUI Lit ( 'I Un~ Inf"mnity Under some statutes. Ari :i Timing Statute prohibiting convicted felons from serving as grand jurors was not violated as result of fact that one member of grand jury was convicted of a felony after the im!ictments had been returned for an offense committed prior to the indictments where the juror had not been charged with a crime or arrested at time of his service as a grand juror. 338 S. 47 Va.-Stevens v. U. Va. 1036. La. State. 10\1 Neb. 625.111111 J. N. Deason. Or.n. State. 286.488 U. 73.S. Ind. and in force at the time.E.66 Under some statutes.sa this eJ . Ind. Perry. 78. State. and only when.78 a statute fixing a freehold qualification does not confine the freehold interest to lands of the county. 268. 370. CA4(Va. 73 but under a statute so providing. Phillips. 72 In the United States. Cole. Wis. 711. appeal after remand Lumpkin v. 868.S.S. 319-state v. 40 ill.-Owens v.2d 784.2d 727. 527.S.J. 12 Ohio 43. 171. 122 N.-U. 68. State ( and 6~ U. certiorari denied 109 s. in the absence of a statute requiring it. 255 Ga. 545. 354 N. and that they be capable of making important decisions independent of family or relatives or others. State. 74.S. 8 § 27. 149 La. 314-state v. State. SI.C 86. 75. Bryant. 6 Wend. AlaskaGa.-State v. certiorari denied 109 s.2d 102.-C1ark v. Miss. 264. Ala. Smith. CA4(Va. Must be convicted in court of same state Ga. 77. 6 Baxt.-State v.70 In the absence of an affirmative act such as pardon.n. 79.

Ga. 558. 408 A2d 313. 166 A 45. State.E.-SChwartz v.. 84.95 Jury Selection and Service Act.C. and that interest in a particular prosecution other than a direct pecuniary interest will not disqualify a grand juror92 or be a ground of objection to an indictment in the finding of which he participates. Ariz. 90. Ta. Richardson. it is held or stated that a statute which defines the cases in which a grand juror is incompetent and must not take part also limits such cases.77 L.c. certiorari denied Adam v. Research Note General requirement that grand jury be impartial is considered supra § 11. 235.useholder.R. Alaska-U.Cr. Ala.App. of Justice. Caldwell. Iowa-State v. 164 Md. Oxendine. Alaska-U.S. 88.~. State. 1016. by reason of mental or physical infirmity. 2444. 498. 83. Caldwell.-Coblentz v. State.E. State. 625. Under the Jury Selection and Service Act. it has been asserted generally 80. Provision for automatic exclusion a.-Khaalis v. 10 So.C. Ariz. will so disqualify a member of a grand jury as to vitiate an indictment returned.S. it is so at doubtful at common y been held uiring it. Walla.2d 1081. or'Prejudice a.88 that no interest. 141 Ariz. D. 100 Fla. Or. 91.S. 93. 89. Emery. 243 Ala.-Creamer v. State.-In re Hensley. State. 15. State. 396. Alaska-U. 224 N. Carlson..~A C.Ct. rehearing 357 N. 243 Ala. 373.86 This determination is largely committed to the discretion of the trial court.C. 150 Ga. Ariz. a person is not qualified to serve on a federal grand jury if he is incapable. 60. Functions of grand jury The basic theory of functions of a grand jury does not reqnire that grand jurors should be impartial and unbiased. 128 Ariz. 19. t7. 642 P. 70-:-Staton v. 85. 8 Alaska 117. 248 S. 62 L. Not a legal qualification (1) Freedom from personal bias is not a legal qualification for a grand juror. 82.E. Gretzler. 357 .77 In the IS a statute confine the Interest. Particular matters c. 35 N. 10 So. 557 P. 676. 147 S.S.W.84 Indeed.E. 827.-State v. 362 S. except as defined by statute. 126 Ariz.J.App. 147.2d 78l.2d 822.82 Grand jurors may be challenged for bias or prejudice. 1268. Not ground for challenge U.App..2d 636.La.2d 508. 620. 463 U. GRAND JURIES § 27 that defendant in a criminal prosecution is entitled to the absolute impartiality of the grand jurors who pass on the indictment.2d 838.2d 1327. N. 330.8 Alaska 117. D.E.S. Tex.App. 620.-State v. 1059. Raulie. v. 354 N. 32. 141 Tex.Ct. 100 Fla. In general b. 356. 494 F. N.S. Caldwell. 278 S.-Lake v. 373. 28 U. N. 12l.2d 432.Ed. 726. 1092.83 and there are some statutory provisions to this effect.2d 822. 129 So. Ga.711.CA § 1865(b)(4). U. by reason of interest.2d 1.-State v. 184 Ga. a person shall be disqualified from serving as a grand juror in a particular case if he is biased or prejudiced.C. Ind. f9 Under some statutes or rules. State. 146 S. 16 Neb. D. 93 Tex. 27 Ariz.2d 212. In and For Pima County. 493. 87. a person shall be disqualified from serving as a grand juror in a particular case if he is biased or prejudiced. 81.s9 that prejudice90 or bias9l does not disqualify a grand juror or render him incompetent.C. 211. 11 F.-:-State v. 265 Ind.W.39 Or.S.S.C.S.E.-Stevens v.Cr. Salazar. Lynch. (2) Freedom from personal bias is not one of initial legal qualifications for grand juror. 92. 550 S. 38A C. is a necessary when. 27 Ariz. 135 Ariz. a r or a freeding. 88 AL. 557 P. to act in a particular case may be ineffective when it is made too late under the governing statute. U. appeal after remand 688 P.-:-State v. 7 Oarke 287. 86.D.-Sheppard v.-:-Sheppard v.J. Bias.85 The ultimate question is whether the juror can base his decision solely on the evidence presented to him and the law. State.S. Dept. a person may be excluded from federal grand jury Tenn. 135.Ct.S.S.7& ir. S. Ala. v.2d 175.-State v.2d 298. State. sl § 27.Pa. 265 Ind. 62 P.-Stilte v.94 or when the juror did not vote on the indictment. 498. U. 789. affirmed on rehearing 131 So. 549-state v. Neb. U. 3%.-Rippy v. Salazar.-Sparks v. 121. 57 N.-U.D. 303 N. 290 P.93 An objection that a grand juror is incompetent. 458. 499 N. 971. 95. utes. 612 P. Fla.W. 42.2d 552. In General Under some statutes or rules. 627 P.2d 1023. 18. certiorari denied 103 S.-State v. and in lification for )lder 74 or a .M.W. 7 Iowa 287.Supp. State. juror be housemununity serd ~ important mill they be capable y or relatives Source of bias The state of mind referred to in the statute must arise from circumstances occurring outside or something heard outside without sanction of oa!h. Library References Grand Jury e=>5. 100 S. 77 L.W.S.S. Gillick. Ind.2d 200. appeal after remand State v. 8 Alaska 117.444 U. 20 N.SO Under the Jury Selection and Service Act.-Jones v. 94.2d 738. 258 S.Ed2d 1452. Md. 149 S.-Patrick v.2d 552. 461 U. 356. 131 Ariz.2d 245.S7 On the other hand. to render satisfactory jury service. 886. Superior Court of State of Ariz..E. v.S. 1236. rehearing denied 104 S.M.2d 727..Ed. 583 and 659 P.

App. S. 1174. v. Fla. 235.App.2d 401.C.2d 123. certiorari denied 110 S. affirmed 70 F. Alaska-U.1 or has unsuccessfully opposed accused as a candidate for public office. 875.S. 470. 8 Alaska 117. affirmed Ex parte Kuenzel. Alaska-U. 443 So. State.W. 764-State v. where assistant district attorney did not participate in presentation of cases and there was no discussion between assistant district attorney and wife regarding any cause pending before grand jury. N.3d 340.-State v. Employment as jailer Ala.2d 552. 493 U. 286. 108 P.-Kuenzel v. Partner (1) District attorney's law partner. (2) Assistant district attorney's law partner was competent. Nev. Me. 98. 107 L. 264. 8 Mass. Caldwell. 590 P.-State v. 129 P.S.-Cruce v. 8 Alaska 117.I6 or served on a prior grand jury that indicted accused for a different crime. 1881.App. 519. 32 Ohio c. 368.3 The same rule has been applied where the person is related to or has some relationship with the 96. 3 Nev. App. 442 So. State.. Fla.--Cardwell v. App. 87 Fla.10 or who has strong feelings about crimes. 278 S. 360 N.App.8 or defendant. 202 Conn.W. 97. 7.2d 85. 166 N. 22 Ala. State. 92 N. 8 Alaska 117. 161 S. 819 S.98 such as the fact that a person has originated a complaint against the person accused of crime. Alaska-U.2d 531. who possessed no disqualifying knowledge when grand jury was convened.-Matter of Grand Jury Sandoval County.2d 200. Cr. v. 273 N. State. Caldwell. Watkins.-People v. was competent to serve as member of grand jury indicting defendant. Ala..I5 It has been held that a person may serve as a grand juror even if he was present at the crime scene.S. it would not constitute a reason for his not serving as a grand juror. 620. 666.-Eddings v.-Fooshee v.2d 373. 100 So.4 a prosecutor. 584. Oxendine.-Rogers v. bias. State. 557 P. State. v. 317. 590 P.. Ala. 446.6 a witness. 93 So. 86 Mich. 9 The same rule has been applied to a person who has evinced a desire and purpose to enforce the law against a particular kind of crime. 385.S. and. 8 Alaska 117.M. 80 S. 409. 886.S.S. 8 Alaska 117. 150.. Iowa-State v.2d 464.116 L. though assistant district attorney was present 358 . 499 N. Edmond.-State v.Ed. 1128.Ed.2d 474. 766. denial of habeas corpus affirmed Ex parte Rogers.S. 2. 502 U. 11.-Herman v. Alaska-U. Pitt. 577 So. 27 Ariz. 1.99 or is a witness for the prosecution. Husband of defendant's wife's sister Husband of defendant's wife's sister is not brother-in-law to defendant. Millain.-Rice v. who was also part-time employee of district attorney's office. 544 So. Watkins.97 various matters concerning interest.E.Supp. habeas corpus denied 864 ESupp.. 236. or prejudice do not necessarily disqualify a person from grand jury service. 774 S. State. v.J.C!.M.2d 555.459 U. 115 So. Alaska-U.App. Ark. was competent to serve as member of grand jury. 14.App.l1 or has subscribed funds for the purpose of legitimately suppressing a particular violation of law. 554. 750 P.E. 16. 8 Alaska 117. Conn. Tex. 15.2d 176. 653 P. 8 Alaska 117.E. 406. 99. State. 268.A. 303 N. Caldwell.-State v.M. certiorari dismissed 402 So. Caldwell.. Haberski.S. Williams..74 L.A.I7 or is aware of accused's service by the court on the ground that such person may be unable to render impartial jury service. 4. 204 Ark.-People v. 1060.W. 365.App. Cr. 10. N.W. Nev. Caldwell.c.C!.S. Caldwell.S. Ala. Mich. Ala.Cr. or prejudice do not necessarily disqualify a person from grand jury service.. even if he were. 3 Okl. v. 208 Ala. State. Williams. 385. Spouse Wife of assistant district attorney. Okl..App. affirmed 929 E2d 623.96 h. Salazar. App.2 or has formed and expressed an opinion as to the prisoner's guilt.2d 169. App. 396 So.2d 222.-State v.S.C. at grand jury proceedings. 276.2d 987.App.Ed. Cr.M. Ill. 15 Ohio App. 92 N. certiorari denied 112 S. State. 13. I3 A grand juror need not be free from all previous knowledge of the case 14 or even of knowledge of the precise circumstances of the case. § 1866(c)(2). Aillon.S. 374. certiorari denied 116 S. 8. W.7 a jury commissioner.-In re Tucker. Particular Matters It has been held that various matters concerning interest. Ohio-Zell v. v. Looney. Sisk v.C.C!. injured person. Ariz. 3. such as a relationship with a person involved in the case. habeas corpus denied 744 F. N. 28 U.C.2d 169.§ 27 GRAND JURIES 38A C. certiorari denied 103 S. 9. v.-Sparks v. 6. in the absence of statutory provision to the contrary. 35 Nev. bias. 135 L. Mass.2d 1308. Cr.Ed.-Ervin v.E. 577 So.2d 738. Knows injured person Alaska-Nix v.2d 782.2d 197.-State v. rehearing denied. State. 17.5 an investigator. 154. Ind. Caldwell.-State v.-Sledge v. N. 449 A.. 12. 242.2d 247. Cr. Alaska-U.2d 1093. State. 145 N.C!. State. 106 N. 470. 12 The mere fact that a person is a member of an association organized for the purpose of aiding the public officers in the maintenance of law and order and the suppression of crime does not disqualify such person as a grand juror.2d 1019. It has been held that. Alaska-U.-State v. 823. 984.2d 520. 314 Ill.2d 610.M. 521 A. State.2d 533.

4 Old.2d 784. 24. 556. 359 . 248 S.-Cowart v.-Franzi v. 671. 118 Tex. the consideration of the depends on statutory provisions. 21. 47. 477.E. 54 So. 661.29 § 28.S. <\pp.S. 100 N. and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form. 636. 750 P. Maddox. 39 S.2d 822. 189 La.. Ariz. 374. or when he is prosecutor.620.C!. Greenland. 572. 374 So. investigator. N. 32.c. App.M. Iowa-State v. N.34 26. 679 P. 7 Iowa 287. 243 Ala.-U.9 . 580. 25. State.J. 25. 34 S. 368. 34.-State v.-Moss v. that relationship of a grand juror.E. Gillick. 356. 556. 250 Ga. from illiteracy or insufficient knowledge of the language in which the proceedings are conducted to obtain a clear understanding of what is said and done.-State v. State. Iowa-State v. State.~tate v. ability to speak. the term ''witness'' means a person called to give evidence regarding matters under inquiry by the grand jury.M.. One who lacks a sufficient knowledge of the language in which the proceedings before the grand jury are conducted to obtain a clear understanding of what is said and done is not.2D It would seem.38A C. certiorari denied 0. GRAND JURIES § 29 prosecutor or complainant on any charge against accused. by blood or marriage to the prosecutor is a ground for challenge. 942.2d 464. 32 Under the Jury Selection and Service Act. U.-Herring v. 356.W.S. rehearing denied. 27.W.2d 485. write. 31 F.2d 828. under the statutes.. Harris. Prior Service as Juror ing that a grand juror connected by blood or marriage with the person charged shall not be present period Whether prior service in the same capacity during a certain renders a person ineligible to serve as a grand juror at. 679 P. 30. Ala. 382. 125 Iowa 141. rmed 70 F. his person or property.19 There are some authorities which hold that the fact that a grand juror has formed or expressed an opinion as to the guilt or innocence of accused is a sufficient ground of challenge. § 1865(b)(3). Hudgens. 341. 179 So. under some statutes. Ala.186 Iowa 627.M.-U. v. affirmed 929 Mich. 28 U.27 Effect will be accorded applicable statutes renand a statute declares it a ground of challenge that a person summoned to serve as a grand juror is the dering persons ineligible to serve as grand jurors 18.he suppression rson as a grand Knowledge of Language. State.M. Provision for Automatic Exclusion Various statutes or rules preclude persons with specified types of interests in a case from serving as grand jurors in such case.0 a person who enforce the law !. La.-Staton v. c.Va.· Tex. 12N. 56 S. or take part in. 139 Ariz. § 1865(b)(2).. 19. a person is not disqualified because he can read and write only a few words.21 c. Superior Court of Arizona In and For Pima County. 171 Ala. Ariz.. and write the English language is sometimes made a necessary qualification of grand jurors.C. 139 Ariz. read. Library References Grand Jury e->5.2d 1043. 636. 128. § 29.M. 297 S. 33 or is unable to speak the English language.-Ex parte Harris. 22 Under a statute providing that the -validity of a grand jury may be challenged on the ground that a member thereof was a witness against the person indicted. 122. 10 So.Cr. Tenn..A. 93 Tex. 498.3D By statute.W.-Sheppard v. 470.2d 828. Old. v.2d 1043. denial of habeas 13. Boyd. 69 Tenn. 566 P. 28 Previous formation and expression of an unqualified opinion of guilt of accused is sometimes expressly made a ground of challenge by statute. 672.2d 459.-State v. Literacy Disqualification to serve as a grand juror may arise.C. 90 N. om all previous f knowledge of case.-State v.C.S. 381.Cr.S. Iowa-State v.App. certiorari denied 567 P. 580.S. 90 N.18 An examining magistrate or commissioner is not disqualified to act as a grand juror on cases sent on by himself.Cr. State.25 Judicial recognition is accorded statutes provid. reputation in the community. U.S. 154. Hogervorst. :her-in-law to defena reason for his not Some statutes or rules provide that a witness cannot be a grand juror. 566 P. 29. c. certiorari denied 567 P.26 or that he shall not participate in the Library References investigation of a public offense committed against Grand Jury e->5. Hogervorst.M.. 28 U.ID or who has has subscribed 'f suppressing a lere fact that a n organized for officers in the . Superior Court of Arizona In and For Pima County. 23. 22. Tex.W. 38A C. 33.2d 883. a person is not qualified to serve on a federal grand jury if he is unable to read.M. 90 N. 92 N.Cal.15 It has s a grand juror me scene.c. 90 N. Ground of challenge 'ari denied 103 S. 12 Sawy. competent to serve as a grand juror. according to some of the authorities. Ga.22 The fact that the grand jury which indicts a person for perjury and false swearing was the same grand jury which heard the allegedly perjurious statement does not violate such a statute or rule.A.6 a ~fendant. 1 Lea 671. 1128. Miss. App.J.C.2d 485.M.I6 or ldicted accused ·e of accused's ict attorney did not was no discussion ling any cause pend- certiorari dismissed ).31 In the absence of a statute so providing. Belvin. 7 Oarke 287.3d 340. 31. S. 172 N. d 169. 111 P. 28. charge. 57. 20. 896. App. 5.-Wilson v.470.-Franzi v. 46 F. Ala. State. Benson.24 and the fact that the grand jury has previously returned other indictments against a person does not render the grand jurors witnesses against him.S.

38A C. 115 Fla. 127 S.S. all elected officers and officials are incompetent to serve as grand jurors during their terms ofoffice.-Narramore v. Under the Jury Selection and Service Act. Quijada. 252.-Harper v. Public officer "Public officer" means a person who is either elected to public office or directly appointed by a person elected to public office. 72 Minn.-Hayes v.App. 150 A 249.Ct. 712. 1752.-State v. and public officers actively engaged in the performance of official duties. 351 S. 254.Ct. certiorari denied 104 S. Youell. State.2d 819. 155 S. Qualification as Elector or Voter Public Officers or Employees When so required by a constitutional or statutory provi. Miss. where registration is considered only as evidence of existence of qualification.Ed. 87 L. S.CA § 1863(b)(6). 147.Ed. Va. 97 Fla.2d 661.M. 43.465 U. 1137.111 N. 801-Lindsay v. App. when applicable.. 226 S.44 35. U.W. 1106. 124.Ed. such persons are not rendered incompetent by statutes which merely forbid their selection by the officers charged with the duty of selecting grand jurors. who have served in that capacity within a certain period.3d 1047.App. 178 Miss.Ct. Elective office Term "elective office. 1289. State. a person need not have voted or have his name on the poll books to be eligible.E. 234 S. 181 Ga.48 Under a statute requiring grand jurors to be electors. Cal. 294. Tex. Ga.Ed. 1042. 451. 156 So. 911. 622. 11 F.-State v. Or. A person may serve as a grand juror even if he has previously served as a petit juror. 1416.2d 742. certiorari denied Waller v. 323 S.C. 505. Iowa--State v. the following persons are barred from federal grand jury service: members in active service in the armed forces. Del. Or.2d 160. 909. 45.-People v. 385. 28 U. N. 488.S. 1732. Under some constitutional or statutory provisions. 70 L.E. State. 28 U.35 However. 842.Ct. 36.-State v. denial of habeas corpus affirmed 26 F. sion. 75 N. 97 N. 49. Misc. 154 C.E. 86 L. State. Fla. is an office filled by citizens registered to vote and voting at an election. Library References Grand Jury e->5. 8 N. Chama Land & Cattle Co.S.2d 323.S.. and not as a qualification. certiorari denied 115 S. N." within statute providing that any person who holds any elective office in state or local government is incompetent to serve as a grand juror.45 § 31. 648. 1 Terry 77. 37. to vote.2d 1081. 131 L. 1093. 39. Minn. certiorari granted 354 S.W.. 262. 160 Ga. not all qualified voters are eligible as grand jurors. 62 S. rehearing and rehearing en banc denied 36 F. a grand juror must possess the qualifications of a voter or elector. 476.Ed.-Waller v. State. certiorari denied' 804 P. 137 Va.37 or in the absence of statute.-State v.Ct.2d 697. 79 L.E. 173 So.E. 77.-Ingram v. 316 U. rehearing denied 106 S. 473 U.2d 643.2d 1097. Cooley. it is essential only that they should have the qualifications of an elector. Gortmaker. members of fire or police departments.Ct. 28 Or.2d 801.-Webb v.39 § 30. C. 38.41 they are not applicable to other public officers 42 or to persons wllo are not public officers. Tex. 833.E. 42.E. 689. 50 nor need he still live in the precinct where he is Ga.§ 29 GRAND JURIES Jury Selection and Service Act. 668 P.J.Cr.36 Under a statute permitting service.46 Some constitutional or statutory provisions make it essential that a grand juror shall have the qualifications of a voter or elector.CAFla.S. 1444. 568.Ct. 1145. 212. 122 So. 3538.Ct. 41. 41 P. Commonwealth.J. 16 S. 234 S. State. 50.W. 5 A2d 495. Lyons.3d 96.J. 927. 46.S. 155. 805 P. 86 L.E.S. 392.Cr. State. 1285.E. 40.Ed.38 prior service as a juror within a prescribed period is not a disqualification.-State v. In the absence of statutory enactment to the contrary. 138 GaApp.-State v. the fact that a juror is a public officer does not disqualify _him from serving as a grand juror.Ed. 316 U. Rector.. Ga. 253 Ga.2d 86. 47. Library References Grand Jury e->5. 86 L. 130 L. 97 P. 295 Or. 111 N. State. be accorded effect.M. 129. Ruffu.2d 606.S. 40 Del. State.W.-State v.-Johnson v. 90 Tex. Commonwealtb. 243.-Robinson v. rehearing denied 115 S. 271 U. 360 .S. 34 Ga. 909.-Cawthon v.-Long v. 178 Va. 252.47 However. 20. rehearing denied 62 S. 1. The holding of a public office does not in the absence of statute disqualify a person as a grand juror.Ct. 1777. Harris.Ed. 729. Va. 48. 90 Tex. U. certiorari denied 105 S.M. 317. 292 answers to certified questions conformed to 128 S. 666.40 While statutes declaring specified public officers incompetent to serve as grand jurors during their terms of office will.S. 679.S. 87 L. certiorari denied 46 S.S. 784. 675. Brown. 701. 316 U.CA § 1869(i).C.-Harper v. 473 U.2d 808. 120 S.43 Under some statutes.2d 354. 44. a grand juror need not have the qualifications of a voter or elector. 158 S.Ed. 1066.49 nor need he be a registered voter. 122 Iowa 78. Ga. motion denied 62 S.

361 .S. it is said that disqualification of a grand juror resulting from his departure permanently from the state exists only from the time it becomes known to the COurt. 1016.--state v.c. er atutory provi· .-U.2d 276.-Territory v. C.262.M.A.49 ~re registraexistence of n.-Howard v. Library References Whether assessment for. Under the Jury Selection and Service Act.61 Some statutes require grand jurors to be residents of the county for a particular lengt~ of time.--state v. 30 F. N. under the statutes. 66. 55 Neither religious beliefs nor church adhesion56 nor membership in. requiring grand jurors to be taxpayers. or religious.S.I.. IDel. 316 U. 92 N. 38A C. 385.. under some statutes. 67. 57.-U. La. 262. App. 70 taxable persons. 66 § 34. rehear- Grand Jury €=>5. Gradwell.Va. 104 N. 590 P. v. Eagan.--state v. 185 La. 185 La. social. Or. 68. 62 P. 52. a person as a grand juror depends on statutory provisions. 171 So. Conn. 86 L. grand jurors must be residents of the state for a particular length of time preceding their service. S. political. 453. 197.C. 08.S. 294.2d 1097.62 Absence on temporary business with no intention of abandoning his residence does not disqualify a grand juror. 608.--state v. 704 S. 119 La.Ed. 608. App.S.--state v. 805 P.50 where he is A grand jury should be selected with a view to the qualifications prescribed by law. 437. v.E. benevolent.M.. Fla. 323. 805 P. Library References tory proviIe qualifica- Grand Jury €=>5. Wis. 55.55 It is not sufficient that he was qualified when selected. State. 71. Wimby. 69 Effect will be accorded to statutes. La.. or denomination. La. 86 J. 1 Pinn. 57.W.--state v. 62.64 He is not disqualified because he moves out of the county after his impaneling. Tolett... the eral grand ice in the Ice departIged in the At common law.--state v..:.CA § 1865(b)(1). Watkins.S. 252. 30 A 467.c. 19. a political party. 8. C. 9 Dist. State. 984. and the same is true as to the effect of his religious beliefs. Chama Land & Cattle Co.111 N. 212.J. 10 S. Jewett. 111 N. 95. 6 Mont. grand jurors need not be taxpayers. 10 S. 95 So. 65. 317.8.M. Library References Grand Jury €=>5. a person must have the required residence and. without inquiry whether the individuals selected do or do not belong to any particular society. sect. 174 La.58 Under some statutes.48 Un'be electors. 60. 679.J. 77. 553. N.--state v. 59. certiorari denied aring denied 106 )f habeas corpus n banc denied 36 1. Bibbs.59 In the absence of statutory requirement. 2.S. 95 So. U. Tex. Carlson.C.57 affects the qualifications of a grand juror. Morris. 85 Fla. 314. registered. D. ~ the qualifit have voted be eligible. Rife. of a voter or Religious or Political Beliefs and Alliances The qualifications of a grand juror are not affected by his connection or lack of connection with a political or religious organization.M. 51 Under some constitutional provisions..y.-U. C. 178 Va. S. § 33. 6 S. 243. 35 Fla. if he' removed to another county before the grand jury was impaneled. Rector. N.60 The same qualification is required by many statuteS.S.C. isions make i the qualifiver. a grand juror is required to be a resident of the county. U. 111 M. 63.1. 61.--state v. certiorari denied 804 P. GRAND JURIES § 34 e Act. 86 L. App.C. 30 F.E. he must be a resident for a prescribed length of time preceding the service. v. Morris.Mo. Wilcox. 64. Mont. Eagan. 51. 39 Or. 668. Ham\in. is necessary to qualify.C. 78.63 A grand juror's qualification as to residence must be determined by his status at the time of his service. 437. U. persons not in default in the ed to public office [ice.S. 453. 171 So.People v. State. 847.2d 575. or payment of.E.2d 86. 1037. 596.M. taxes.Ed. La. 3 Wend. 197. N.S. 227 F.-Lask v. however. 28 U. 139. if otherwise qualified. 668. a grand juror must be a legally 52 registered elector. Wilcox.. 847. 43 So. 47 Conn.54 § 32. 18 R.R. 1732.53 A requirement that jurors shall be selected from the class of voters called property voters has been held not to require that one having the qualifications of a property voter at the time of his selection continue to possess them after that time.E. A person who is not a resident of the state is.1. a person is not qualified to serve on a federal grand jury if he has not resided for a period of one year within the federal judicial district.2d 169..--state v. Fla.C.--state v. or affiliation with. 53. 69.67 Jury Selection and Service Act. 1037..C. 104 N. Harding. 71 .Mo. 12 P. N. 141 So.2d 1081..S. 155 S. 58. 56.-Cotton v.-Cotton v. not all rors. 712. & W. .--state v.66 However.2d 86. 470. in force at the time.S. Taxpayer Residence To be qualified as a grand juror. 158 S.. incompetent as a grand juror. 70. 750. or liability to taxation. U.C. 54. 192 S. R. 231. to vote. preceding their service. 77.C.--state v.

79.3d 1047.C!.-State v. IlL-People v.S.e. Smalls. Library References Grand Jury e->6.-People v. Superior Court of Nevada County. certiorari denied 105 S. 1018. 283 U. 87 L.S. 115 La.-People v. 75 A grand juror need not have paid his taxes to qualify under a constitutional provision requiring a juror to be a qualified elector. 20. Caldwell. 367. 87 L.J.E. 555.C. N. 253 Ga. 131 L. 362 . 83. U.Ed. Library References Grand Jury e->6. 622. 115 S. Sbearer. 26 F.2d 152. N.e. Iowa-State v. CaL-Kitts v. 3381ll. Willson. denial of habeas corpus affirmed Ingram v. 911. 827. 75 L.S. 163 Mass. Research Note Constitutional prohibition on discrimination and fair cross section requirement as affecting constitutionality of exemption are treated supra § 17. 1137..E. Shearer.S.E. 161 S. certiorari denied 51 S. La. 192 N.-People v.e. Thomas.3d 1047.-State v.88 The court has no right. 227. 896. La. denial of habeas corpus affirmed Ingram v.83 but merely extend to them a privilege or favor 84 which they may claim85 or waive. rehearing denied 36 F.-State v.-People v. v.5 e.Ed.E. 75 L.S.AMicb.Ed.Ed.-People v. 44 F. 7 N.-Ingram v.73 So. 130 L. 367.C!.2d 80l. 1465. 140 Iowa 655.C.S.e. 786.L.C!. 88. 159 S. S. 7 N.A. 911.e.S. 90 P.2d 1097.S. 697. 367. 1444. 384.St Such statutory provisions are for the benefit of the persons exempted82 and do not have the effect 72. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Guide following Preface. 1ll.Y. Zant.2d 697. 69. Hayden. 1441-U.Or. e. 331. 7 N. Ueber. 977.2d 661.-State v. 69. 89. certiorari denied 51 S.2d 323. certiorari denied 105 S. 473 U. Coffman. 85.E.C!. 13 S.S. 927.E. N. 3381ll. 859.3d 96. 197.S.-People v. N. rehearing denied 106 S. 169 Misc.-Davis v. 473 U.2d 1097. Shearer. as a general rule. State. SO. Coffman. 253 Ga. State. selecting jurors and not to apply to the qualifications of a grand juror.Y. N.77 such as public officers.S. 657. e. 122 N.S. 86 Hence.N. 367.2d 152. Coffman. 166. 1137. 69.S. 72 or persons assessed on the last assessment roll of the county.S. 227.E. 136 F. 170 N. 323 S. Coffman.90 § 36. 75. rehearing denied 115 S. 154.-State v. Mass. 115 S. U. N. 170 N. Statutory provisions are controlling in respect of exemption from service on grand juries by persons of designated classes.Y. 78. Alaska-U.Y.Y.Ed. 473 U. Ohio-Koch v. 32 Ohio St. e. 76. 3538. 393.C!.Y. 323 S. 473 U. S. 69. 622.79 or have served as jurors within a specified time.-People v. 131 L.2d 801. 3381ll. certiorari denied Ingram v. 87. 81.7S and persons who have reached a specified age limit.E. 169 Misc. 40 So. 1ll.Y. Shearer. Mitchell. the fact that a grand juror may be exempt is no ground for challenge. where a qualified elector is a registered elector and payment of taxes is made a condition only for voting and not for registration. 49 F. 846. In General A statutory exemption from service on a grand jury is a privilege which a prospective juror may claim or waive. 26 F. 227..S7 or for attacking an indictment.--Gridley v.Ed.Y. 84. 1ll. 40 N. 169 Misc. 357 Ill. 170 N.-People v. State. when applicable.e. 170 N. 1091. 169 Misc.Y. Smith.C.C!. 169 Misc.e.Ed.2d 152. 145 La. U. Shearer. volunteer safety personnel shall be excused from jury service upon individual request.2d 152. 338 1ll. Ga.-Commonwealth v. rehearing denied 115 S. Pell. S.2d 152. 87 L..2d 716. Hopkins. 74.-People v.§ 34 GRAND JURIES 38A C.3d 96. 264.Ed. 86. Thomas. 73.C!. 8 Alaska 117. so or are engaged in specified occupations. 82.74 Some statutes providing that jurors shall be selected from persons assessed on the assessment roll are deemed to relate merely to the mode of C. 69. 423. Perry. 90.W. be accorded effect.Ed. 353.C!. in the absence of a statute exempting such persons.E. § 35. 227. 20.2d 323. 83 So. Attorney Ga.. 283 U. 87 L.Ed. 351.S9 The fact that a person has a fixed scrupulous or religious objection to the discharge of the duties of a grand juror has been held not to be a sufficient ground for exempting him from service. Ill.Y.S.E. on its own motion. EXEMPTIONS of absolutely disqualifying them. U. 927. 453.2d 269. Zant. a statute removing in certain cases the disqualification of grand jurors based on failure to pay taxes for the preceding year will.C!. v. 29 S.. rehearing denied 106 S. 130 L. to discharge prospective grand jurors as disqualified because they are exempt. Federal Grand Jury In the case of federal grand juries.2d. 77. 1444.C!. rehearing denied 36 F. certiorari denied Ingram v.S. 119 N. 3538.2d ~1. 7 N.A 462. 7 N.-Ingram v. also. 76 payment of taxes.S.

102 W.J.Cr. Lieber.-Brewer v. 120 So. 1103. and mere irregularities are not fatal.-Pinn v. are treated supra §§ 13-19. but the subject is now generally regulated by statute. 706.W.W.S. volunteer safety personnel shall be excused from jury service upon individual request. 544. 177. State. 200 Ind. 63.2d 108. appeal after remand 500 So.C.C!.D. ~ 38A C.93 . 271 Ind. State. SELECTION AND DRAWING § 37.2d 482. 437.Cr. 606. 443.Cr. the no ground dictment. 163 S.E. to lisqualified At common law the mode of selecting grand jurors was within the sheriffs discretion. 393 N. Simms. 289. 28 U. N.2d 518. 481. 220 N. Peacock. State. 98 and generally is essential to the existence of a legal grand jury that there be at least a substantial compliance with the mode of selection prescribed by statute. N.2d 1105. W.A. and the manner of their selection was a matter within his discretion. 1102. 94 At present. 252 S. 161 S. 199.W. 232 P. Walla. Ky.2d 797.2d 780. 330. 656.App. 656. and excuse of members thereof would not be inconsistent with statutory policies.Va.W. 57 N. 2458.-Kingsbury v.Ed. 887. 63. 104 L. 95. Tex. 86.C. State. 564Miller v. Pridmore.. 16 S. 139 Tex. (2) The general purpose of these statutes is to expedite and not to hamper the administration of justice. S. 269 S. 1. Fla. State.!\. 130 L. certiorari denied 109 S. " 130 L. Muncey.-McDaniel v. Sharp. 259 N.W. 91 A federal district court's plan for random jury selection shall specify those other groups of persons or occupational classes whose members shall.-Gentry v.-State v. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Gnide following Preface. 94.E. 357 Ill.97 and may not be arbitrarily ignored. 88 motion. 162 N.-Kitchen v. 622. 2:04 N. State. 122 S. 97 Fla.C. Peacock. grand jurors were selected by the sheriff.s taxes to 'equiring a t qualified nt of taxes Id not for D. C. 139 S. 260-Sanchez v. Commonwealth.W. 94 Tex. State. Commonwealth.95 the subject being one which the legislature is authorized to regulate by statute in the absence of constitutional provision prescribing or proscribing any particular method of selection. De Armas v.Ed. modified on rehearing on other grounds 235 P. 440 So. 200 Ind. Ill. Substantial compliance with the statutes is usually sufficient. Research Note Prohibition on discrimination and fair cross section requirement. Okl. State.W. § 1863(b)(5)(A).2d 452. 3 Mass. Platt.2d 1155. 346.2d 323. 276. 423. 93. 96 Statutes concerning the selection and drawing of grand jurors must be complied with.A.-State v. 91.W.E. 73-State v. 928. 210. 509. the mode . Conn. Iowa-State v.Randolph v. 659.-Hicks v.W. rehearing :nial of habeas ring denied 36 :. 107 Neb.E. 13~krell v.E.2d 121. 117 S. 96.W. Tex.90 Constitutional provisions generally do not require that grand jurors be selected in any particular manner. State.W. 181 S. State. 726. in the persons.-Randolph v. 193 La.E. 275 Ky. 330. Cr.C. Ky. 140. 27 Ariz. 770 S.of selecting a grand jury generally is a matter of statutory requirement. 363 .-State ex reI. 46 Okl. 57 N. 490 U. 135 S. N.J. Ind. Purpose of statutes (1) Statutes regulating the selection of grand jurors are enacted for public reasons rather than for the benefit of any individual.E. 218--Powell v. 135 Tex. 135 Tex.-State v.afety personidual request. 211. 548.E.c.C.Cr. particularly where the statutes are considered directory rather than mandatory.2d 965.-Bain v.D. Ariz. 140 S.2d 3. they may I rule.-State ex reI. Burns v. Library References Grand Jury 00>8. 16 S. 462. 165 Va. but such groups or classes shall be excused only if GRAND JURIES § 37 the court finds.Va.-State v. 117 S. WeDs. 98. 726. in the case of federal grand juries. 92.-Hicks v. Walla. Mack. Ind. 69. 99 Tex.S. 534. 220 N.E. 192 So.Cr. 28 Ariz. 186 N. Dohrn. 240 Ky.99 A substantial compliance is generally considered sufficient.2d 127.D. 367 Ill.App.92 The Act's bar on service by certain public officers and employees is treated supra § 30.-State v.E.Cr. including Jury Selection and Service Act provisions relevant thereto. At common law. however/ and technical irregularities not amounting to upulous or e duties of L sufficient ce. Va.-State v.-. 709.2d 801. Ind. Commonwealth. Under the Jury Selection and Service Act. In General nerely ex.C. 117 Fla. 97 Fla. 395.Ed.c. and the plan states. 453. Ala. 283 Ky. 11 N. be excused. 201 Conn. Commonwealth. 335.C. 287 P. qualifica- . that jury service by such class or group would entail undue hardship or extreme inconvenience to the members thereof.-People v.-Smith v.-Terrell v. 210. 1137. and to preclude the packing of juries or the selection of jurors with reference to particular matters and causes likely to be submitted to them for determination. certiorari 661. to equalize the burden of jury service. 594. 99. State.-State v.. 331. Neb.W. Fla. § 1863(b)(5)(B).2d 1013. 18. 224 N. 161 S. 192 N. State.S.S. 162 S. 344. La. N. they are intended to facilitate the selection of a jury.-Parks v.-Taylor v. 199. Fla. 158 So.C!. Ill.D.E. 160.2d 612. 211. State.2d 452. 97.W. 28 U.-People v.S. 120 So. Cr. on individual request. 162 N. 42 S. State. 417. Tex. State. 518 A2d 35.

130 So.2d 395. 191 Ga. 116 F.C!. 614. 599.". 931.S. and whose acts are null and void. 110 AL.W.-State v.2d 801. 629. CrApp.-State v.. Walla. he should have objected to grand jurors because of alleged irregularity in drawing names of grand jurors.R 331.C!. certiorari denied 62 S. before return of indictment.S.W. 359.-Hamilton v. Burns v. U. Wiseman. 344Weer v. D. Millhaubt. rehearing denied 37 N. 489.Ed.-Davis v..C. Tex. 315 U. proceedings for selecting a grand jury may be vitiated by the participation therein of a person who is not a jury cOlnmissioner. 619.S. U. 773.9 the object of such statutes being to eliminate technical objections and 2.2d 127.Ed.W. 459 U.D. 9. Ballard.S. 57 N. 5.Supp.Cr.-U. 86 L. III.-State v. 248. 393 N. 992. 456. N. Tenn. 82 L.2d 350. permit a trial on the merits. U.W.-Gravitt. Dohm. 4.I2 The officials charged with the drawing or selection of the grand jury are sometimes vested with a wide discretion in the selection of grand jurors and the determination of their fitness.Supp. 315 U.Ed.S. certiorari denied 103 S. 674. 45. D. 248. 217. 86 L. 5. U.W. 315 U.j\. 175 La. 423. 14 it has power only to declare their actions null and void under circumstances of malfeasance or misfeasance.2d 787.S. 43 LaAun. 224 N. Infringement of substantial rights necessary Iowa-State v.S. 133 So.CAlll.C..2 at least where it does not appear that accused has been prejudiced in any way.Ed. Pierre. Prejudice not presumed Iowa-State v.S. 637. 10 So. 827.2d 389. La. 16.S.AIII.C!. 271 Ind. 47.§ 37 GRAND JURIES 38A C. 169. 288 S. 144 Kan. 726. 3.-Gentry v. 211. State.. Brantley.State. 86 L.Cr. no objection to any irregularity in the selection of a grand jury will prevail unless the irregularity amounts to corruption.E.Ed. 74 L.C!. Glasser. 315 U. 315 U. 457.S. 680. 827.Pa. how they shall discharge the duties and responsibilities imposed on them by the law. 44 OId. 186 La. 219 Ind.W. 62 S. CrApp. Taylor.-Nelson v. 541. Commonwealth.S. 1102. Ky. State.J. 86 L.3 or that any of the grand jurors was incompetent or in any way disqualified. Miss. objection to the legality of a grand jury need not be made in limine where some constitutional guaranty has been invaded. 217.Ed. 9. followed in State v.S. La.2d 537.D.W. La.C!. 1222 and Roth v.S. v.7 Even under such statutes. 10. 224 N. v. v.E.2d 612.-People v.Supp.S.W. U. 60. State. 770 S.-Mullins v. rehearing denied Kretske v.a . _rtl.S.. 643 S.W. 192 N. State.S. 5. D.. Wis.. State. 231 Wis.-Bain v. who has no authority so to participate. 1017. 283 Ky. 104 L. 62 S.2d 1356.-State v. modified on other grounds 62 S. certiorari denied 130 So. 46..-State ex reI. 968. 629. 197. 668. U...-State v. D. 676. 133 So. 302 U. 36 N. 61 P. 186. Kifer. 160 Miss.C!. 1131. 530. Ga.D. OId.¥. 668. 62 S. Walla.Pa.R. 24 Ala. 13 The court has no right to tell duly constituted jury commissioners .S. 457. U.2d 1343. 18.-State v. 198 La.-State v. however.Ed. 78.S.C!.S. 1222. N. McClure.C. v.Pa.-U.2d 690.2d 708. which in the absence of constitutional violation must be followed by the courts.2d 801. U. Tex. 490. 609. State. State. 314 U. Chandler.-Petition of Salen.. Tex. 357 III. C. 527. Tex.S.Ed. 81 L..Supp. 62 S. Ala. 315 U. 259 N. 3 So.S.S. 17. 4 F. 11.S. and so at variance with the strict mandate of the law. 86 L. 401. modified on other grounds 62 S.2d 1013. Glasser. A statute providing for the selection of a grand jury is directory when a departure from the meth- a substantial departure from the method prescribed do not render a grand jury illegal and incompetent. 10 Noncompliance with statutes prescribing the manner of selecting grand jurors may be waived by accused by his failure to make proper objection at the proper timeY However. 13.S.2d 690. 637. 86 L. 57 N. 60.2d 780. 60. 1356.-U.-State v. certiorari denied 62 S. Failure to object before return of indictment Where defendant was arrested and gave bond before indictment was returned.Cr. 259 N. 211. 143 So. La. rehearing denied 57 S. 219 Ind.-U.S. State.D. 364 ~.C!. 1222 and Roth v. 350. 141 Tex.Ed. 301 U. Ind.C!.-U. 827..2d 354. McOure. 140 S. 203. certiorari denied 57 S. 35 F. 86 L. 15. 279 P. Miss.E. U.S. 160 Miss. 14. 105 Tex. Ind. 432 N. 4 F. 2458. Sharp. 95 S. rehearing denied Kretske v. 726. 701. 490 U. Dohrn. v.S.App.E.4 An irregularity is considered fatal where it deprives defendant of some substantial right5 or is so gross. C. McClure. State.·~"'-~~III!'MtttMr!I!Wj• • iMiJ. lieber. 15 Under some statutes.J'"~. 192. .W.··· . State.C!. 4 F. as to amount to a wrong per se.. certiorari denied 109 S. 11 S.Cal.Ed. 86 L.S. 175 La.-Wireman v. 7.S.C!. the major requirement for selection of a grand jury should be that the system of selection is not arbitrary and that complete impartiality should be sought.C. 314 U. so far as constitutional limitations allow. 401. 6.6 Under some statutes. 150 S. 574.C.Ed.-Nelson v. U. there is a legislative determination. 680. 827. 1222.Ed. that only such departures constitute an invasion of the substantial rights of accused.E. 117. :. 116 F.I6 Statutes as mandatory or directory. 8.s Where the departures from the mode of selection prescribed by statute which may affect the legal existence or competency of the grand jury are expressly enumerated or restricted by statute. 143 So. 222 Ala. or where there has been an arbitrary disregard of the express command of a statute prescribing the manner of selecting grand jurors. U. 668. Kan.-U.2d 895. 286 N. 105..Cr. 131 Tex.C!.-Burns v.-Haile v.W. 173 So. v.

Krug. 68 Or. State.C. 78.2d 506.:c. a total departure therefrom. 683 P.C. 350. 42 21. 114 S. 130 So. 18.. Notice and Time of Selection 6. although selected or drawn in an irregular or informal mode.W.E. 42. Mallard. 135 S. 26.-:<Jray v. Kifer. 468. Okl. certiorari denied 130 So. 283. 102 W. 114 S.-State V. 614. 107 So. 481. Ind. State.. 222 Ala.32 Generally. 22 but where the method prescribed for selecting grand jurors is directory merely.D.-Mullins V. Or. S. and have no application where there has been no attempt whatever to comply with the statute. N.J. 891. La. C. V. U. 32 N.D.33 Notice of the meeting at which the drawing is to be made must be given to the officers who are to make the drawing. Muncey. 102 W.36 and.-State v. 164 U.D. but.D. 462. lIe indictment was Jecause of alleged e return of indict- Ala. certiorari denied 19 denied 57 S. 588.23 at least if disqualified persons have not been placed on the jury. 18. Mallard. 333.E.-State V.J. 36. 594. S. 38. 197 So. 410.W. 20.W. as The notice must be served on those officers who in the particular instance constitute the drawing board. 604.37 Absence of notice has been considered immaterial where the officers to be notified were present and performed their duties. 357 m. 162 N. 30. 34 and under some statutes it is held that such notice must be in writing.31 The failure of any officer to perform the duties required of him within the time specified in no way invalidates the selecting and drawing of grand jurors where statutes in effect so provide. 135 S. Johnson.E.-E\lis v. 194 Iowa 628.19 Provisions respecting the drawing and listing of grand jurors are of course directory where the governing statute expressly so provides. Statutory provisions of this character have generally been held to be directory merely. 184 N. 333. S. Muncey. 18 A statute providing that the names of jurors shall be placed in a sealed envelope and drawn by lot from the envelope has been held mandatory. S. 197 So.W. Library References Grand Jury e->8.W. must be esteemed legal and competent to perform all the duties of such a body.-Randolph V. 90 Tex. State. 588. 288. 33. Tex. 50 S.25 Effect of death of grand juror.R.28 placing the names in the jury box. 122 Oklo 64.C.La. 200 Ind. 667. 17. Childers. 667. so that failure to follow them strictly will not vitiate the action of the grand jury. 128 N. 960.-Pickens v. 218 Ind. for example. m.C. 109.App. State. 49 S. 184 N. GRAND JURIES § 38 statute. State. 194 Iowa 628. 527. or an invasion of the rights of citizens given them by other statutes or by constitutional provisions.-State v.C.24 and no prejudice appears. Ueber.-State v. I responsibilit has power I void under risfeasance. 298 Or. 350. W. certiorari . 551. 194 Wis.W.S.-State V. unjust prosecutions.-People v. Although the various acts connected with the selection of a grand jury should be performed at the times specified in the :83 Ky. 115 Ala. Iowa-State v. 674. 234 S. Iowa-State V. State. 143 Fla. 169. Wis. Burris.King V. 16 F.-Atkinson v. 24.S. 757. ing or selec'ested with a d jurors and he court has rmmissioners . 50 S. 1017. 417. 388. 6.21 Statutes which are directory only should nevertheless be followed.E. Ind. 60 S.-State v. 24 Ala. 29. 210 N. 126. 35.B. error dismissed 17 S.O. Johnson.E.17 Such a statute is mandatory when its observance is required in order to prevent fraud. Wescott.41 L. 217 N.-State v. 186 La. 38. and is not complied with by drawing the names from an open bOx.. 388. State.Va. 594. 207 N. Hassan. 192 N. Burris. review denied 690 P. 41 P. 4 Woods 185. 78. 50 S.-Gray v.S. 110 AL. 143 Fla.30 depends on the terms of the governing statutes. 423. 142 Miss.17. 656. 995. 37. W. 34. State. 502. ·. Paramore. 350. ~ Iowa-State v. 21(j N. Ala.15 Ilirement for ~t the system Lat complete The time for performing the various acts connected with the selection and drawing of a grand jury. Miss. the time for drawing the panel. 22 So. 12 Wash.Ed.D.Cr.C.O.-U.2d 1380.C.8A C.-State v. on the contrary.-State v.Va. where statutes so prescribe. 146 N.36 or where it is not shown that the jurors selected n of a grand .26 § 38. 137 Miss. 289. rtiorari denied 62 Cr. N. 1107. 331.E. 19. 299.27 as. 28. State. certiorari tiorari denied 103 365 .-State v.S. 1183. 530. 17. 173 So. od prescribed therein does not deprive the party challenging the regularity of the selection of rights granted to him by other statutes or by constitutional provisions. 150.D. Notice of the drawing must be given as prescribed by statute.-State v.D. The death of a grand juror is presumed to operate iinpartially.m the meth- pp. 210 N. 490. 38. Fla.29 or selecting additional names. 149 Iowa 518. Wash.-State v. and a jury list legally selected is not rendered illegal because of such death. 9. a grand jury. the notice is to be served on the officer who is to participate in the drawing and not on the one who is disqualified. 23. Odiorne.D. 252 P. Miss. 27. all grand jurors need not be diawn at the same time.-State v. 704. 22. 210.W. 190 N.2d 705.App. Fla. 388. onstitutional icribing the )e waived by objection at to the legalIe in limine las been inlitrary disrelIte prescrib·S. 101 So.-Anderson v. 25. 190 N. the failure to do so does not generally vitiate the action of the grand jury. 17.12 38A C. where an officer is designated to serve in the event that another is disqualified. Rondeau.S.E.Va. 32. Fellows.W. N.W. Johnson. 20 but such provisions are intended to cover cases where there has been an attempt to follow the statute.Va. 462.

§ 38

GRAND JURIES

38A C.J.8 ..
al names to be placed in the jury box as he deems needful.45 Under some statutes, the fact that more or fewer names were drawn on the panel than the statutes prescribed is immaterial, or at least is not fataI.46 Objection cannot be taken that more names were drawn on the panel from which a grand jury was subsequently selected than the statute directed where by statute no objection going to the formation of the grand jury can be taken except that the names were not drawn in the presence of the officers designated by law.47 It has been held not improper practice to draw alternates for the grand jury consisting of persons in excess of the maximum number of persons permitted to serve as grand jurors.48 In the absence of statute, the number of names of prospective grand jurors to be placed in the jury box may properly be left to the discretion of judges of courts of record, evidenced by rules adopted for that purpose. 49
§ 40.

were not otherwise qualified to serve.39
§ 39.

Size of Jury Panel

The size of the jury panel depends on the terms of the applicable statutes. Such statutes must be followed, and departures therefrom have in some cases been held fatal to the action ofthe grand jury. Library References Grand Jury 0=>8.

The number of names of prospective grand jurors to be placed in the jury box, or on the list or panel, depends on the provisions of the governing statutes.40 The drawing of a smaller number than the statute requires has been held to be a material departure from the mode of selection prescribed by statute and fatal to the validity and competency of a grand jury subsequently· impaneled from the names drawn.41 Where statutes expressly provide for the selection of a panel consisting of a designated number of grand jurors, and a smaller number is selected, the officers charged with the selection of grand jurors may at a subsequent meeting properly treat the panel so selected as a nullity, and proceed to select a panel consisting of the required number.42 Jury commissioners may not strike from the venire list, and remove from the jury box, the names of jurors without replacing them, or at least making a bona fide effort to replace them, by an equal number of qualified jurors sufficient to make up the required number of prospective grand jurors.43
It has been held fatal that more names were drawn from the jury box than directed by statute 44 or that more names were placed in the box than were authorized by order of a judge acting under a statute giving him the right to order such addition-

By Whom Selected and Drawn

Grand jurors should be selected only by the officers designated by statute to perform such duty. A grand jury selected by de facto officers, or by officers who have failed to comply with directory provisions as to taking an oath, is generally considered competent to act. Library References Grand Jury 0=>7, 8;

Grand jurors should be selected and drawn by the officer or officers designated by statute to perform such duty.50 A grand jury selected or drawn by a person or persons other than those designated by law,51 or by a person who is disqualified to act in this capacity,52 is generally held to be illegal and incompetent to perform the duties of such a body. A sufficient number of officers must

39. Ohicr-State v. Sublett, 436 N.E.2d 1376, 70 Ohio App.2d 252, 24 O.0.3d356. 40. lli.-People v. Price, 20 N.E.2d 61, 371 lli. 137, certiorari denied Price v. People of State of Illinois, 60 S.Ct. 94, 308 U.S. 551, 84 L.Ed.463. La.-State v. Brantley, 143 So. 46, 175 La. 192. 41. Fla.-Keech v. State, 15 Fla. 591-Gladden v. State, 12 Fla 562. 42. IIl.-People v. Routson, 188 N.E. 883, 354 lli. 573. 43. La.-State v. Brantley, 143 So. 46, 175 La. 192. 44. Miss.-Leathers v. State, 26 Miss. 73. 45. Fla.-Slayton v. State, 141 So. 875, 105 Fla. 586. 46. Ill.-People v. Lieber, 192 N.E. 331, 357 lli. 423. Wis.-State v. Wescott, 217 N.W. 283, 194 Wis. 410. 47. Ala.-Stevenson v. State, 41 So. 526, 148 Ala. 663.

48. U.S.-Gaughan v. U.S., C.C.ANeb., 19 F.2d 897. 49. Ill.-People v. Bain, 193 N.E. 137, 358 lli. 177. 50. Fla-Livingston v. State, 145 So. 761, 108 Fla. 193, corrected on other grounds 152 So. 205, 113 Fla. 391. R.I.-State v. Muldoon, 20 A2d 687, 67 R.I. 80.

Judge
Applicable statute does not mandate that county grand jury board randomly select persons ultimately chosen to sit on grand jury, nor does it preclude reasonable selection by supervising judge. Mich.-People v. Edmond, 273 N.W.2d 85, 86 MichApp. 374. 51. Cal.-Bruner v. Superior Court of City and County of San Francisco, 28 P. 341, 92 C. 239. 52. La.-State v. Malone, 86 So. 800, 148 La. 288.

366

l

C.J.S ..

38A C.J.S.
be present.53 Where a majority of all the officers designated to conduct the drawing of grand jurors appear and act, this is generally sufficient.54 Statutes concerning the appointment of jury commissioners should be rigidly enforced.55 Under some,56 but not other,57 statutory provisions it is proper for the court, in selecting a jury commissioner, to consider his political party affiliations. A statute providing that one of two jury commissioners shall be a resident of a particular locality has been construed as not prohibiting the appointment of both from such locality.58

GRAND JURIES § 41
not fatal. 63 An oath administered to a jury commissioner is not invalidated by a slight misdescription of the office.64 No objection can be taken to the failure of the selecting officers to take the oath required by law where it is declared by statute that no objection going to the formation of the grand jury can be taken except that the jurors were not drawn in the presence of the officers designated by law. 65 The failure of a court clerk, who is ex officio a jury commissioner, to take a special oath as jury commissioner has been held not fatal, his oath as court clerk being considered sufficient.66 Where jury commissioners subscribed the required oath after they drew the list of grand jurors, their subscription was held to relate back to the beginning of their official duties. 67
§ 41.

he deems

~ or fewer l statutes ot fatal. 46 nes were jury was clirected '1e format that the !e of the l held not ~he grand the maxiserve as

of names '1 the jury of judges lopted for

De facto officers. It is the general rule that the fact that the grand jurors were selected or drawn by de facto officers does not render the grand jury illegal or incompetent to act.59 The acts of jury commissioners who are officers de facto are valid as to third persons and the public.60 Jury commissioners in possession of their offices under color of title are at least de facto officers.6!
Oath. It has been held that, where the officer designated to select grand jurors is required by statute to take an oath in order to be qualified to act, a grand jury selected or drawn by an officer who had not been sworn is illegal and incompetent.62 However, the failure to comply with clirectory provisions as to the taking of an oath has been held

Apportionment of Grand J,urors

There must be substantial compliance with statutes requiring prospective grand jurors to be apportioned among designated localities; but a departure from the statutory provisions is not in all cases fatal. Library References
Grand Jury ~4.

fficers desig~ selected by comply with iy considered

The common-law practice required the sheriff to select some of the persons returned by him as grand jurors from every hundred. 68 It was not required that they should be selected from that part of the county in which the offense was committed or in which defendant resided. 69

drawn by statute to llected or han those s disqualiheld to be duties of lcers must

53. Commissioners (1) Presence of two duly appointed commissioners to prepare jury list is mandatory. W.Va.-State v. Pancake, 296 S.E.2d 37, 170 W.Va. 690. (2) Fact that jury commissioners did not always select names for grand jury in presence of each other was not such substantial failure to comply with statutory requirements that selection resulted in illegal grand jury. Ind.-Wireman v. State, 432 N.E.2d 1343. Judge Purpose of statute providing that each district judge in rotation according to seniority shall select one name from the veuire was to procure random selection from list and to prevent anyone judge or fraction from controlling selection process, and thus absence of some of the judges during selection process did not violate statute. Nev.-Ler.a v. Sheriff, Clark County, 568 P.2d 581, 93 Nev. 498. 54. Ga.-Smith v. State, 15 S.E. 682, 90 Ga. 133. 55. Ky.-Miller v. Commonwealth, 42 S.W.2d 518, 240 Ky. 346. 56. U.S.-U.S. v. Caplis, D.C.La., 257 F. 840. 57. Ill.-People v. Price, 20 N.E.2d 61, 371 m. 137, certiorari denied Price v. People of State of Illinois, 60 S.C!. 94, 308 U.S. 551, 84 L.Ed.463. 58. Ind.-Dale v. State, 164 N.E. 260, 200 Ind. 408. 59. Iowa-State v. Burris, 190 N.W. 38, 194 Iowa 628.

La.-State v. White, 101 So. 136, 156 La. 77O-State v. Smith, 96 So. 127, 153 La. 577. N.J.-State v. Cioffe, 26 A.2d 57, 128 N.J.L. 342, affirmed, 32 A.2d 79, 130 N.J.L. 160. Wis.-State v. Wescott, 217 N.W. 283,194 Wis. 410. 60. La.-State v. Mitchell, 96 So. 130, 153 La. 585. 61. La.-State v. Mitchell, 96 So. 130, 153 La. 585. N.J.-State v. Cioffe, 26 A.2d 57, 128 N.J.L. 342, affirmed 32 A.2d 79, 130 N.J.L. 160. 62. La.-State v. Flint, 26 So. 913, 52 La.Ann. 62. State v. Bradley, 32 La.Ann. 402. 63. Ga.-Harris v. State, 12 S.E.2d 64, 191 Ga. 243. Mich.-People v. Edmond, 273 N.W.2d 85, 86 Mich.App. 374. 64. La.-State v. Mitchell, 96 So. 130, 153 La. 585. 65. Ala.-Sims v. State, 41 So. 413, 146 Ala. 109. 66. La.-State v. Smith, 96 So. 127, 153 La. 577. 67. Ga.-Rosenblatt v. State, 58 S.E. 1107, 2 Ga.App. 649 . 68. Neb.-Patrick v. State, 20 N.W. 121, 16 Neb. 330. 69. Ala.-Williams v. State, 61 Ala. 33. N.H.-State v. Jackson, 90 A. 791, 77 N.H. 287.

, corrected on

nd jury board rand jury, nor

. 374.

ounty of San

367

§ 41

GRAND JURIES

38A C.J.S.
the correctness thereof. so The fact that the list of grand jurors was not signed by the commissioners has been held not fatal where it appeared that the list drawn by them was in fact the one from which the grand jury in question was drawn. 81
§ 43., Correction and Revision of Jury List
The jury list from which grand jurors are to be selected is subject to correction and revision from time to time where the governing statutes so provide. Library References Grand Jury 0=>8.
rE

At present the terms of the governing statutes determine the necessity for selecting grand jurors from designated districts or divisions of a county, as, for example, from the particular division or locality in which the court is held or from the different divisions proportionately.70 It has been held essential to the legal existence of a grand jury that there be a substantial compliance with the requirements of such statuteS.71 A grand jury drawn in violation of a statute providing that not more than a certain number should be drawn as grand jurors from any specified division has been held to acquire no legal existence.72 On the other hand, an honest omission of jury commissioners to apportion jurors properly has been held not fatal. 7s The Constitution does not require that a federal grand jury be selected from the entire district.74 A federal grand jury need not be drawn from a particular division.75
§ 42.

tl

a]

0]

yl

§

BE

Protection and Certification of Lists or Panels

The integrity of the grand jwy box and the list of grand jurors should be scrupulously protected. Where statutes so require, the jwy lists or jury panels must be certified. Library References

Grand Jury 0=>8.

The integrity of the grand jury box and the list of grand jurors should be scrupulously protected.76 Where statutes so require, the jury lists or jury panels must be certified by the officers charged with the duty of their preparation.77 A substantial compliance with such requirement is generally held to be sufficient,78 and mere irregularities in the form of the certificate do not invalidate the list.79 A deputy clerk of court may record the list of the jurors on the journals of the court and certify to
70. Ala.-McCollum v. State, 93 So. 261, 18 A1a.App. 558. TIl.-People v. Green, 161 N.B. 83, 329 III. 576-People v. Sepich, 237 ill.App.178. 71. III.-People v. Green, 161 N.E. 83, 329 ill. 576. 72. Iowa-State v. Kouhns, 73 N.W. 353, 103 Iowa 72O-State v. Russell, 58 N.W. 915, 90 Iowa 569. 73. Hawaii-Territory v. Braly, 29 Hawaii 7. 74. U.S.-Seadlund v. U.S., C.C.Aill., 97 F.2d 742.

The jury list from which grand jurors are to be selected is subject to correction and revision from time to time where the governing statutes so provide.82 Such provisions are generally held to be directory merely, and where the officers charged with the duty of correction and revision fail to perform such duty, a grand jury selected from the old list is legal and competent to perform the duties of such a body.83 The action of a board in amending a grand jury list should not be annulled by reason of its failure to cause an entry thereof to be made in the minutes of its proceedings.84 Where a change in a grand jury list is made by the proper officials, it is immaterial who performs the necessary clerical work incidental to the change.85 Under some statutes providing for the drawing and listing of jurors, a judge may direct the jury commissioners to prepare a new jury list and draw a new grand jury where irregularities or omissions pertaining to the selection of grand juries have occurred.86 Under statutes providing for the addition of names to the jury box when needed, it has been held that the additional names are to be placed in

§

SI

...

tJ

.,

Ii

(J

j

41

4l "I
I

1i

II

t
1

Oath or seal
Fact that clerk's certification of list of prospective grand jurors lacked oath or seal did not render certification defective. Nev.-Lera v. Sheriff, Clark County, 568 P.2d 581, 93 Nev. 498. 78. Iowa-State v. Carter, 121 N.W. 801, 144 Iowa 371. 79. Ark.-Brassfield v. State, 18 S.W. 1040, 55 Ark. 556. 80. Okl.-Tegeler v. State, 130 P. 1164, 9 Okl.Cr. 138.-Reed v. Territory, 98 P. 583, 1 Okla.Cr. 481. 81. Tex.-Bryant v. State, 260 S.W. 598, 97 Tex.Cr. 11. 82. La.-State v. Johnson, 41 So. 117, 116 La. 856. 83. N.C.-State v. Durham Fertilizer Co., 16 S.B. 231, 111 N.C. 658 . 84. Iowa-State v. Pierson, 216 N.W. 43, 204 Iowa 837. 85. Iowa-State v. Pierson, 216 N.W. 43, 204 Iowa 837. 86. S.C.-State v. Wells, 161 S.E. 177, 162 S.c. 509.


I

75.

U.S.-U.S. v. White Lance, D.C.S.D., 480 F.Supp. 920.

76. Ind.-State v. Bass, 1 N.E.2d 927, 210 Ind. 181, followed in State v. Powell, 1 N.E.2d 929, 210 Ind. 701. . Ky,-Miller v. Commonwealth, 42 S.W.2d 518, 240 Ky. 346. 77. Wash.-State v. Krug, 41 P. 126, 12 Wash. 288, error dismissed 17 S.Ct. 995, 164 U.S. 704, 41 L.Ed.2d 1183.

368
iiI._ iiiliIillla:UZWl$ililllllli.it!!!iiii!!ii!iS!!!ii!!iiiilU L/iiiiilk i. Riiljijftij' '1

'Ill 111111111 1111.4i~'h!~

-Nelson v. 352. 303 Ill. to which they respond. 594. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Guide following Preface.App. C.87 § 44. 1. the number to be summoned.2d 40. 92. 98. Place of summoning The fact that grand jurors are summoned while at the courthouse rather than at ·their respective homes does not change their competency to serve. 90 The failure to enter on the minutes the court's order directing the clerk and the jury commissioner to place in the jury box the number of names required by statute does not render the grand jury an illegal body. 133 So. State. .95 particularly under statutes 87. depend on the terms of the governing statutes.S. 94 P.Cr. 97.E.-Weer v. the method of summoning grand jurors is very generally regulated by statute in the different jurisdictions. 219 Ind. W.-Williams v. State. 189. i. 586.SA C.-State v. 93. Iowa-State v.cers charged iTision fail to ~ted from the rm the duties lrs . or otherwise than by service of the regular writ. service on the grand jurors by mail. it has been o be placed in At common law. 36 N. Howard. this mode of summoning a grand jury is still available. 141 So.-Reed v.J. Miss. 504.E. 135 N.E.J. 1165. 401. 89.99 However.-Winn v. 10 Iowa 101. 90. 231.93 There must be a substantial. 129. 303 Ill. SUMMONING JURORS § 45.-Kingsbury v. People.2d 453.11.Cr.E. 95. 723. it is ssary clerical providing that a jury summoned in an informal or irregular manner shall nevertheless be deemed a legal jury after it has been impaneled and sworn. at the list of mmissioners . 723. 88.S. 968.-People v. the box with the other names still remaining there.-Woolen v. 279 P. and. 248. Wallace. 45. 30 N. Tex. 887. a 837. 105 Fla. i. but not otherwise. and the time of summoning.E. A statute providing for the summoning of a grand jury is directory when a departure therefrom does not. Okl. which must be substantially complied with. 68 Tex. 111 N.W. In General The mode of summoning grand jurors. 369 .. 28 Ariz.-Slayton v. rehearing denied 37 N.91 Record of Selection and Drawing time where the A record must be made of the matters pertaining to the selection and drawing of grand juries where the statutes so require. Sepich. Ill. Iowa-State v. 135 S. it. l. )9. People v.E. 329 Ill. 217. it is not necessary that the sheriff serve the venire on the grand jurors personally. Sink. 117 S. 178. U. Library References Grand Jury <99. k. 94. 104 Colo. 'r. 88 In the absence of statutory requirement.. U. a 371. State.S. 140.96 or under statutes providing that irregularities in summoning a grand jury shall not be fatal unless defendant has thereby been deprived of some substantial right. in the absence of fraud or prejudice. is not a legal summons. 20 Iowa 82. and the particular method depends on the terms of the governing statute.1 Statutes as mandatory or directory. 504. 138 Tex.Va.W. GRAND JURIES § 45 Under some statutes.Va. 93 Nev. 160 N. and mere irregularities not amounting to a substantial departure from the method prescribed by statute are immaterial. 86. Ill. 704. 91.-Rogers v.Cr. State. 289. 275 F.--Gravitt v. however. modified on rehearing on other grounds 235 P. 99.Cr. Fla. State. Ind. ~ the drawing irect the jury list and draw 3 or omissions d juries have e addition of i. being considered sufficient. 564. 94 but a substantial compliance is sufficient.-People v. a grand jury could be summoned by open venire. 875. 607. Library References Grand Jury e=>8.tutes so pro'f held to be . Ariz.-People v.556. Colo. 92 At present.2d 118. in the absence of statute otherwise providing. a grand jury of its failure n the minutes re in a grand )fficials. 93 W.C. 374 Ill. and that the box should be emptied of all names only when a new list of names for the succeeding year is put into the box. compliance with the method of summoning prescribed by such statute. militate against other statutory or constitutional rights of the party challenging the regularity of the ective grand jurors :ctive. Wallace. or which expressly limit the effect of irregularities. Technical irregularities. 219 Ind. 160 Miss. a 837.are E. 232 P. the names of prospective grand jurors are required to be recorded. 96. 237 Ill. there is also authority which holds that notice given by the sheriff by mail. Carney. 217. is not necessary that a record be kept showing the selection of jury lists 89 or the manner of the drawing of the panel. 44 Okl. State. State. particularly under statutes which are directory merely. 135 N. Birger.S. Tex.2d 537. 138. 150 S. are not fatal. 202.CACal. to be revision from .98 in the absence of any showing that the substantial rights of accused were prejudiced thereby.E.red that the l from which ry List to be selected is 38A C. 658.2d 787. 498.97 According to some authorities. Ill. 27 Ariz. Austin. 480-People v.

87 Va.-Patrick v.-White v.87 Va. 171 Mass. 89 Ill. Utah-Thorp v. 4. Connell. 143 Fla.-Hess v. 143 Fla. 150 So. Technical defects in the writ or return usually are not considered fatal to the legality of the grand jury. 362.E. the process for summoning a grand jury was a precept either in the name of the king or of two or more justices of the peace directed to the sheriff.S. unvenire acts ex officio and under the mandate of the der the view that statutes of this character are statute and not by direction or authority of the directory to the sheriff or officer. Fla. and fatal to the legal existence and competency of a grand jury. Commonwealth.-State v. 3 Utah 441.2d 453.-Rice v. it grand jurors is the proper mode of procedure.S.5 which cannot be harmful does not vitiate the orgaand. 74 L. 16 Neb. U.W. 333.directory. Miss. 35 F. although it § 46. 1107. People. 90 Tex. however. State. 17. and that the 12. People. twenty-four good and lawful men of the county.-Curtis v.W. 333. State. Krathofski.-People v.<::. if the grand jurors attend and serve although failure to comply with such statutes has without such notice.C!.6 However.3 Provisions respecting the summoning of grand jurors are of course directory only. State. 589. 36 Me. the statuPrior order of court. 5. 15.§ 45 . Any day during term If the court may order an open venire for a grand jury "during the term. 121. 490. Mo. 537. Colo. Ind.2 A mandatory statute pertaining to the summoning of a grand jury is one required to be observed in order to prevent fraud. 178. 571. that a writ of venire facias or a process in the nature of that writ is necessary for the bringing together of a grand jury authorized to find valid indictments. Symonds. 9. 9 Number to be summoned.IO At present. Me. 27 Ky. 539. At common law. 73.7 is held that. tory provisions should be complied with in every respect. 227 Ala. 73 Ind. 192 N. C. 13 S. 423. 7. Mass. 73. 1146. State. as for example where they require that grand jurors shall be summoned or notified.-Gray v.. Ky. Va.A. either at common law or under statute.-Beasley v. I7 In this country the rule has been laid down by some authorities.-Rogers v. 20 N. Ueber. 730.E. unjust prosecution.Ed. GRAND JURIES grand jury. 589. 16. Where statutes prescribe the time of summoning grand jurors.-Curtis v. Va. so that a deviation therefrom pendently of any action on the part of the COurt. 13. U.S. 85 S. 14 Such statutes are frequently considered At common law. 331. 128.Y.I5 Thus. nize the panel if found in attendance. 120 Ky.W. 370 ." the particular day of the term on which the order is made is immaterial. 8. the clerk in issuing a nization or actions of the grand jury. 561. 4 Leigh 645. 281 U. Ala.N. and intended for court.. Burton. under some statutes. Fla. 465. 14. 104 Colo.S. 197 So.E.I3 Time of summoning. 289. certiorari denied 150 So. 357 m. s The court may orgathe grand jury summoned." 38A C. under some statutes a prior or. State. and every commission of oyer and terminer. Miss. People.Rptr. of selection prescribed. 11. 13 S. 137 Miss. 753. Library References Grand Jury e->9. 282. 6. 10. Commonwealth.l l While statutes of this character have been regarded as directory. 594.App. the sheriff of the county was required to return to every session of the peace. and of general jail delivery. the number of grand jurors to be summoned is governed by the applicable statutory or constitutional provision.-Gray v.the convenience of grand jurors that they may have der of the court authorizing the summoning of sufficient notice of the service required of them. 101 So.-Bolton v. At common law.2d 689. the validity of the organization I6 been held not to affect the validity of the action of of the grand jury is not affected. 26 Miss. 330. 25 Ala.Cr. 94 P. 246.J. 3. Tex. 42. it seems that a precept for the summoning of grand jurors might be issued inde. within a specified period prior to the commencement of the term.12 it has also been held that the summoning of a greater number than the statute directs is a substantial departure from the method 2. 1040. 588. 50 N. 31 Va.-Leathers v. Commonwealth v. certiorari denied 50 S.-Commonwealth v. ing of a grand jury. 645. Commonwealth. 364.E. State. 73. 197 So.L. where the governing statute expressly so provides. 588. Ill. 908. 49 Mo. or an invasion of statutory or constitutional rights of citizens.-Atkinson v. Ill. or that the writ shall issue.-State v. Writ has come in response to a summons issued without The issuance and return of a writ of venire facias or similar process are required by some authorities for the summonthe prescribed order therefor. Neb. 24 P.-King v. 459. State. State. 234 S.

352.W. •ire facias or the summonTit or return le grand jury. 3 Ky. 37.-State v. Commonwealth. 329 ill. U. 16 F. it and serve rganization Requisites and validity.35 The court may authorize the officer to amend his return according to the facts. 475.38 and. 9 Humphr. 388.-Randolph v.S. v. v. 20. Tenn. D. 900.-State v. 68. 281.-People v. 66 Me. District Court for Barnes County. Bradford. State. 47.D. 162 N. in the absence of a statute requiring it. 73. 57 N.42 N. Library References Grand Jury €:o>9. Antz. Ill. 13 S.J. 35. U. where the sheriff is unable to act.-State v.22 the failure to state the full or exact name of a grand juror. State. the sheriff generally is still the proper officer to summon grand juries.-Commonwealth v.Va. 352. 130 Mass. 627. 114 N. 160 N.J. 704. 16 Gratt.E. Walla. 329 ill. 27.Mo.E. W. 60.L. 656. affirmed 18 N. 593. 633. Commonwealth.-U.D.J. a venire facias tested in the name of another is insufficient. 280 S.L.S.24 or the affixing of an erroneous date. 255 AD. 9 N. 19. N.30 Where a venire facias is required to bear the test of a specified officer.32 18. 14 Neb. 589. 319. Va. Moran. 330.37 § 47. 28 Tenn.29 but in other cases the absence of the seal has been regarded as an irregularity only. 29. 211. Commonwealth. 192 F. Fleming. 224 N. 88 Va. 103 Tex.E. N.-Drake v. 711. Ind. 200. 726. The rule is laid down both under statute33 and at common laWW that the sheriff must make a return to the court or some duly authorized official showing the names of grand jurors summoned and reciting such other facts as are required by law. 279 N.E. 1S A contrary rule has been laid down. 178.S. State. uncr-acter are ttended for r may have of them.26 or that the mandatory direction of the writ is in the name of the clerk instead of the name of the courtP It has been held that.er at comof venire tat writ is grand jury d that the At common law grand jurors were summoned by the sheriff.. or fied period . the statuh in every considered therefrom e the orgaThus.E. however. it has been held that he may do so by deputy. Other officers may perform such duty. ill.Y. 142. 132. 371 ! III . 9 Humphr. 57 N.-Uvoti v.E. 9 A2d 63. Ala. 626.Cr. Ala.H. but immaterial omissions or irregularities in the return will not affect the legality of a grand jury or validity of its action. 293. 3 So. v. 564.25 It has been held immaterial also that the writ is signed by the clerk of the court without giving his official signature. Tenn. Ky. 36 and it may permit him to complete his return by signing it.E.-State v.-People v. 21. 32. N. 70.c. 38. 720.. 17 N. Cole. 210. 126 Conn. 40.-State v. 200 Ind. Ala. however. unless otherwise provided by statute. Neb. § 47 summoning ley require notified.4 Woods 174. 57 Va. Va.41 or by reason of the disqualification of the sheriff or his inability to act. Hard.-Davis v. Va. State.-Hicks v. 23.31 The fact that a writ of venire facias contained a statement of qualifications not required of grand jurors by law has been held to be a material irregularity. 564. under some statuteS. 24. Lewis. 39. N.J. Fla. 89 Va.-Smith v.:A C.C.-U.-State v. 13 So.-State v. 255 AD. but renders the venire void. 17 N.28 In some cases it has been held that the absence of the seal of the court issuing a venire facias is not a mere irregularity. Conn. Mass. 24 So.-Robinson v. 535.-Zinn v. Moran. 82 Ala. . 9 N. 68. Me.4o Officers other than the sheriff may be required to summon grand jurors by virtue of provision to that effect. 626. 530.D.19 It is too late after trial and conviction to raise the objection that a writ summoning the grand jury was not issued.-State v. 31. 117 S. 5 N.-Stoneking v. 130 Mass. and this is still the rule in the absence of statute otherwise providing. 25.S. County clerk I Ky. Fitzgerald. 22.20 GRAND JURIES Return.Y.-State v. 28. 530. Tex. Rickey.2d 319.S. 87 Va. Va.---Curtis v. Cole. where it appears that its members were legally drawn and actually attended in obedience to the summons they received.J. 93 W.-Commonwealth v. 30. courts are without power to dispense with it. Rickey. 117. The general rule is that slight irregularities or mere defects in the form of the writ are immateriaPl The legality or competency of the grand jury has been held unaffected by the absence of a statement of the qualifications of the grand jurors. Kemp. 31.9.La.W. Austin. 97 Fla. Who May Summon At common law grand jurors were summoned by the sheriff. 14 S. Mo. 103. legal exis- 38A C.Y. 33.-Samuels v.J. State. 27 N. Mass. 281.S. 3 Mo. 40. the order for a grand jury need not state for what time or period it is to serve. 199. Birger. ry "during the ler is made is 41.H. State.39 Where the sheriff is not expressly required by law to summon the jury in person. 15 S.-Rampey v. 120 So. 626.Va. State. 229. 98 Ala.S.-Commonwealth v.-Wash. 696. 293.D. 119. Birger. 160 N.W. Ilmoning a ame of the ace directe rule has . State. 171 Mass. 34. 626. 36.E. 42.W. 607. . 28 Tenn.23 the omission of the name of the town in the address of the venire. 188. 26.2d 588.-Stewart v. 118 Ala. 128. c. 229. Commonwealth. Barry.

Each person drawn for jury service may be served personally. State. In the case of a federal grand jury. 49 Under statutes. 47. W.Va . the court shall order a sufficient number of persons to complete the grand jury. 135 Miss. provisions are made for summoning grand jurors selected either from the grand jury lists. In the case of a federal grand jury. they shall be 43. Mi<. 699. if a grand juror receives notice and attends. 52.43 § 48. or where jurors have been discharged or excused or the panel has otherwise been reduced below the number required by law. Austio. 45. Jurors may be served personally or by mail.S.AKy. 12 N. from the body of the county or district. for the purpose of completing defective panels where there has been a failure to summon or procure the attendance of a sufficient number.S. 50 Under a statute authorizing courts to supply deficiencies in the grand jury panel in certain specified contingencies only.. 223. 372 .§ 47 GRAND JURIES 38A C. Ind. 607. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Gnide following Preface. 290. U.-Trammell v.S.W. 100 So. it is immaterial by whom he was served. 9. certiorari denied 45 s. 586. or in some other prescribed mode. 13 Miss. 129 Ind.-Robioson v.52 Substantial compliance is usually sufficient. Ala. COMPLETION OF DEFECTIVE PANEL § 49. authority to fill the vacancy thus occasioned with another juror possessing the requisite qualifications is also conferred by necessary implication.46 If such service is made by mail.C. or first-class mail addressed to such person at his usual residence or business address. in case of the nonattendance of a part of the regular venire. the summons may be served by the marshall or by the clerk.. Under the Jury Selection and Service Act. 4 Metc. State. 12. .45 If such service is made personally. 704. 1158.E. summonses shall be issued.Va. In General A defective grand jury panel is to be completed in the manner prescribed by statute. 46. 48. 201. who shall make such service.-Burrell v. 28 U.E.-Dowling v. 53. 151 Ala.51 It is essential to the legal existence and competency of a grand jury that the statutory provisions prescribing the method of selecting...-Atkinson v. State. if less than 16 of the persons summoned attend.. 92 Tex. 509.CA § 1866(b). 268 U. 117 S. 28 U. 93 W.J. State.2d 595. certified. 2 F.CA § 1866(b). It has been held that.S.state v. 28 N. 244 S.-Abramson v. the court may at common law order the defective panel to be supplied from bystanders. C.Ed. 50. 28 U.S.C. when the court orders a federal grand jury to be drawn.-Crickmore v. if less than 16 summoned persons attend. 28 U.S. Tex. Library References Grand Jury *'9. the summons shall be delivered by the clerk or the jury commission or their duly designated deputies to the marshall. Ky.C. and summoning persons to supply deficiencies in the grand jury panel be substantially complied with.Cr.s. 223. 688. from bystanders. 9. 527. a court cannot exercise such authority unless the contingencies named in the statute arise. Ind. U. Library References Grand Jury -8. Federal Grand Jury Under the Jury Selection and Service Act. who shall make affidavit of such service and shall attach thereto any receipt from the addressee for a registered or certified sumnions. Graddy.. 44.A § 1866(b)..S. State.53 § 50. when the court orders a federal grand jury to be drawn. Miss. 213 Ind.-CommonweaIth v. 12. 391. 61 Ky. the jury commission or their duly designated deputies.47 It has been held that.E.S. 664. 49.a. mere irregularities not amounting to a substantial departure from the mode prescribed by statute are held to be immaterial.48 When the power is given a court to excuse one called to serve as a grand juror. 18. 462. Research Note Substitution of jurors on grand jury is considered infra § 57. State. drawing. 44 So. 599.A § 1866(b).2d 266. or by registered.44 F. 51.. 69 L. the clerk or jury commission or their duly designated deputies shall issue summonses for the required number of jurors. Federal Grand Jury Library References Grand Jury -8.

Md. 67. 304. 820. and. sometimes declared by statute. 60. 1102. Ind. The terms of court for which grand juries are to be summoned and the time when they are to less than 16 sumsufficient number Tenn. Tex.E. 25.2d 479.R. State.-State v. 95.App.-Doss v. Ginsberg. 62-Smith v. 16O-Gravitt v.-People v. Old.E. 352 m.S. 284. Hawaii-State v..A § 3321. 357 m. 167 Minn. Tex.W. § 3321. Tex.S. and not from the bystanders. 586.Ed. 208 N. whether de facto or de jure. 538. 58. 564. 168. 238. Cr. 63.-Blake v. Schmidt. 590. 62. WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Gnide following Preface. State.61 Substantial compliance usually is sufficient. m.-People v. 220 Ala. Childers. or 15 person at his If such sernons shall be commission or marshall.2d 242.-In re Gannon. 46 Old.C. I. 123 So. certified. 62 It has been said that statutes relating to the organization of grand juries are directory and not mandatory. Vincent. will not vitiate their action. 770 S. the entire process of impaneling a grand jury must be done in open court. mere irregularities in impaneling a grand jury.-People v. 65. Ueber. 770 S.S. 423. 522. 1102. 68 AL.W. from the whole number summoned.Cr. 82 Wash. 54 Old. CrApp. State. 185 N. Wash. 64. 122 Old.2d 780.E. from the body of the district. 138 Tex. Or. the court shall make a like order to the marshal to summon a sufficient mnnber of persons for that purpose. 42 So. 18.2d 1013 . 44 Old. 192 N. Minn. who ervice is made ~d by the marrission or their make affidavit ~to any receipt !d or certified Whenever a challenge to a grand juror is allowed. 105 AL. Lawler. 123 Mo. 160 N. 267 N. 144 P. 352.2d 1013. 18 U. State. State.-Crowder v. State. 542. 59 It is essential to the legal existence of a grand jury that there be a substantial compliance with the mode or manner of impaneling prescribed by statute.W. 2458. not affecting the competency of any of the members. as a general rule.W. 129 N. 297. and the court shall order the marshal to summon. 135 S. Miss. 70 Haw. Cal.66 § 52.Ed.2d 199. Superior Court of Whatcom County.-People v. 65.App. 60 Arbitrary disregard of statutes in the organization of a grand jury renders the grand jury 54. In General Grand juries are to be impaneled in the manner prescribed by statute. but mere irregularities in impaneling ordinarily do not vitiate their action. 331. placed on the grand jury. 104 L. 221 Wis. 568.-State v. without authority.W. m. 329 m.S.J.55 G. 357 m." 56 The manner of selecting the grand jury from the number summoned by the sheriff or other officer and in attendance as grand jurors is frequently regulated by statute or constitutional provisions. either immediately or for a day fixed. Ala. or of its acts. Ala.Cr. 69 C. 47 A 1036. Collateral attack. 192 N.53 Under some statutes. Birger. 296 m. 252 P. 544. State. 175 So. 712.-State v. 541. certiorari denied 123 So.R.54 GRAND JURIES § 52 ~rvice I.E.C!.-Armentrout v. 423-People v. 287 P. 55. m. 23 Ala.57 provision being made in some instances for selection by lot.C.-Gentry v. 59. Kramer. 174 Tenn. 30. Hurst. 99 S.J.54 nt number. 129 S. certiorari denied 373 .W. Lawrence: 7 P.65 Amendment of record. 279 P.Cr. 147.C!.58 A statutory requirement that the grand jury shall be drawn or selected in a particular manner from the grand jurors summoned may be dispensed with where the precise number required to fill the panel are in attendance. certiorari denied 109 S. 12 Or. Edwards. 718. The court may permit the record to be amended so as to' show a proper organization of the grand jury. certiorari denied 109 S.-Shepherd v. State.S..38A C.-State v. 89 Miss. Time of Appearance and Organization The time when the grand jury is to be organized is generally prescribed by statute. m. 331. 64. ordinarily cannot be questioned in collateral proceedings. Barnwell. 116.-State v. 14 P.A. or or excused or ced below the Irts to supply 1 certain specimnot exercise lcies named in l to the legal 1 jury that the method of se'sons to supply Ie substantially mce is usually mounting to a prescribed by The selection..W. 237. 774 P. if less than 16 56. 490 U. may be 38A C. Mo. 66.-Gentry v.-State v. 39. 231. 27 AlaApp.E.S. of those who are to be sworn as grand jurors and the formation of the grand jury by the court has been designated by the term "impaneling. The validity of the organization of a grand jury.2d 780. 240. 104 L. 177. 6. IMPANELING AND ORGANIZATION § 51. they shall be 527. 32. 443. Library References Grand Jury <$=>20. 45-State v. a sufficient number of persons to complete the grand jury. and there are not in attendance other jurors sufficient to complete the grand jury. Library References Grand Jury <$=>20. 968. Wis. CrApp. 423. 11 P. Lieber.2d 240. 91 Md. 2458. State. 490 U. 1103. 57. 61. 18 U. 330.-State v.

15 So.67 In the absence of statutory provision requiring grand jurors to be summoned to appear or the grand jury to be organized on the first day of the term. Juergens.C 323. certiorari denied Price v.R 806. 463-People v.E. or organized. Tex. 95. 164 S.S. 166 S. 238.2d 61.. the organization may take place at any time during the term. D. 1131. 79 § 54. 13 Colo .C-State v. 192 F. 102 Ala. 229.-English v. State. 689.. 40 P.J. 54 Ind. a.-People v. being in many instances vested in the COurt.. 68 Statutes providing for the organization of a grand jury on the first day of the term have been held directory. within the maximum limits prescrihed by the common law. State.S.-State v.P. 73 Where a state constitution fixes the number of grand jurors at a particu67.75 Where the constitution contemplates a commonlaw grand jury of not less than 12 nor more than 23. 9 O. 155. Ohio-State v. Rule 6(a)(I). Nev.S. 192 N.E. 76.-People v.Y. 31 Fla..2d 183. 342. 633.D.W. 167. Rainey v. 379 N." 71 but the number of persons necessary to be impaneled and sworn and to be present for the legal transaction of business is now very generally dependent on constitutional or statutory provisions. 17 Misc.. In General A grand jury is usually officered by a foreman who is appointed by the court or elected by the grand jurors. 28 Ohlo Dec. 357 lli. 6 C2d 230. 57 P. 20 N. Jones.S.. 357 ill. a state constitutional provision that the legislature shall have power to determine the number of grand jurors confers a discretion on the legislature as to the number and empowers it to fix the number at less than 12.-Jackson v. but the number is now very generally regulated by constitutional or statutory provisions. 68. 323. 80-In re Opinion to the Governor.2d 602. 31 Fla. Ross. N. 120 So. 79. appear and be impaneled. State. Appointment. Fed. Washington. 62 RI. 551. 70. 369.S. S.Rules Cr. 873.Ed. Lewis.CMo. it is competent for the legislature. At common law a grand jury must be composed of not less than 12 nor more than 23 "good and lawful men.0. People of State of illinois.-State v. v. Research Note Number of jurors who must be present at a proceeiling is considered infra § 92. Ind. 472. In general Federal grand jury b.69 That the grand jury was impaneled and sworn before the date set by the order of the court has been held to be immaterial.App.-U. 22 Nev. 72.-Ex parte Bustamente. either confirming or imposing various modifications of the common-law rule. Brautigan. 67 RI. 137. lieber.C-State v.-People v. 138 Tex. are very generally prescribed by statute. lar figure. 374 . 142 N. 369. 29.E. v. 55 Ohlo App. 28 Ohlo Dec. to increase or diminish the number of grand jurors without infringing the rights of the accused guaranteed by the constitution. N. Hartley. the legislature has no power to change the number. 21 P. Number of Jurors At common law a grand jury is composed of not less than 12 nor more than 23.E. M.S. Statutes regulating the organization of grand juries usually make provision for the appointment N.C. 873. 104 P. 310 lli. 1~2 N. ill.§ 52 GRAND JURIES 38A C.-State v. 4 A2d 487.-State v. Price. 267. S. 74. Gilliam.Cr. and Duties of Foreman a. La. Bramlett. 33 N. Colo.S. 167 La. 77. Ross. Bramlett. 20 A2d 687.Fla. 371 lli. 19 Tex. Library References Grand Jury <s=>21.E.72 The federal constitution imposes no limitation on the right of a state through its legislature to fix the number of grand jurors. 166 S. 75. 164 S.2d 29. 20 Ohlo N. such a grand jury does not cease to exist when its membership falls below 16.3d262.C-State v. 356. lli.P.. 94. 18 U.77 Federal grand jury. Superior Court in and for Los Angeles County.C. 344.2d 510.2d 104. 208. 479. U.Supp. 49 S. 60 S. 200. in the absence of a showing that defendant was prejudiced thereby. 78.-U. Muldoon.S. 78 However. 121 AL. 1120. 372.70 § 53.A. 267.E. Blair. A federal grand jury shall consist of not less than 16 nor more than 23 members. People.Y. 12 So. S. RI.Proc. 84 L. 423.E. 71.2d 265. 331.-Parker v. 1021.. Ohio-State v. 74 However. Library References Grand Jury <S=>3. Wash.C!. Ala. 76 but a statute is void which fixes the number of grand jurors at less than the common-law minimum of 12.-Fitts v. 676 F. 633. 137 S.-Hughes v. 308 U.S.C. State. 20 Ohlo N. lieber. 73. U. Qualifications. 423-People v. Cal.56 Wash. Fla. 120. Ohlo-State v. Starling.S. 69. 340. 331.L. a discretion in these respects.

86.S. Mass. Ala.S. 42 So. Coulter.E.88 It is not unconstitutional for the court to delegate the task of selection to the jury supervisor..-State v.-State v. D.-State v. 87. 194 Wis. 25. 208 N. Jefferson. State. 369. Cr. and observable command presence. 704. 94. 769 S.-U. 9 Clerks and prosecutors Absent any showing that any judge delegated or otherwise avoided his responsibility with regard to ultimate selection of grand jury forepersons and deputies. 298 Or. Or. age. 485 F.95 h. 116 Mass. and particular duties devolve on him distinct from those of the other members of the grand jury.87 and it has been held that the judge of a court of general jurisdiction has inherent power to appoint the foreman and that this authority is not affected by the custom of permitting the members of the grand jury to elect him. 82. a foreman 80. . l8. 95. 246. 177.~8A C. Ginsberg.S. 27. 89. 91.Fla.Supp. Collins.. Wis. 167 Minn. Ala. Fed..W. 208 N. Ga.E. 136 Iowa 89. Criteria Criteria used by empaneling judge to choose foreperson for grand jury. 25. .Supp. Inc. D. U. the presiding officer of the inquest. 423. 177. 167 Minn.A tion of grand e appointment Discretion Empaneling judge is given discretion in selection of foreperson for grand jury. 129. 167 Minn. 88.S. 104 Miss. 70.-State v. education. 146 Ala.-State v. Ueber. State. 25. rer to change . 269. 699.J.wever. Jenison. 764. Inc.App. Ohio App.2d 1382. v.-Burson v. 410. 555 F. State.P.itutional propower to ders confers a number and ~ss than 12.2d 1371. review denied 695 P. 595.C. 357 Ill. 103 So. La.S. 283.92 Powers and duties. Ginsberg. 96. State. 675-Jobnson v.-State v.W. 25.S. f not less than . 113 N. Ginsberg. 655..S.--Cody v. 208 N.C. and such appointment is sometimes also authorized by statute. Rule 6(c). 40 So.75 ~s a commonor more than ~e. 15I. as foreman. 555 F. Minn. Minn.-U. Jefferson. 81. 90. 171 S. 155. Ill.-Jacobs v. 83. State. 850. Federal Grand Jury In the case of a federal grand jury. to grand jurors cused guaranGatute is void ~s at less than The foreman must be one of the grand jurors and. State.W. 4 Greene 29I. such a Then its mem- The foreman is. 151. 18 U. v.S. 38 Tex. 167 Minn. 61. 177 Ga. 61 So.93 The foreman is the spokesperson for the grand jury.. Tenn. 84.W. Browning-FerriS Industries of Georgia.App. Tenn.C.App.C. Miss. State.89 After a grand jury has been impaneled and a foreman appointed. within the mmon law. 177. 595. 375 .90 Where the foreman regularly appointed is absent at the time action is being taken on an indictment or fails to act through incompetency or other cause. 192 N.. fact that clerks and prosecutors occasionally played role in selection of grand jury forepersons and deputies did not establish improper interference in selection of forepersons. Iowa-Keitler v.S. 331. Cupp. Sanborn.Proc. he is the organ through which its inquisitions and proceedings are reported to the court. GRAND JURIES § 54 pro hac vice may be appointed. 208 N. and the appointment of a new foreman is sometimes expressly authorized by statute. 93. 88I..Cr. 769 S. 484. 178 Ga. 265. Cr. 61 Tenn. 96 The foreperson shall have power to administer oaths and affirmations and shall sign all indict- . if the foreman is excused from the grand jury another foreman may be appointed.86 In the absence of statute designating the appointing power.94 and has the same voting power as any other grand jury member.E. Smith. 229. !.2d 875. 158 La. Ginsberg. 688 P.-Shitley v. 82 No objection to the failure to appoint a foreman can be taken where it is provided by statute that no objection going to the formation of a grand jury can be taken. 356.-State v. the most important of his duties is to report all bills which are submitted to the grand jury and to indorse on such bills. 70 Or.-U. v. the court shall appoint one of the jurors to be foreperson and another to be deputy foreperson.S. 31 Fla. 35. Minn. 144 Ala. 177. 38A C. it appears to be a common practice for the court to appoint the foreman.Ga.W. U.--CommonweaItb v. 4 Miss. 6 Baxt. 103.Ga. and Duties In the case of a federal grand jury.Rules Cr.W. except that the jurors were not drawn in the presence of the officers designated by law. Browning-Ferris Industries of Georgia. were reasonable.J. occupation.2d 875.85 while under other statutes the grand jurors themselves are authorized to make the appointment. in the absence of statute. the court shall appoint one of the jurors to be foreperson and another to be deputy foreperson. foreman who is lIrors.-People v. 534. Tenn. Miss.. need have no qualifications other than those of ordinary grand jurors. 706. Iowa-Keitler v. 173 S. Iowa-State v. Von Kutzieben.W. D.2d 104.-State v.. it has been held that the action of the entire grand jury is not invalidated by the failure to appoint a foreman 81 or by the absence of the foreman appointed. 85.-Peeples v.83 The foreman is to be appointed by the person or persons designated by statute. 4 Greene 29I.-State v. in the absence of the court. whether or not they are true. U.Supp.W.. 217 N. 84 under some statutes the court is required to appoint the foreman. so However.91 Qualifications. Wescott. Minn.-State v. 92. of a foreman. N.

552 F. 715 F.2d 622.E. 99 § 55.S.S. N.Pa.3d 96.S.. 3093. 339. 7.S. v. 18 U. U.-Hobby v. D. 3538.Ed.Supp.S.-State v.S.C. D.Ct. 468 U. U. 468 U. 339.Ed. 18 U. Library References Grand Jury 0=>21. 3093. 3585. In General Discrimination in the selection of the grand jury foreman may violate equal protection. 339. 26 F.E..Ga.Proc.2d 883..S. D.C. 324 N. 104 S. 1217.2d 834. 4.S. affirmed U. 379 S. The fair cross section requirement is inapplicable to the selection of the foreman. a conviction should not be set aside where accused is not a member of the group discriminated against.2d 1333.-Hobby v. N.-Rose v. 452. U. 104 S. Rule 6(c).C.-State v.-Hobby v.82 L.. 253 Ga. 927.Ct. 452. 508 U.S. U. 473 U. U.. 468 U.S.-Hobby v. 3. 97 The foreperson or another juror designated by the foreperson shall keep record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the COurt. and accused generally lacks standing to challenge such discrimination where accused is not a member of the group discriminated against. Rule 6(c). certiorari denied 105 S. N. 339. Fair Cross Section. 1121. Musto. 9 Since discrimination in the selection of the foreman does not violate due process and only violates equal protection. State. 468 U. 555 F. Cofield.82 L.8 The fair cross section requirement does not apply to the selection of the foreman.Rules Cr. appeal after remand 379 S. 622.Ed.S. 3586. D. U. 104 S. 524 A2d 188.Supp.Ed.C. 3093. v. .5 The role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself or invades due process interests.Proc.2d 822. Browning-Ferris Industries of Georgia. 104 S. 323 S. U. 316..2d 739. rehearing denied 115 S. 104 S. 568 F.98 During the absence of the foreperson. 2993.S.E.. 346. 82 L.S. 130 L.Ct.-U.Rules Cr. 2.S. Fed.CA. 2 Only purposeful discrimination vio97.2d 260.J.S. v. U. 357 S. rehearing denied 106 S. 468 U..Ct. v.CA.2d 260. certiorari denied 113 S.2d 260.S. 376 ..J. Thomas. Mitchell.J. N..C.S.S.Ed.. Sneed. Jury Selection and Service Act U.Discrimination.R..Ed. U.CA. 468 U. N. 99.S. U. v.2d 653.Ed. Rule 6(c). 82 L.Me. 443 U. Browning-Ferris Industries of Georgia.-Hobby v. Zant.Ed..~. Abell.. 131 L. In general b.S.2d 697. N. 2433. 104 S.S. Fed.C.-Hobby v.-State v.S. U.Ct. Tenn. 82 L.S.Ed. U..2d 883 and 104 S.C.S..Proc. (2) Method of selecting grand jury foreman that meets racially neutral standard must insure that all grand jurors are considered by presiding judge for his or her selection and that selection be made on racially neutral basis.C.N. 8.Ed. N. F. 1. Inc. v.C.Supp. 339. 595.§ 54 GRAND JURIES 38AC.Ct.3 and criteria may be employed even if they havera disproportionate impact.C. 324 N.Supp. Fed.. 324 N. 10.Ct. Ga..-U. 124 L. certiorari denied Dentico v. 123.2d 260. 452.Supp.S.2d 260.lO This is true at least where selection of the foreman does not involve the selection of an additional member of the grand jury. 61 L. Cofield. N. Ramseur.C.2d 661. N.2d 801.Ct. 87 L. 157-U. 595.. 729 F..Fed.. 468 U.C. 468 U. denial of habeas corpus affirmed Ingram v. D. 18 U.S. 68 AL.Ct. 947. U.Ct. 297.S.Ed.E.S.Ed.-U. .Ct. Cofield. 87 L. v.Rules Cr.-U.7 The due process concern that no large and identifiable segment of the community be excluded from jury service does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury. Inc. U. 555. 1444.98. lates equal protection.6 Discrimination in the appointment of grand jury foremen does not impair accused's due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives. 99 S. 339.Ga. 6.-Ingram v.Ct. U.S.2d 323.2d 1097. 320 N.-State v. U..C. 379 S. U.C.C.S. State constitutional provision (1) Equal protection provision of state constitution requires that all grand jurors be considered for appointment as grand jury foreman. 3093. U. Research Note Discrimination and fair cross section requirement as affecting selection of members of grand jury are treated supra §§ 13-19. 106 N. 82 L.3d 1047. Geller. 5..2d 260. N. 82 L.S. 20. 104 S.Ct. Aimone. 9. 473 U.Ed.C.S.E.1 Purposeful discrimination against blacks or women in the selection of federal grand jury foremen is forbidden by the Fifth Amendment.S. 115 S. 3093.C.. 3093.2d 834. 545. 1217.Ga. CA. 540 F.C. 1137. 82 L. but generally does not violate due process. 911. and ments. certiorari denied Ingram v. rehearing denied 36 F.S. Showing of violation a.Ct. denial of habeas corpus affirmed 983 E2d 1215. Discrimination in the selection of the grand jury foreman may violate the constitutional guaranty of equal protection.S.S.S.2d 834. 4 Discrimination in the selection of grand jury foremen does not threaten the due process' interests of accused.Ed.S..S. a.S.J. the deputy foreperson shall act as foreperson.

339. test sample must be large enough to convince court that any disparity is not due to chance or inadvertence.S.E. 443 U. 485 F.2d 653.-U.C!. N. Moore.Ed.S. Mitchell. size of sampling. 932. ment in selection of grand jury forepersons and percentage of same group or class represented in office of grand jury foreperson is fla. 929 F. Fortenberry. (2) "SignificaDt period of time" was not limited to passage of act. 461 U. tion. rehearing denied 691 F.-Rose v.S.-Bryant v. 13.S.S.2d 1373. 686 F. 274. 61 L..S.Ct 1412.S. 545.S. certiorari denied Sample v. U. 324 N.3d 96.Ed. Miss.-State v. 4 grand· jury ocess interreman of a !ant to the ation in the ~ fundamennvades due he appointimpair acIg that the 'e of experiess concern of the come does not ~rtains only among the leral grand In order to show that an equal.2d 845.. 443 U. 13 However.2d 316. U. 443 So.-Rose v. affirmed 1996 WL 417664. 502 U. 274. 105 S. 722 F.S. 106 N.2d 447. some authorities suggest that no one can raise an equal protection challenge unless the foreman's duties are more than ministerial. as written or applied.Ed.5(Miss.2d 622. 245. a selection procedure that is susceptible of abuse or is not neutral supports the presumption of discrimination raised by the statisti- oes not ap- 11. 84 L. D. 82 L. 339. )f the foreIlly violates not be set . 17.Tenn. 898. Mitchell. protection violation has occurred in the context of grand jury foreman selection. to' so limit relevant period would be to hold that defendant failed to state prima facie case simply because state had eliminated one admittedly discriminatory step in its foreman selection process. 508 (2) Court should compare proportion in grand jury panels of the In cases in which statistical difference between general population of group allegedly discriminated against to the proportion called to serve particular group or class allegedly singled out for discriminatory treat· as foremen.-State v.C. U.2d 1215. 404 S. Mitchell.C!.S.2d 512. appeal denied. C.fla. rtiorari denied ing denied 106 habeas corpus ied 36 F.. certiorari denied 112 S. and without inquiry into whether discrimination affected the outcome. .. 555 F.. accused generally must show that the procedure employed resulted in substantial underrepresentation of an identifiable groUp.2d 553. 12.S. 983 F. 929 F. the role of the foreman is ministerial. 99 S. 377 . 508 U.S.2d 305.2d 260. U.2d 226. v.S.J.2d 1067.S. singled out for different treatment under the laws.Ed.east where ~ the selecdjury. 2993.-Guice v.2d 739.. distinct class. where accused is not a member of the group. Puckett. accused's equal protection challenge should be evaluated without reference to whether the foreman's duties are ministerial.2d 739. Tenn. C.C!.-Rose v. 1034. 1412. 82 Sample size To present prima facie case of discrimination in selection of grand jury forepersons. State.2d 752.Ed.S.2d 226.-Johnson v.J. Tenn. 339.E. 502 U.S. U. 82 U.S. 947. 1034. Beyer.S.. Tenn. Population (1) Although the preference is for proof based on eligible popula.Ed. 545.-State v.-Hobby v.2d 795.S.S. 77 L.. Tennessee. . certiorari denied 113 S. . peri· U. Ramseur. Aimone. dismissal of habeas corpus affirmed 1994 WL 568388. 116 L.2d 3.C!.. ods of time before and after such venire change would not be treated separately for purpose of determining prima facie case. 357 S.S. the degree of underrepresentation must be proved. 2993. appeal after remand 379 S.Ga. N.2d 1067. Browning-Ferris Industries of Georgia.7.S.ll Thus.-Andrews v. 124 L. Lack. nay be emlate impact. proof of percentages in the total popUlation is acceptable. 297.C!.S. 468 U. IS Finally. court must look beyond figures to other criteria (3) Relevant population included disqualified grand jurors from such as number of years involved. Wainwright.Supp.-State v.2d 78. 468 U. 452.-Sheffield v.C. 545.D.S.S. 123. U. 82 L.ALa. " 130 L. I7 Next. 104 S.2d trial of habeas '.C. Period (1) Absent sufficient evidence that selection process materially changed following elimination of allegedly racially biased venire. 2993.2d 739. M. 116 L. 2433. v. 470 U.Ed. 702 F.. 470 U. 12 Where accused is a member of the group.8A C.A.J. C. U. 14 Discrimination against blacks in the process of selecting a foreman cannot be corrected by the selection of a black person as foreman by a racially discriminatory method.S. U. 634. 443 U. affirmed 1995 WL 66563. 2433.Afla.E.S. 595..C. 99 S. evidence of a greater disparity is reqnired when accused's case rests on total population figures. denial of habeas corpus affirmed Ramseur v. 84 L.C. 16.2d 276. Inc. rehearing denied 726 F. Jenison. I5 h.Supp.I6 The :first step is to establish that the group is one that is a recognizable. Cofield. Whether accused mUst be member of group see supra subdivision a of this section. 61 L. State. accused GRAND JURIES § 55 generally must show that the procedure resulted in suhstantial underrepresentation of an identifiable group. N. 524 A2d 188. denial of habeas corpus reversed Johnson v.C!. 715 1585. D. 320 N. howey· er. the group . 680 S. 61 L. 82 . rehearing denied. and number of class in g~neral population.S. U. 157-U. by comparing the proportion of the group in the total population to the proportion called to serve as foreman over a significant period of time.Ed. N.~h selecting official had to choose. Criteria 1ed. U.C.2d 795 and 105 S.C!.S. 18. 3093.-Johnson v. Showing of Violation In order to show that an equal protection violation has occurred in the context of grand jury foreman selection.2d 834. (3) Crucial period was when the new jury selection act went into effect.J. affirmed 862 F.S. 99 S.Ed.C. 898. 339.-U.Ed.). 15.C!. U.. Itil IIII' . certiorari denied 112 S. certiorari denied 103 S.Supp. 82 U. 329 N. McKay.and 14.Ed. 655.Ed.W.C!. 339. arguably substantial. 38A C. U. 2096. Tenn. accused lacks standing to challenge the discrimination. Puckett.C. which directed nondiscriminatory random selection process for grand and petit jurors.S. 404 So.C!.

Ga.2d 293. 932. where the grand jury serving a court has been discharged for the term. unless authorized by statute.-Braxley v. 61 L.21 The mere fact that a state has a history of discrimination is insufficient to establish a prima facie case. 658. 23. 627 S. 242. 32.Y. 2993. 443 U. McCauley. Va. 898. 515. at the direction of the court.C.2d 276. Tenn.Ct.Ed. 929 F. 1. 49 S. 815 F. Morris.S.).2d 635.20 although there is authority to the contrary. U.A.-Johnson v.S.S.28 cal showing. C..2d 384-Bryant v. 545.Ct. 233.S. 274. 484 U. certiorari denied 111 S. Tenn. so as to empower them.2d 739. 2993. Fla. N.Ct.§ 55 GRAND JURIES Reswearing.S. rehearing denied 691 F. certiorari denied 103 S.27 However.-U. 21.25 § 56.Ed. 545. b.-Allen v. 116 L.501 U.Ct. D. Garrett.29 A grand jury may be lawfully sworn by one who is merely a de facto officer. 370. Tex. v.S. 851.S. and lack of evidence that jurors acted in other than racially neutral manner. 115 L.A.. 22. 26 U. 970.S.-Rose v.2d 1373.-People v. Phillips. and in the absence of statutory directions the mode of administering the oath is a matter of practice. 2096. 461 U.Ed. 906. Oath of Jurors a. some stat- Selection by grand jurors Finding that state rebutted prima facie showing was sufficiently supported by evidence that foreman was selected by fellow grand jurors. C.S. 201 U.Fla.Ct.C.2d 305.2d 739. Alternative showings Defendant may establish prima facie case of racial discrimination in selection of grand jury foreman either by showing that selection procedure was not racially neutral or that relatively few blacks had served as foren:ten for substantial period in the past. 77 L. Ill. certiorari denied 103 S. 4 Leigh 674. 182. State.-Rose v. to perform the duties of a grand jury.-Ellis v. Weible. 766.2d 977. 28. 1175.S. Ga. 515.Ct. habeas corpus granted Garrett v. 443 U. certiorari denied 103 S. State. Phillips. 31 Va.E.Cr.-Hick v.Ct. since district judge knows race and sex of grand jurors prior to selecting grand jury foreperson. 330.B.2d 1067. 652. 147 Miss. 1208. 790. 501 U.S.2d 752.Ed..C.S. U. 876.-Godbee v. Henkel. c. Mo.-State v.B.2d 512.Ct. 898. 2804.S. 43. Library References Grand Jury <S=>22. 1. 26 S. 29. 370. certiorari denied 112 S. 328 N. Ill. U..30 Grand jurors must be sworn and the oath is to be adminis· tered by the officer designated by law. State. Mode of Administering The form of oath required of grand jurors must be substantially observed. 652.19 Thus. 97 Fla. 40 Tex. 443 U. 107 L.2d 512.5(Miss.E.S.E. 61 L. 77 Ill. 686 F. 378 . 61 L. 30.2d 166..-Rose v.A. 201 U. 99 S. 2096.23 The prima facie case may be rebutted by evidence that neutral criteria were used.P. 504. 888.Ed.2d 293. 99 S.C. 77 L. Fortenberry.Ed.S.W.C. Commonwealth. It has been held that grand jurors when recalled need not be resworn. 120 So.Ct.W. 141 Ga.2d 19l.S.S. 722 F. 99 S.-State v.-Hale v. 143 Ga.E. In general b. 98 L.2d 739. 85 S. Wainwright. 81 S. certiorari denied 111 S. State. lawfully administer the prescribed oath to the grand jury. Mitchell. 399 S. 419. N. rehearing denied 691 F.Fla. State. 686 F. 81 S. 256 Ill.. it has been held that a prima facie case requires a showing of three things. U. C.Ed. Tenn.2d 977.La. Garrett. Record of oath a. 25 Ohio N. U. certiorari denied 110 S. Hohnan. 612.2d 305. 545. Miss.N. 502 U. 2804. 141 Ga.-Bryant v.Y. 50 L.Ct. 38A C. rehearing denied 726 F.-Walton v. any officer authorized to administer oaths generally may.-Hord v. mode of administering c.S.Fla. Ga..A.Ed.22 Only if accused establishes a prima facie case does the burden shift to the government to rebut that prima facie case.Ed. 564.S.24 Rebuttal testimony should be viewed with a great deal of scrutiny.32 There are. 484. In General In the absence of a statute designating the officer to administer the oath. N. 510 F. 20.Ed.J.Ed. 399 S.S.S. 493 U.-Hale v. 43.-Godbee v.S. 19. 459 U.-Gnice v.Ed. 3 Ohio Law Abs. certiorari denied Jones v. 26. 115 L. U. 328 N.Ed.Ct. U. U. C. 112 So.2d 1373.5(Tex. State. Who may administer oath. 876. without being again sworn or charged. 873 F. the court. 108 S. 199. 25. and the court has finally adjourned for the term. 1208. Selection by judge Selection procedure by which district judge impaneling grand jury selects forepersons is susceptible of discrimination. however. Lynaugh. 100 N.S. Form of oath.Supp. Form of Oath. U. 674. Wainwright. It is essential to the legal existence and compe- The form of oath administered to grand jurors is of ancient origin31 and generally remains substantially unchanged. 27. 2993. 50 L. 461 U. 26 S. cannot require the attendance of such discharged jurors.S.).2d 226.S. 31.Ct.2d 509. Henkel.Ct.-State v. Mitchell.-Gay v.. N. Puckett. 208. Mitchell. 24.A.S. Ohio-State v. State. tency of a grand jury that all the jurors be sworn. 932.2d 830. 74 L..

607.33 The form of oath. 49 Under other statutes.Va.51 and that a substituted juror is inistering lUst be substan. Ill.RAth 964. 65. 650. can. must be substantially observed.S. W. 114 So. 50 L. where surplus jurors have been dismissed.ed 103 s.W. 38 So. 1182-People v. 142.S. 1083.39 Where the record states that the grand jury was duly sworn. However. 123 Mo. Dohm. 47 Under some statutes.M. 50 L.52 Hun 33. 175 Ark.2d 535. Record of Oath The administration of the oath to the grand jurors ordinarily should be shown by the record. 111 Tenn. n. 259 N. Dohm. 423. 3 Ohio Law Abs.-State v.E. 267 N. 64 So. 105 N. State.Ed. 108 S. or from the fact that the court charged the jury and sent it to its labors. 47. summoning. rehearing A court having power to excuse or discharge a grand juror after the organization of the grand jury has power to substitute .-Brown v.n. 568. Weible. La. 46. Ala. App. 106 N.-Posey v.W. the method to be used is within the sound discretion of the court. anted Garrett v. 10 Ark. 37. State. Iowa-State v. 286 Ill. provision is made for the selection. 164 La. 493. the presumption is that the legal oath was administered. .38 The swearing of the grand jury cannot be presumed from the fact that the record states that the grand jury was impaneled.2d 104. some authorities hold that substitution is improper.50 Some authorities hold that the substitution of jurors is improper. 607. 45. 459.Va. 618. Henry. U. some stat- was sufficiently by fellow grand ner than racially certiorari denied j The record should show that an oath was administered to the grand jurors. 273. 772.S. Ill. Green. 2 AL. hen recalled ~e the grand 'ged for the ned for the .S.-Ex parte Lawler.W. 33.-Roe v. 10 Ark. 141.-State v. 820.-People v.S. State. 49.-People v. La. Ark. 191. Research Note Completion of defective panel of potential jurors is considered supra §§ 49. Iowa-State v. 38A C.40 and that it was administered in the mode prescribed by law.ariett. Okl. 746.E. 107.-State v. 20. It is provided under some statutes that if a grand juror has conscientious scruples against taking an oath he may make affirmation in lieu thereof.J. N.8A C. Ohio--State v. drawing. that in substituting new jurors the court acted in conformity with the statutes. 121 N.-State v.46 It will be presumed. 259 N. 102. 428.-Commonwealth v. 43. In the absence of statutory provision. 105 AL. 38. Apart from any statutory provision. Mass.W. Lawler. 197 La.2d 801.App. 597. 192 N. 48. 34. certiorari denied 735 P.E. Tenn. 42. Rose. t U. 43. 250 U.W. Miss. 39. 766. Miller. State.S. 36.2d 1200. a court having power to excuse or discharge a grand juror after the organization of that body has power to substitute another qualified juror in his place. 571 P.-Grand Jury of Seminole County v. Smith.2d 801. 35 Mode of administering oath.M. 2 So. 69 S. 208. 51. 41. Wis..charged jubeing again s of a grand Affirmation. 130 La. 63 L. 766. 735 P. 557. 9 Mass. 86 Miss.Ct. 40. utes prescribing its form. and impaneling of additional grand jurors to supply a deficiency in the number of grand jurors resulting from discharge or excuse of jurors or other causes after the organization of the grand jury. this power of substitution is sometimes expressly conferred by statute. 4 N. 58 So. State.cribed oath r be lawfully ~to officer. 35. 615. 3 So.N. 593. 38 So. whether that required at common law or by statute.1. 141. 480 Pa. Ill. Angus. Dye. 171.tatute.Y. 148. Substitution of Jurors 276. 105 N. 774.E. 576. Law Abs.-Sharp v. 998. 50.M.-Turner v.Ed. Library References Grand Jury <$=>12. 161 N.-Commonwealth v. Hurst. Mo.86 Miss.W.R. 44. Ala. 423. N. 357 Ill.J. lieber. a grand juror may be sworn by holding up his hand instead of by laying his hands upon the Gospe1. 185 Ala.48 and such members should be summoned. 324. substitutes should be taken from among the remaining members of the panel. 37 ing the offiuthorized to direction of . 635. 324.S.45 Such provisions have been held directory rather than mandatory. Levinson. the mode of administering the oath is purely a matter of practice. Ark. State. 221 Wis. error dismissed 39 S. 329 Ill. 42 § 57. new names should be drawn from the jurybox. in the absence of evidence to the contrary. Ark.Y. 74 S.-State v.-Posey v. 3 S. Filling vacancies from bystanders Miss. 389 A2d 1062.-Brown v. Apodaca.-People v. . 39. 331. directions the tice.2d 23. 30 c. Pa.34 GRAND JURIES § 57 another grand juror. 379 . 25 Ohio N.Ed. 44 Under some statutes.P.-People v. 83. Dear. Phillips.E. Owens. 264 Ill. 43. 999-State v. State. 70 W. 99 S. 43 In the absence of any statute prescribing the course to be pursued in procuring jurors to fill vacancies. 41 The objection that the minutes do not show affirmatively that the foreman of the grand jury which found the indictment was duly appointed and sworn comes too late after plea and trial.36 In the absence of a statute to the contrary. md jurors is ins substanr.2d 1156. 787. 564. 50.-State v.

58. 61. State of Georgia. Bonfils v. State. 213 Ga. 64. 66 P. According to some authorities. v. 67.C.56 Such authority is sometimes conferred by statute.S. 88. 3 Ohio Law Abs. Ala.57 The fact that one summoned to act as a grand juror.A. 389 A.53 The court may direct that alternate jurors may be designated at the time a grand jury is selected. 1068. rehearing denied 76 S. 18 U. according to some authorities. 77.D.. 26 P.Rules Cr.-Osbom v. N.-People ex reI.-People v.A. 480 Pa.Supp. 167.S. State. but who fails to appear until the grand jury is impaneled. 88 C. 55. Bonfils v. En masse impaneling of alternates proper U.C!. 53. 62. 17. 38 So. Fed. 88. Weible.S.55 The fact which is to constitute the ground for challenge must. Pa. 666. 822. Iowa-State v. 59 A challenge is a preliminary exception or objection taken to the jurors summoned and returned to serve as grand jurors.S.J. 233. 233. 154 Ala. and does not affect the legality or competency of the grand jury as organized. 56. Howard. 238. 380 . 66 P.Proc.S.Proc.52 Federal grand jury.S. 161.2d 1062. Cal. District Court of Second Judicial District.L. Mallard.-McClary v. 100 L..Rules Cr.-u. Colo. Travers. 75 Ind.Cr.Ed.61 The right of challenge is not a proceeding under which the trial judge may be himself put on trial. District Court of Second Judicial District. Rule 6(c). and charged. the denial of which by the court renders the grand jury incompetent to sit on the WESTLAW ELECTRONIC RESEARCH See WESTLAW Electronic Research Gnide following Preface.350 U. 943. 44.Rules Cr. 184 N.W.A. 447. Miss. CaJ.55 § 58.C.4th 964. 76 S.C!. 59. 63 Challenges to grand jurors are divided primarily into challenges to the array and challenges to the polls. Fed. 766. 10 Iowa 101. or required to pass on or consider the truth or falsity of charges of bias. 66.S. Levinson. 29 Colo.N. 57. § 59. U. 45 So. In the case of a federal grand jury.67 It has been held that the right to be present at the impaneling of the grand jury and to make a challenge either to the polls or to the array is a substantial right. 54. 100 L. Ind. 86 Miss.-Commonwealth v.Proc. The right to object to a grand jury presupposes an opportunity to exercise that right. 676 F. 18 U.-People ex reI.2d 29. Ohio-State v. if the court permanently excuses a juror. OBJECTIONS AND CHALLENGES TO GRAND JURY OR JUROR In General A challenge is a preliminary objection taken to the jurors summoned and returned to serve as grand jurors. 260.S. M.C. 38A C.R.60 It is a right only to object and not to select.. 26 P.§ 57 GRAND JURIES Library References Grand Jury CSo>12. not even a de facto juror. Rule 6(c).S. 83. 667.2d 787. 20. 750.C. is sworn as a grand juror and then excused without retiring with that body is a mere superfluous act.C. Fed.S.-Compton v. Increasing Number of Jurors After a grand jury has been organized the court may..273. 88 C. Ala. Colo. 143 Tex. 324.Ed. 29 Colo. Ga. 83. 85. 158 S.54 Alternate jurors in the order in which they were designated may thereafter be impanelled if jurors are permanently excused.-People v. 23 So.-State v. Travers.62 nor 52.F1a.58 H. 117 Ala. State.E.-Wright v. 114 S. 18.P.66 Statutes sometimes require challenges to be supported by affidavit setting forth the ground of challenge. increase the number of jurors. 2 A. as a general rule. sworn.-Reece v. 60. 564. and charged. Rule 6(g). or unfairness made against himself. 350 U. the court may impanel another person in place of the juror excused.-Posey v. 18 U.. is the court obligated to pass on the guilt or innocence of accused. 297. Tex. Library References Grand Jury CSo>17. State. sworn.E. 141. be established in the manner in which other facts are proved. it is proper for the court to increase the number of grand jurors within the prescribed limits or to allow a grand juror to join the grand jury after it has been impaneled. 25 Ohio N. 1068. State. 56.54 The burden is on the person challenging the grand jury to establish his cause of challenge. Jones. 63. partiality. opinion conformed to 91 S. 65.

65 ground for stablished in Il"e proved. 1068.P. 2088. 82.-Commonwealth v. In General as a grand grand jury sworn as a 'etiring with nd does not ~ grand jury A challenge to the panel or array is a fonnal objection to the entire panel of grand jurors.. 45 N. 119 S. 766. Weible. Fed.75 and that this right arises under common law.-State v.N.:A C. 248 Pa. At common law a challenge to the array of grand jurors was founded on some partiality or default of the sheriff. certiorari denied 103 S. ill.66 s to be supe ground of However.76 or is a constitutional right.-State v. Ward. 928. Weible.-Commonwealth v. certiorari denied 103 S. N. drawing. Grounds of Challenge Where statutes provide that a challenge to the array of grand jurors may be interposed for certain enumerated causes only.D. and return of the panel is concerned. 130 So. Mo.S. 379.77 h.69 GRAND JURIES § 60 lenge the array altogether. Fed. 77 L.57 N. State. Millbouse. 353. 76 NJ. Burns International Detective Agency v.S. 928..7s Some authorities do not recognize the right of challenging the array.L. 18 U.Proc.-State v. Warner. Pa.J.W. N. summoning.W. 3 Ohio Law Abs. 69. Commonwealth. 600. 188 Conn.Super. or summoned in accordance with law. Grounds of challenge a. 29 Colo.Ed.-State v. 453 A2d 418. 74. 211. 206. 188 Conn.Super. N.so The right to challenge the array does not include the right to subject a grand jury or grand jurors to a voir dire. and summoning grand jurors is prescribed by statute. 564.-State v. Second Judicial Dist Ct. 255 Pa.D. Even in case of investigating grand jury Pa. partiality. Green. 766.79 Some statutes have either abolished the right to chal68.-State v. 222 Ala. 626. 57 N. 453 A2d 418. Pa. Avcollie.-Commonwealth v.-State v. 73. 584. Millbouse.P. Sl Investigation of a panel is proper only if there are reasonable grounds to suspect that the panel is improperly constituted.W. Mo. Richetti. 255 Pa.68 and that it is immaterial that the challenge of accused might have proved ineffectual. Nev.P. nor does it undertake. 3 Ohio Law Abs. 70.Rules Cr. ed primarily mges to the llenging the .Ct. 206.-State v. 9.73 and a right to challenge the array 74 on the ground that it was not selected in accordance with law. 71. 83.2d 277. if not previously determined upon challenge. Seidler.CA 84. Kelly.Rules Cr. or his under officer.-People v. Polof. 142. 57. to pass on the guilt or innocence of accused. App. 564. 1015-State v. 975. case. Vt.-People v.E. 79. 25 Ohio N. 626.S.W. 726.S.D. 726. 224 N.2d 299. drawn.S. Colo. 576.. the court is not called on.83 A motion to dismiss the indictment may be based on objections to the array. is a matter within the discretion of that officer.S. Vt.. 386 A2d 581. 57 N. In the case of a federal grand jury. 399. Avcollie. 447. he guilt or A challenge to the panel or array is a formal objection to the entire panel of grand jurors summoned and returned. 81. 78. 77 L. 26 AL. 161 N. Walla. Ohio-State v. King. 73 Pa.-State v. 76. 576-Gibbs v. 142. the array may be challenged on the ground that the grand jury was not selected. 65 S.J. 87. 83.Proc. Ohio-State v. 2088.S. mere irregular- le.N.-Brown v. N. Rule 6(b)(1).2d 330. 386 A2d 581. 267 S. 386 A2d 581. 60 Vt. objections to departures from the statutory directions may be raised by challenge to the array. Doyle. 17. 80. Rule 6(b)(2). where. 224 N. as at common law. 63 P.S.54 proper for jurors IW a grand . 14 A 187. 72. Obio-State v. 60 Vt.72 It has been held that accused has the right to challenge a grand jury on the ground that it was improperly selected.85 A challenge to the array will lie for bias.L.Super. 91. has been authority is ~and § 60. 427. 70 A 342.J. of Second Judicial 3 Ohio Law Abs. the courts have no power to allow challenges on other grounds. 26. 75. Pa. 119 S. In general b. 211. the manner of forming a grand jury. 255 Pa. 25 Ohio N.-State v. Walla. Library References Grand Jnry e->16.-Mullins v.S. Weible.-State v. 14 A 187. 342 Mo.Super. challenge. 461 U.S7 However.86 Where the method of selecting. 208 P. 24 AlaApp. 86. 165 Mo. Pa. 321.CA 85.82 Federal grand jury. Conn. so far as the selection. or irregular action on the part of the sheriff. 342 Mo. 424.D. affirmed 46 N. 83.Ct. 38A C.J.J.D. 46 Nev. Walla. 211.-William J. 461 U. Millbouse. 726.L. 206.D.Ed. Conn. 381 . 78.W. Panel or Array a.2d 299. of Second Judicial Motion to qnash venire Ala. 224 N. 564. 70 The basis of a challenge to a grand jury panel is that something has been done or omitted to the prejudice of the substantial rights of the challenging party.W. 3 Ohio Law Abs. Ward. 18 U. certiorari denied 130 So.R. Lack of Notice Fact that defendant was not given notice that grand jury was considering her case did not indicate grand jury was not selected. present at d to make a Ie array is a by the court to sit on the 77. 530. State. Mo.N.71 However. 329 ill. 527. 25 Ohio N. 766. or restricted the grounds of challenge within very narrow limits.-Commonwealth v. 374 A2d 1299.W. it has been said that it appears doubtful whether the right to challenge the array existed at common law.

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