9.4 The Grand Jury

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.4 THE GRAND JURY

9.401 General Functions.

A. Regular Grand Jury. Regular grand juries consider bills of indictment prepared by the commonwealth's attorney to determine whether

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there is probable cause to return "a true bill." This function is to be performed solely by a regular grand jury. ¹²⁸

The function of the grand jury is to accuse, not to convict. An indictment does not even create a presumption of guilt; its charges must later be proved before the trier of fact, beyond a reasonable doubt. To indict, the grand jury need not act by unanimous vote. It does not hear both sides but only the prosecution's evidence, and it does not face a problem of choice between two adversaries. Its duty is to indict if the prosecution's evidence, unexplained, uncontradicted, and unsupplemented, would warrant a conviction. If so, the grand jury's indictment merely puts the accused on trial. ¹²⁹ The Fifth Amendment to the United States Constitution guarantees the right to an indictment by grand jury for federal capital and "infamous" crimes; however, this guarantee is not applied to the states through the Fourteenth Amendment. ¹³⁰ Each state may determine whether its judicial system will use a grand jury and the organization and procedure of that grand jury.

Special Grand Jury. A special grand jury investigates and reports on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency, or official thereof. ¹³¹ This function may be exercised either by a special grand jury or by a regular grand jury that requests the court to impanel it as a special grand jury. ¹³²

B. Secrecy of Proceedings. Traditionally, grand jury proceedings have been secret for five reasons: (i) to protect jurors; (ii) to encourage complete freedom of disclosure by witnesses; (iii) to prevent the escape of the accused if he or she is indicted before arrest; ¹³³ (iv) to prevent subornation of perjury in an effort to disprove facts there testified to; and (v) to protect the reputations of persons against whom no indictment is found.

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In Virginia, every commonwealth's attorney, special counsel, sworn investigator, and member of a regular, special, or multi-jurisdictional grand jury must keep secret all proceedings that occur during sessions of the grand jury, unless required by the court to testify in a subsequent perjury prosecution of a witness who appeared before the grand jury. ¹³⁴ However, there is no provision to enforce secrecy upon witnesses summoned before a grand jury that prevents them from discussing publicly events occurring in the grand jury room. ¹³⁵

9.402 Regular Grand Juries: Selection and Operation.

A. Duties. The grand jury has the duty to inquire of and present all felonies, misdemeanors, and violations of penal laws committed within its jurisdiction, but it cannot indict for criminal violations where the punishment is a fine of $5 or less. ¹³⁶ The grand jury must consider indictments and endorse them "A True Bill," namely, one found upon the concurrence of four or more jurors, or "Not a True Bill." ¹³⁷ After a regular grand jury has concluded its deliberations on bills of indictment and made its return on the bills, the court must ask if the grand jury recommends that an investigative special grand jury be impaneled. ¹³⁸

B. Term. There must be a regular grand jury at each term of circuit court of each county and city, unless the court, on the motion of the commonwealth's attorney or with his or her concurrence, finds that it is unnecessary or impractical to impanel a grand jury for a particular term and enters an order to that effect. Whenever the number of cases to be considered by the grand jury at a given term is so great as to hamper the intelligent consideration of the cases by a single grand jury, the court may order two or more regular grand juries to be impaneled to sit separately at the same or a different time during the term. Whenever a regular grand jury has been discharged, the court, during the term, may impanel another regular grand jury. ¹³⁹

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C. Selection and Summons.

1. Procedures. Annually, the judge of the circuit court of each county and city furnishes to the clerk a list of at least 60 and not more than 120 persons, 18 years of age or older, qualified to be grand jurors. ¹⁴⁰ Not more than 20 days before each term of court begins, the clerk selects not fewer than five nor more than nine persons from this list, the number to be fixed by order of the court, and summons them to appear at the first day of the term. ¹⁴¹ If fewer than five persons appear in response to the summons, the court may order the deficiency to be supplied from the bystanders or from a list furnished by the judge to the sheriff or sergeant. ¹⁴² The court thereafter appoints one of the jurors to be foreperson. ¹⁴³

2. Effect of Irregularities. No irregularity in the time or manner of selecting the jurors, or in the writ of venire facias, or in the manner of executing the writ, vitiates any presentment, indictment, or finding of a grand jury. ¹⁴⁴ Those irregularities that relate only to the mechanics of summoning and impaneling the grand jury will not invalidate its findings. Errors concerning the composition of the grand jury and the qualifications of grand jurors are discussed in paragraph (D) below.

3. Constitutional Challenges to Selection System. A motion to dismiss an indictment may be based on a constitutional objection to the manner in which the grand jury was selected. ¹⁴⁵ The accused has a constitutional right to a grand jury drawn from a representative cross-section of the community, including persons with varying degrees of training and intelli-gence. ¹⁴⁶ Moreover, the accused has a constitutional right to a jury selection process free from discrimination based on race, sex, or national origin. ¹⁴⁷ The most difficult problem associated with constitutional challenges to jury selection procedures is the problem of proof. The courts have held that the mere fact that no one of the defendant's race or class sat on the grand jury that

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indicted him or her is not, standing alone, proof of discrimination; ¹⁴⁸ instead, there must be proof of purposeful discrimination in the selection process. ¹⁴⁹ However, circumstantial evidence can be used to prove purposeful discrimi-nation. ¹⁵⁰ In one case, the United States Supreme Court held that the defendant had made out a prima facie case of discrimination by showing that over a 10-year period in which the county's population was 79.1 percent of Mexican-American descent, only 39 percent of the persons summoned for grand jury service were of that ethnic group. ¹⁵¹

Timely objection to the composition of the grand jury on constitutional grounds invalidates the conviction even though there was no similar problem with the trial jury and even though guilt was established beyond a reasonable doubt at trial. ¹⁵² Federal habeas corpus is available in those cases to challenge the conviction. ¹⁵³ However, failure to object to the grand jury selection process before trial precludes challenges to the system by way of federal habeas corpus, absent a showing of "cause" and "prejudice." ¹⁵⁴

4. Qualifications Challenges. A motion to dismiss a grand jury indictment may be made on the grounds that one or more of the jurors were not legally qualified to serve. ¹⁵⁵ Objections to the qualifications or competency of a particular grand juror must be made before a plea on the merits, ¹⁵⁶ but a court, in its discretion, may permit the plea to be withdrawn in order to allow an objection to be raised. ¹⁵⁷

D. Number and Qualifications. A regular grand jury consists of not fewer than five nor more than seven persons. ¹⁵⁸ Each grand juror must be a citizen of Virginia and must have been a resident of Virginia for one year and of the county or city in which the court is to be held for six months. He or

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she must be 18 years of age or older and in other respects a qualified juror. ¹⁵⁹ A naturalized citizen can serve as a grand juror. ¹⁶⁰ An inhabitant of a city cannot serve on a county grand jury unless the county's circuit court has jurisdiction that extends to that city. ¹⁶¹

Any person who has legal custody of and is responsible for either a child 16 years of age or younger or a person having a mental or physical impairment requiring continuous care during normal court hours may be excused from jury service upon his or her request. ¹⁶²

There are also several common-law disqualifications. Aliens and those who were not returned by a proper officer, or at the request of the prosecution, are disqualified. Those convicted of treason, of a felony, or of perjury are also disqualified. However, one who asks to be included on the grand jury or has another ask for him or her is not disqualified unless the reason for asking is corrupt. ¹⁶³ No Virginia cases are on point, but the general rule seems to be that kinship with the accused, bias, prejudice, or opinion regarding the defendant, or an interest other than a pecuniary interest in the outcome does not automatically disqualify a grand juror. ¹⁶⁴

The entire grand jury is dismissed when one member of a grand jury finding an indictment is legally disqualified, and the indictment returned by that grand jury is quashed. ¹⁶⁵ However, the court may direct another grand jury to be summoned and impaneled at the same term of court. Indictments found by this second grand jury are valid. ¹⁶⁶

9.403 Regular Grand Juries: Hearings and Deliberations.

A. Oath. The foreperson is appointed by the judge and sworn first in the presence of the other grand jurors, who are then sworn. ¹⁶⁷ The foreperson and, through him or her, the jurors, must swear to make a true

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presentment, without prejudice or ill-will, and not to refrain from presenting through fear or favor. ¹⁶⁸ Any witness to testify before the grand jury can be sworn by the foreperson. ¹⁶⁹ If the...