Impaneling the Grand Jury

Impaneling the Grand Jury

The indictment discussed so far has to come from somewhere, and for a federal felony the source is a grand jury, a body of citizens that reviews evidence of suspected crime and decides whether charges are warranted.¹ A trial jury is convened to hear one case. A grand jury typically sits for a term and considers several or many cases.² That feature gives the way the panel is assembled unusual weight, because a flaw in its makeup could reach every indictment it returns during that term. For that reason the rules of formation come before the later material on challenges and irregularities.

A federal grand jury comes into being in a sequence that the next three sections take apart rule by rule. The court first decides that one is needed, then summons enough persons who are legally qualified to serve, and finally selects from those summoned the panel that will actually sit. The legal qualifications enter at the summoning step, because the process begins with the court calling in people who meet the jurisdiction's statutory requirements for service.³ Those requirements normally resemble the ones for regular jury service: the prospective grand juror must be a citizen and resident of the jurisdiction, be over eighteen, and be a person of honesty, intelligence, and good demeanor.⁴ This chapter does not rely on any one statute's version of that list. The categories still matter, because a later reference to a juror who lacks legal qualification points back to exactly this kind of requirement. Narrowing the qualified group to the panel is called purging, a step that removes otherwise qualified people who have legitimate excuses such as health problems or family obligations.⁵

Which qualified people get called is a separate question from whether they qualify, and jurisdictions answer it differently. Most now choose grand jurors at random from voter registration lists or other mass lists, while a small number still use a key-man system, in which jury commissioners hand pick individuals with standing in the community.⁶ The difference turns on who holds discretion. A random draw from a broad list leaves no one in a position to decide who sits, so the panel tends to reflect the community and to answer to no one's agenda. Hand picking gives the commissioner that discretion, and discretion over who sits is the opening through which a panel can come to mirror the selector's preferences or leave out disfavored groups. The qualification requirements and the selection method therefore serve as the benchmarks against which any later challenge to the panel is measured.

Those benchmarks matter in practice because defense counsel take no part in choosing the grand jury. A deficiency in its composition must be raised by a timely pretrial objection, and if the objection is well founded the trial court can void the indictment and send the prosecutor back to a lawfully constituted grand jury.⁷ Courts have generally recognized only two grounds for such an objection: a grand juror who failed the statutory qualifications for service, and a selection process that violated constitutional standards, usually by discriminating on a suspect classification such as race or gender.⁸ The two grounds correspond to the two things this section has set out, the qualification requirements and the selection method.

The difference between the two jurors is the distinction that matters on an exam. An excused juror is a qualified person who was released for a legitimate reason, while lack of legal qualification is a defect in the panel itself. The next sections state the formal rules in order, beginning with how many jurors a federal grand jury must have and how the court summons them.

Size and Summoning

Two questions come before any juror is chosen: when a grand jury is called at all, and how large it must be. Rule 6(a)(1) answers both questions and attaches a duty to the court. When the public interest so requires, the court must order that one or more grand juries be summoned, a grand jury must have 16 to 23 members, and the court must order enough legally qualified persons summoned to meet that requirement.¹⁰ The rule thus has three working parts, a trigger, a range, and a summoning duty, and each part exists for its own reason.

The public-interest trigger ties the existence of a grand jury to need. Each panel occupies citizens for a term of service and draws on courtroom space, staff, and prosecutorial attention while it sits, so convening one without a reason would spend those resources for nothing. The words one or more also recognize that a single panel may not be enough, and they let the court order several. The range has a history and a function. At common law the grand jury had twenty-three members, and at least twelve had to agree before an indictment could issue, so the federal ceiling of twenty-three matches the traditional full panel.¹¹ The floor of sixteen answers a practical problem. Federal grand jurors sit for a lengthy term, and absences and withdrawals steadily thin the panel, so the rule lets a full panel of twenty-three lose as many as seven members and keep working.¹²

The summoning duty rests on a counting problem. The rule counts the members of the panel that sits, and the pool called in must be larger because it shrinks between summons and seating. Persons with legitimate excuses are purged from the pool, as the previous section explained, and anyone who lacks the legal qualifications for service cannot count toward the total at all. A court that summoned exactly sixteen qualified persons would fall below the minimum as soon as one of them was excused, so the rule requires enough legally qualified persons to be summoned to meet the requirement, a number that will usually exceed sixteen.¹³

A decision from the territorial period shows how much turns on the law that governs a particular court. In Reynolds v. United States the Court upheld an indictment returned by a grand jury of fifteen in a territorial district court in Utah.¹⁴ Section 808 of the Revised Statutes required a grand jury of sixteen to twenty-three before the district or circuit courts of the United States, while a territorial statute limited grand juries in the territorial district courts to fifteen, so the question was which statute controlled.¹⁵ The territorial statute controlled. The territorial courts had the same jurisdiction over federal-law cases as the federal circuit and district courts, but that grant did not make them courts of the United States, and section 808 was written to regulate only the federal circuit and district courts.¹⁶ The case turned on which statute applied to the court. It gives no reason to doubt the minimum for a federal district court, to which the sixteen-to-twenty-three range now stated in Rule 6(a)(1) applies.¹⁷

The 15-member panel in the second district court and the 15-member panel in Reynolds look identical on the numbers, and the only fact separating their outcomes is the court whose law governs. A federal district court answers to the 16-to-23 range, while the territorial court answered to its own statute. A stem that reports a grand jury of fifteen therefore calls first for the question of which court's law governs the panel, and only then for a count. The later sections on challenging the grand jury explain how a size defect is raised and what follows if it is sustained.

Size also connects to the voting rule that a later section teaches in full. An indictment requires the concurrence of at least twelve jurors however many sit, and that number does not shrink when the panel does.¹⁸ A full panel of twenty-three therefore needs only a little over half of its members to agree, while a panel at the sixteen-member minimum needs three-fourths.¹⁹ Each juror lost to attrition makes an indictment slightly harder to obtain, and the floor of sixteen keeps that burden from growing past the point the rule allows.

Excusing and Replacing Jurors

A grand jury sits for a term that can last months, and over that stretch ordinary life intrudes: a juror falls ill, a family emergency arises, or a conflict with a witness comes to light. Rule 6(h) lets the court respond without disbanding the panel. At any time, for good cause, the court may excuse a juror temporarily or permanently, and if the excusal is permanent, the court may impanel an alternate juror in place of the one excused.²¹ The rule has two working parts, the good cause standard that justifies the excusal and the alternate who fills the resulting vacancy, and the reasons behind them differ.

The good cause requirement echoes the purging step described earlier, which removes otherwise qualified people who have legitimate excuses, such as health problems or family obligations, before the panel is seated.²² Rule 6(h) carries that idea forward in time, because the words at any time let the court apply it after the panel is already sitting, and the same kinds of reasons are the natural examples of good cause. The temporary option fits a short-lived problem such as a brief illness, since the juror can rejoin the panel afterward and no replacement is needed. A permanent excusal fits a problem that will not pass, and only then does an alternate take over. The rule also says who decides: the court may excuse the juror, and the prosecutor has no such power. The allocation matters because of incentive. The government presents its cases to this panel and hopes for indictments, so a prosecutor who could remove a juror at will would face a standing temptation to remove the one asking hard questions. Placing the decision with the court, and tying it to good cause, takes that temptation out of the government's hands and protects the screening function the grand jury serves.

Rule 6(a)(2) supplies the mechanism for replacement. When a grand jury is selected, the court may also select alternate jurors, who must have the same qualifications and be selected in the same manner as any other juror.²³ Those matching requirements close a back door. The earlier discussion of challenges identified two grounds for attacking a panel's composition, a juror who failed the statutory qualifications and a selection process that violated constitutional standards.²⁴ If alternates could be chosen under looser standards, every vacancy would be a chance to bring in a juror who would have been open to challenge on one of those grounds, so the rule holds each alternate to the standards the original panel had to meet. The sequence rule does parallel work: alternates replace jurors in the same order in which the alternates were selected, so that order is fixed when the alternates are chosen and no one, the prosecutor included, picks the substitute at the moment a seat opens.²⁵ Finally, an alternate who steps in is subject to the same challenges, takes the same oath, and has the same authority as the other jurors, which makes the replacement a full member of the panel whose vote counts as any juror's vote does.²⁶

The two scenarios differ in the reason offered and in who is asking. In the first, the reason concerns the juror's capacity to serve, and the court makes the call. In the second, the request rests on the juror's view of the evidence, which is the judgment the grand jury exists to exercise. A stem in which a prosecutor asks to remove a juror therefore contains two errors at once, the wrong actor and the absence of good cause, and a juror's skepticism about the evidence never supplies the cause.

Term of Service

The previous sections explained how a grand jury is summoned, sized, and kept at strength, which leaves one question about its existence: how long the panel lasts. Rule 6(g) answers in two parts. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury's service.²⁸ Each extension may be granted for no more than six months, except as otherwise provided by statute.²⁹ The rule therefore contains a default (service until discharge), a marker (18 months), and a capped power to extend, and the reasons for each begin with what separates a grand jury from a trial jury.

A trial jury, called a petit jury, is convened for a single case, so its verdict ends its work and it needs no clock. A grand jury is built differently. It sits for a term during which it considers several or many cases, and it can also conduct investigations of its own, so its work never reaches a natural stopping point the way a trial does.³⁰ A body that can always take up another matter will keep sitting unless a rule says when it stops, and the rule must also say who decides. Rule 6(g) gives the decision to the court, because only the court can discharge the panel, and it supplies the clock in the form of the 18-month marker.

Each part of the rule has its own logic. The default, service until the court discharges the panel, places control over the panel's life with the judge and with neither party. That placement matters because of incentive: the government presents its cases to the grand jury and has a natural interest in keeping a panel that already knows a long investigation, while the citizens on the panel bear the cost of continued service. If the prosecutor could decide how long the panel sat, the party with the most to gain from continuation would also be the one deciding. The 18-month marker then fixes the point at which continued service stops being routine. Up to that point the panel needs no special justification, and past it the court must determine that an extension is in the public interest. That determination forces the judge to say why this panel should keep sitting, so a long-running investigation continues only when the court can give a reason.

The cap on extensions addresses a different problem. A public-interest finding is only as good as the period it covers, and an unlimited extension would let one finding commit citizens to open-ended service. Limiting each extension to no more than six months means the court must look at the matter again before the panel can keep going, so judicial control is renewed at short intervals instead of being given up once. The statutory exception leaves room for a statute to provide a different limit, and when one does, the statute governs in place of the six-month cap.³¹

Both panels have reached or nearly reached the 18-month marker, so the difference lies in what the court did. In the first district, the extension rests on the determination the rule demands and stays inside the cap, so 23 months of total service is lawful. In the second, the panel sits past month 18 with no determination, and the twelve-month period is double the six-month limit, so the continued service departs from Rule 6(g) in two separate ways. The later sections on irregularities explain what consequence follows from such a departure. Students go wrong in two directions here, either by treating month 18 as an automatic end to the panel or by treating an extension as open-ended once granted. The accurate picture is a panel that serves until discharged, that needs a public-interest determination to pass month 18, and that can receive no more than six months per extension unless a statute says otherwise.