From R-KIDS of MN and GPF

Contents 1 I. INTRODUCTORY - Grand Jury 1.1 § 1. Definition and nature 1.2 § 2. Origin and history 1.3 § 3. Constitutional basis 2 II. QUALIFICATIONS AND EXEMPTIONS 2.1 § 4. Qualifications of grand jurors 2.2 § 5. --Sex 2.3 § 6. --Citizenship and residence 2.4 § 7. Effect of bias, prejudice, or interest 2.5 § 8. Exemptions 3 III. ORGANIZATION AND TENURE 3.1 A. IN GENERAL 3.2 § 9. Generally; authority of court or judge 3.3 § 10. Time and term; concurrent grand juries 3.4 § 11. Special grand juries 3.5 § 12. Selection and drawing of jurors 3.6 § 13. Who does selecting or drawing 3.7 § 14. Effect of discrimination in selection 3.8 § 16. Number of jurors 3.9 § 17. Excusing jurors and completing panel 3.10 § 18. Oath 3.11 § 19. Charge 3.12 § 20. Presumptions as to proper organization 3.13 B. OBJECTIONS AND CHALLENGES 3.14 § 21. Generally 3.15 § 22. Challenge to panel or array 3.16 § 23. --Time for making 3.17 § 24. Challenge to polls 3.18 § 25. --When made; waiver of right to challenge 4 IV. POWERS AND DUTIES 4.1 § 26. Generally 4.2 § 27. Manner of exercising inquisitorial powers 4.3 § 28. Limitations on powers 4.4 § 29. Power to investigate civil matters 4.5 § 30. Presentments and reports 4.6 § 31. Jurisdiction or power after expiration of term of court 5 V. PROCEEDINGS 5.1 § 32. Generally 5.2 § 33. Interference or improper communication with grand jury 5.3 § 34. Who may attend deliberations 5.4 § 35. --Prosecuting officer; private prosecutor; attorney general 5.5 § 36. --Stenographer or reporter 5.6 § 37. Attendance and examination of witnesses 5.7 § 38. --Privilege against self-incrimination 5.8 § 39. Secrecy of proceedings 5.9 § 40. --Application of rule 5.10 § 41. --Limitations on or exceptions to rule of secrecy

I. INTRODUCTORY - Grand Jury

§ 1. Definition and nature

A grand jury is a body of qualified persons selected and organized for the purpose of inquiring into the commission of crimes within the county or jurisdiction from which its members are drawn, determining the probability of guilt, and finding indictments against supposed offenders. It is an inquisitorial body of ancient origin, charged primarily with the duty of investigating infractions of the criminal law occurring within the county or jurisdiction.

A grand jury is a part of the machinery of government, having for its object the detection and punishment of crime. It is an adjunct or appendage of the court under whose supervision it is impaneled, and it has no existence aside from that court. It does not become, after it is summoned, impaneled, and sworn, an independent agency, as it were, in the judicial system, but remains an appendage of the court on which it is attending. The grand jury is regarded as an informing or accusing body rather than as a judicial tribunal. But its proceeding is said to be generally regarded as judicial in nature.

Grand jurors do not have the status of public officers.

       1.   Qualifications of grand jurors generally, see § §  4-7, infra.

	2.   Beavers v Henkel, 194 US 73, 48 L ed 882, 24 S Ct 605; State v Iosue, 220 Minn 283, 19 NW2d 735; Iron County v Preece, 12 Utah 2d 227, 364 P2d 1023.

	3.   Beavers v Henkel, 194 US 73, 48 L ed 882, 24 S Ct 605.

A grand jury is not a body engaged in determining the issue of a defendant's guilt or innocence but is charged with the duty of investigating into all crimes within its jurisdiction, without disclosure of its activities and subject only to the requirement of law relating to the quality and sufficiency of evidence adequate to warrant indictment. People ex rel. Mleczko v McCloskey, 33 Misc 2d 175, 226 NYS2d 202, affd 16 App Div 878, 228 NYS2d 464.

	4.   Beavers v Henkel, 194 US 73, 48 L ed 882, 24 S Ct 605; Clemmons v State (Fla App) 141 So 2d 749, mod on other grounds (Fla) 150 So 2d 231.

A regular grand jury is one convened in the normal course of court business to receive complaints and accusations and find bills of indictment where it is satisfied a trial ought to be had. Smith v Gallagher, 408 Pa 551, 185 A2d 135.

	5.   Bowie v State, 185 Ark 834, 49 SW2d 1049, 83 ALR 426; People v Foster, 198 Cal 112, 243 P 667; State v Winsett (Del) 200 A2d 692, disapproved on other ground Johnson v State (Del Sup) 215 A2d 247; Adams v State, 214 Ind 603, 17 NE2d 84, 118 ALR 1095; Matthews v Pound (Ky) 403 SW2d 7; People ex rel. Mleczko v McCloskey, 33 Misc 2d 175, 226 NYS2d 202, affd 16 App Div 2d 878, 228 NYS2d 464.

	6.   §  2, infra.

	7.   Bowie v State, 185 Ark 834, 49 SW2d 1049, 83 ALR 426; Re Opinions of Justices (Sup) 47 Del 117, 88 A2d 128.

	8.   Levine v United States, 362 US 610, 4 L ed 2d 989, 80 S Ct 1038, reh den 363 US 858, 4 L ed 2d 1739, 80 S Ct 1605; United States v Cleary (CA2 NY) 265 F2d 459, cert den 360 US 936, 3 L ed 2d 1548, 79 S Ct 1458; Ex parte Jennings, 91 Tex Crim 612, 240 SW 942, 22 ALR 1351.

	9.   Brown v United States, 359 US 41, 3 L ed 2d 609, 79 S Ct 539, reh den 359 US 976, 3 L ed 2d 843, 79 S Ct 873, ovrld on other grounds Harris v United States, 382 US 162, 15 L ed 2d 240, 86 S Ct 352; Schwimmer v United States (CA8 Mo) 232 F2d 855, cert den 352 US 833, 1 L ed 2d 52, 77 S Ct 48; Banks v State, 185 Ark 539, 48 SW2d 847, 82 ALR 1051; Re Jessup's Petition, 50 Del 530, 136 A2d 207; State ex rel. Martin v Michell (Fla App) 188 So 2d 684, cert discharged (Fla) 192 So 2d 281; People v Polk, 21 Ill 2d 594, 174 NE2d 393; State ex rel. Meloy v Barger, 227 Ind 678, 88 NE2d 392; Harrod v Commonwealth (Ky) 253 SW2d 574; Commonwealth v McNary, 246 Mass 46, 140 NE 255, 29 ALR 483; State ex rel. Adami v Lewis & Clark County Dist. Court, 124 Mont 282, 220 P2d 1052; State v Edwards, 89 RI 378, 153 A2d 153.

But see Stanley v State, 171 Tenn 406, 104 SW2d 819, wherein it is stated that the grand jury is not an agency of the district attorney or of the court, but is an agency of the government and may act independently of the court and district attorney.

	10.   Annotations:  22 ALR 1356, s. 106 ALR 1384, 120 ALR 437.

	11.   Re Neff (CA3 NJ) 206 F2d 149, 36 ALR2d 1398; Banks v State, 185 Ark 539, 48 SW2d 847, 82 ALR 1051; State v Winsett (Del) 200 A2d 692, disapproved on other ground Johnson v State (Del Sup) 215 A2d 247; Hobbs v Peavy, 210 Ga 671, 82 SE2d 224; Adams v State, 214 Ind 603, 17 NE2d 84, 118 ALR 1095; Coblentz v State, 164 Md 558, 166 A 45, 88 ALR 886; Commonwealth v Geagan, 339 Mass 487, 159 NE2d 870, cert den 361 US 895, 4 L ed 2d 152, 80 S Ct 200; State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

	12.   State v Superior Court of Pima County, 4 Ariz App 373, 420 P2d 945, reh den 4 Ariz App 562, 422 P2d 398, vacated on other grounds 102 Ariz 388, 430 P2d 408.

	13.   McDuffie v Perkerson, 178 Ga 230, 173 SE 151, 91 ALR 1002; Adams v State, 214 Ind 603, 17 NE2d 84, 118 ALR 1095.

§ 2. Origin and history

The grand jury is of very ancient origin in the history of England, going back many centuries. At first, it apparently not only accused, but also tried, those who had offended the criminal law. As time went on, however, it became an accusing tribunal only; no one charged with a crime amounting to felony, except in certain special cases, could be put on trial without prior action by that body. It frequently stood as a barrier against royal persecution, until at length it was regarded as an institution that secured the King's subjects against the oppression of unfounded prosecutions by the Crown. Although that reason may not have been the motivating factor in this country, the fact remains that the grand jury system was adopted here and for considerations quite similar to those of the mother country. Our adoption of the system was founded on the theory not only of bringing wrongdoers to justice, but also of providing protection against unfounded and unreal accusations, whether these had their origin in governmental sources or were founded on private passion or enmity.

In some jurisdictions the grand jury has been largely eliminated, and in England it has been abolished.

	14.   Sheridan v Garrison (DC La) 273 F Supp 673; State v Revere, 232 La 184, 94 So 2d 25; State v Iosue, 220 Minn 283, 19 NW2d 735.

	15.   Sheridan v Garrison (DC La) 273 F Supp 673; State v Iosue, 220 Minn 283, 19 NW2d 735.

	16.   Maley v District Court of Woodbury County, 221 Iowa 732, 266 NW 815, ovrld on other grounds Uhl v District Court of Monona County, 231 Iowa 1046, 2 NW2d 741; State v Iosue, 220 Minn 283, 19 NW2d 735.

	17.   Maley v District Court of Woodbury County, 221 Iowa 732, 266 NW 815, ovrld on other grounds Uhl v District Court of Monona County, 231 Iowa 1046, 2 NW2d 741; State v Iosue, 220 Minn 283, 19 NW2d 735.

	18.   Sawyer v State, 94 Fla 60, 113 So 736; State v Iosue, 220 Minn 283, 19 NW2d 735.
	19.   State v Iosue, supra.

	20.   Hurtado v California, 110 US 516, 28 L ed 232, 4 S Ct 111, 292; Sheridan v Garrison (DC La) 273 F Supp 673; Sawyer v State, 94 Fla 60, 113 So 736; Maley v District Ct. 221 Iowa 732, 266 NW 815; State v Iosue, 220 Minn 283, 19 NW2d 735; Garnsey v State, 4 Okla Crim 547, 112 P 24; State v Bramlett, 166 SC 323, 164 SE 873.

Annotations: 22 ALR 1356, s. 106 ALR 1383, 120 ALR 437.

	1.   Brack v Wells, 184 Md 86, 40 A2d 319, 156 ALR 324.

Prosecutions by information, see Indictments and Informations.

§ 3. Constitutional basis

The provision of the Fifth Amendment to the Federal Constitution that a grand jury indictment is necessary with respect to any capital or otherwise infamous crime, except as to cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger, is a limitation only on the Federal Government; each state may determine whether a grand jury is to be employed in its judicial system and the organization and procedure of such a body. The "due process of law" clause of the Federal Constitution does not require a state to adopt the institution and procedure of a grand jury. Some state constitutions, however, contain provisions that no one shall be held to answer for felonies or infamous crimes except on presentment or indictment by a grand jury. Such provisions are intended to secure the same protection that was provided by the common law, through the same kind of grand jury which was traditional at common law, functioning substantially in the same way.

	2.   See Indictments and Informations (1st ed § §  6 et seq.).

	3.   Re Moran, 203 US 96, 51 L ed 105, 27 S Ct 25; Sawyer v State, 94 Fla 60, 113 So 736; State v Kavanaugh, 32 NM 404, 258 P 209, 53 ALR 706.

	4.   Lem Woon v Oregon, 229 US 586, 57 L ed 1340, 33 S Ct 783; Hallinger v Davis, 146 US 314, 36 L ed 986, 13 S Ct 105; Hurtado v California, 110 US 516, 28 L ed 232, 4 S Ct 111; Sawyer v State, 94 Fla 60, 113 So 736.

	5.   Re Opinion to Governor, 62 RI 200, 4 A2d 487, 121 ALR 806.

II. QUALIFICATIONS AND EXEMPTIONS

§ 4. Qualifications of grand jurors

It is part of the established tradition that the grand jury as an instrument of public justice be a body truly representative of the community. Indeed, the fundamental purpose of the grand jury system is to obtain a group of men and women who represent a fair and impartial cross section of the citizens of the county, each with his or her own individual thoughts, experiences, and reactions.

Statutory provisions prescribing the qualifications of grand jurors are generally regarded as mandatory and must be observed; unless a person possesses the required qualifications he is not a competent grand juror. Various statutes require that grand jurors be qualified voters or electors, taxpayers, "freeholders or householders," or "freeholders and householders." And it is frequently provided that persons shall be disqualified to serve as grand jurors if they have served as such within a specific period or on a former trial jury for an offense being investigated. But it appears that service on a coroner's jury for the same offense will not disqualify.

Grand jurors are to be selected from all classes of persons eligible for jury service, without discrimination because of race, color, or religious or political belief; any discrimination on the part of administrative officers is violative of constitutional guarantees. The state, in its legislation defining the persons eligible for grand jury service, cannot deny to persons of certain races, such as the Negro race, the right and privilege of acting as grand jurors, by making all such persons ineligible for jury service. However, a statute authorizing the selection as grand jurors of electors of good moral character does not discriminate against Negroes because of their race, provided Negroes are not as such disqualified to be electors, though the educational qualifications required of electors may exclude a greater number of colored than white persons. And it has been held that equal protection of the laws is not denied by a statute that does not discriminate against Negroes in terms though it grants a discretion to the selecting officers which they might use to abridge the right of colored persons to serve on the grand jury.

A statute requiring jurors to be persons of good intelligence, sound judgment, and fair character is not ex post facto as applied to offenses committed before its passage.

A statement as to a belief in God cannot be prerequisite for grand jury service.

Specific provision is made in the United States Code as to the qualifications of federal jurors, either grand or petit.

	6.   Smith v Texas, 311 US 128, 85 L ed 84, 61 S Ct 164.

	7.   Re Grand Jurors Asso. (Sup) 25 NYS2d 154.

	8.   State v Palmer, 232 La 468, 94 So 2d 439; State v Stevens, 244 NC 40, 92 SE2d 409; State v Smith (Okla Crim) 320 P2d 719; Sanchez v State, 147 Tex Crim 436, 181 SW2d 87.

	9.   Sanchez v State, supra.

	10.   Parus v District Ct. 42 Nev 229, 174 P 706, 4 ALR 140.

	11.   United States v Collins (CC Ga) 1 Woods 499, F Cas No 14837; State v Jones (La) 8 Rob 616; Avirett v State, 76 Md 510, 25 A 676; State v Durham Fertilizer Co. 111 NC 658, 16 SE 231.

	12.   State v Hawkins, 10 Ark 71; Wills v State, 69 Ind 286; Stokes v State, 24 Miss 621; State v Rockafellow, 6 NJL 332, ovrld on other grounds Re Public Highway, 22 NJL 293; Martin v State, 22 Tex 214; Commonwealth v St. Clair, 42 Va (1 Gratt) 556.

	13.   Moses v State, 58 Ala 117; Tompkins v State, 138 Ga 465, 75 SE 594; Roth v State, 3 Ohio CC 59, 2 Ohio CD 33; Bloodworth v State, 65 Tenn (6 Baxt) 614; State v Cox, 52 Vt 471.

	14.   United States v Jones (CC Ga) 31 F 725.

	15.   Sullins v State, 79 Ark 127, 95 SW 159; Lee v State, 69 Ga 705; State v Lamon, 10 NC (3 Hawks) 175.

	16.   §  14 infra.

	17.   Strauder v West Virginia, 100 US 303, 25 L ed 664.

Annotations: 52 ALR 920; 82 L ed 1053.

	18.   Franklin v South Carolina, 218 US 161, 54 L ed 980, 30 S Ct 640.

	19.   Dixon v State, 74 Miss 271, 20 So 839.

Annotations: 44 L ed 839.

	20.   Williams v Mississippi, 170 US 213, 42 L ed 1012, 18 S Ct 583.

	21.   Smith v Mississippi, 162 US 593, 40 L ed 1082, 16 S Ct 900.

Annotations: 53 ALR 721.

	1.   United States v Oliver (CA7 Ill) 363 F2d 15, cert den 385 US 904, 17 L ed 2d 135, 87 S Ct 216; Schowgurow v State, 240 Md 121, 213 A2d 475 (constitutional provision disqualifying atheists from jury service held to violate Fourteenth Amendment).

	2.   Any citizen of the United States who has attained the age of 21 years and who has resided for a period of one year within the judicial district, is competent to serve as a grand or petit juror unless (1) he 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 by pardon or amnesty; (2) he is unable to read, write, speak, and understand the English language; or (3) he is incapable, by reason of mental or physical infirmities to render efficient jury service.

§ 5. --Sex

Women are not qualified to serve as grand jurors at common law. The rule is otherwise, however, under statutes making women competent to act as grand jurors where they possess the other qualifications. For example, where a statute provides that grand jurors are to be selected from qualified electors, the adoption of a constitutional amendment making women electors qualifies them for jury duty. But it appears that the status of women as electors is not necessarily determinative of their competence as grand jurors when the statute prescribes further qualifications, such as the requirement that the juror be a "householder."

In the absence of any constitutional inhibition against service of women on grand juries, a legislature has the authority to strike the word "male" from the statutory qualifications theretofore fixed for jury service.

	3.   Parus v District Court, 42 Nev 229, 174 P 706, 4 ALR 140.

	4.   Wright v United States (CA8 Ark) 165 F2d 405; Re House Bill No. 145, 205 Okla 364, 237 P2d 624.

Annotations: 157 ALR 477.

Where the section of a statute relating to grand juries provided in effect that a grand jury should consist of 23 persons possessing the qualifications of petit jurors prescribed in another section which, in turn, referred to still another section requiring the county board to make up a jury list containing the names of legal voters of both sexes, women were competent to serve as grand jurors. People v Thurman, 377 Ill 453, 36 NE2d 747.

	5.   Palmer v State, 197 Ind 625, 150 NE 917; Parus v District Court, 42 Nev 229, 174 P 706, 4 ALR 140.

	6.   Rosencrantz v Territory, 2 Wash Terr 267, 5 P 305.

	7.   Re House Bill No. 145, 205 Okla 364, 237 P2d 624.

§ 6. --Citizenship and residence

Only citizens may be grand jurors; at common law, as well as by statute, an alien is not qualified to be a grand juror. Though it has been said that the qualification of citizenship is unaffected by reason of the fact that a naturalized citizen does not understand the English language, under some statutes, to be qualified to act as a grand juror, one must understand the English language, or be able to speak, read, and write it.

The common law requires grand jurors to be residents of the county in which the crimes they are to investigate were committed; the same requirement is frequently made by statute. Under such a statute, temporary absence from the county does not disqualify a grand juror, where there was no intent to change his permanent abode. It has been held that the disqualification of a grand juror, resulting from his departing permanently from the state, exists only from the time the disqualification becomes known to the court.

	8.   Cotton v State, 85 Fla 197, 95 So 668.

	9.   Reich v State, 53 Ga 73; State v Soileau, 173 La 531, 138 So 92; Waller v Commonwealth, 178 Va 294, 16 SE2d 808, cert den 316 US 679, 86 L ed 1752, 62 S Ct 1106, reh den 316 US 712, 86 L ed 1777, 62 S Ct 1289.

	10.   Re Allison, 13 Colo 525, 22 P 820.

	11.   Parus v District Ct. 42 Nev 229, 174 P 706, 4 ALR 140.

	12.   State v Greenland, 125 Iowa 141, 100 NW 341.

	13.   State v Greenland, supra; State v Brazile, 229 La 600, 86 So 2d 208.

	14.   State v Hamlin, 47 Conn 95; State v Edwards, 89 RI 378, 153 A2d 153.

	15.   Sturrock v State, 229 Ind 169, 96 NE2d 226; State v Edwards, 89 RI 378, 153 A2d 153.

	16.   State v Wimby, 119 La 139, 43 So 984.

	17.   State v Tolett, 174 La 553, 141 So 57.

§ 7. Effect of bias, prejudice, or interest

Generally, in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused, or by his interest in a prosecution other than a direct pecuniary interest. The reasons assigned in support of this rule are that a grand jury, being an accusatory and not a judicial body, has the right and obligation to act on its own information, however acquired; that the oath required to be taken by grand jurors contemplates that they may be called on to act in the cases of both enemies and friends and requires them to inquire diligently into the commission of crimes; and that those who live in the vicinity of the place where the crime was committed know better than others the character of the parties and of the witnesses and are, therefore, particularly proper members of the grand jury. However, there seems no authority which goes so far as to hold that this would be true where the jurors had determined through malice or bribery to violate their oaths.

Kinship to the victim of the crime being investigated does not disqualify a person serving as a grand juror.

	18.   United States v Knowles (DC Dist Col) 147 F Supp 19; Sheppard v State, 243 Ala 498, 10 So 2d 822; United States v Caldwell, 8 Alaska 117; Joslyn v People, 67 Colo 297, 184 P 375, 7 ALR 339; Coblentz v State, 164 Md 558, 166 A 45, 88 ALR 886; Commonwealth v Monahan, 349 Mass 139, 207 NE2d 29.

Political prejudice or partisanship is not a ground of disqualification. United States v Eagan (CC Mo) 30 F 608.

Political activity or acquaintance with others who are active in the political life of a city, county, or state constitutes no legal disqualification for service as a grand juror. People v Prior, 294 NY 405, 63 NE2d 8, 160 ALR 1157, reh den 294 NY 975, 63 NE2d 710.

	19.   Under a statute providing that opinion founded on public rumor, statements in public journals, or common notoriety shall not disqualify, a grand juror is not disqualified by reason of having heard a case talked about and having read a newspaper account of it. Parus v District Ct. 42 Nev 229, 174 P 706, 4 ALR 140.

	20.   Joslyn v People, 67 Colo 297, 184 P 375, 7 ALR 339; State v Hamlin, 47 Conn 95; Commonwealth v Woodward, 157 Mass 516, 32 NE 939.

	1.   United States v Caldwell, 8 Alaska 117; Joslyn v People, 67 Colo 297, 184 P 375, 7 ALR 339; Commonwealth v Brown, 147 Mass 585, 18 NE 587 (inhabitancy of town against which offense was committed); State v Rickey, 10 NJL 83; Rolland v Commonwealth, 82 Pa 306 (ownership of stock in bank burglarized by defendant); State v Brainerd, 56 Vt 532 (relation of husband to depositor in trust company, misapplication of whose funds is under investigation).

In the absence of statute to the contrary, the fact that a grand juror is a complaining witness or prosecutor probably does not disqualify him, although, because of rulings on the manner and mode of objecting, the cases are in apparent disagreement. Krause v State, 88 Neb 473, 129 NW 1020; State v Pitt, 166 NC 268, 80 SE 1060.

The relationship of a grand juror to the prosecutor or party injured is not a good objection, although some cases decide this on a question of practice. Lascelles v State, 90 Ga 347, 16 SE 945, affd 148 US 537, 37 L ed 549, 13 S Ct 687; State v Russell, 90 Iowa 569, 58 NW 915; State v Easter, 30 Ohio St 542.

A United States commissioner who considers testimony taken in a bankruptcy proceeding against a corporation and consults the district attorney with a view to issuing a warrant against one of the officers of the corporation for embezzlement is not a prosecutor, in an indictment in a state court against him for that offense, within the meaning of a state statute making prosecutors incompetent to serve on the grand jury. People v Lay, 193 Mich 17, 159 NW 299.

Members of an association organized for the purpose of aiding public officers in the investigation and prosecution of cattle thefts are not disqualified to act as grand jurors, where they made no contribution for the specific purpose of the particular case. Arnold v State, 148 Tex Crim 310, 186 SW2d 995, 158 ALR 1356.

	2.   §  1, supra.

	3.   Sledge v State, 208 Ala 154, 93 So 875; Holmes v State, 160 Ark 218, 254 SW 470; Joslyn v People, 67 Colo 297, 184 P 375, 7 ALR 339; Howell v State, 102 Fla 612, 136 So 456, on reh 102 Fla 613, 139 So 187; State v Russell, 90 Iowa 569, 58 NW 915; State v Vial, 153 La 883, 96 So 796; Coblentz v State, 164 Md 558, 166 A 45, 88 ALR 886; Krause v State, 88 Neb 473, 129 NW 1020; State v Easter, 30 Ohio St 542.

Annotations: 88 ALR 900.

	4.   State v Easter, supra.

	5.   State v Hamlin, 47 Conn 95.

	6.   Joslyn v People, 67 Colo 297, 184 P 375, 7 ALR 339.

	7.   State v Easter, 30 Ohio St 542.

§ 8. Exemptions

Statutory provisions generally exempt from grand jury service certain classes of persons. Persons who have been thus exempted include designated public officers or employees, women, and persons who have reached a specified age or who have previously served as jurors within a certain time. Exemption provisions are for the benefit of the persons exempted. They do not create a disability or disqualification, but simply confer on the persons specified a personal privilege of declining to serve as grand jurors, which privilege they may claim or waive.

	8.   East v State, 197 Tenn 644, 277 SW2d 361 (minister).

Concerning the right of a prospective juror to claim exemption from service on the basis of religious beliefs, see annotation: 2 ALR3d 1393.

	9.   United States v Caldwell, 8 Alaska 117.

28 USC § 1862, relating to both grand and petit jurors, provides that the following persons shall be exempt from jury service: (1) members in active service in the armed forces of the United States; (2) members of the fire or police departments of any state, district, territory, possession or subdivision thereof; and (3) public officers in the executive, legislative or judicial branches of the government of the United States, or any state, district, territory, or possession or subdivision thereof who are actively engaged in the performance of official duties.

Under the controlling statute, special police officers may not be exempt from service as grand jurors. Commonwealth v Hayden, 163 Mass 453, 40 NE 846.

	10.   People v Shearer, 169 Misc 69, 7 NYS2d 152.

	11.   People v Coffman, 338 Ill 367, 170 NE 227.

	12.   State v Hopkins, 115 La 786, 40 So 166.

	13.   United States v Caldwell, 8 Alaska 117.

	14.   People v Coffman, 338 Ill 367, 170 NE 227; Green v State, 59 Md 123; East v State, 197 Tenn 644, 277 SW2d 361.

	15.   Yates v State, 43 Fla 177, 29 So 965; People v Coffman, 338 Ill 367, 170 NE 227; State v Ross, 212 La 405, 31 So 2d 842; Green v State, 59 Md 123; Commonwealth v Hayden, 163 Mass 453, 40 NE 846; People v Shearer, 169 Misc 69, 7 NYS2d 152; East v State, 197 Tenn 644, 277 SW2d 361.

	16.   People v Shearer, 169 Misc 69, 7 NYS2d 152; East v State, 197 Tenn 644, 277 SW2d 361.

III. ORGANIZATION AND TENURE

A. IN GENERAL

§ 9. Generally; authority of court or judge

Statutory provisions govern the authority of courts in respect of the organization of grand juries. Under federal practice a court may not, in the absence of statute, organize a grand jury simply by virtue of its inherent power or organization as a judicial tribunal. In contrast, it seems that state courts of criminal jurisdiction may, in the absence of all statutory provision on the subject, cause grand juries to be summoned and impaneled whenever and as often as the business before them requires. Under this view, when it is made to appear that a system of crime exists among public officers, that there are criminal conspiracies respecting public business, safety, or health, or that other criminal acts which affect these functions or are of a widespread nature exist, the judge may properly order an investigation. It has been said, however, that a court has no power to set in motion a grand jury investigation unless it has reasonable cause to believe that such an investigation will disclose some criminal misconduct which is within its jurisdiction to punish. The court must have knowledge or definite information from trustworthy sources that criminal acts forming a system of criminal violations of the law have been committed, and at least one or more cognate offenses should exist on which to base a general investigation. No such inquiry may be set in motion on the chance or speculation that some crime may be discovered. Charges of misconduct in office made in a district attorney's petition for the convening of a grand jury to investigate such charges are too vague, indefinite, and uncertain to warrant the granting of the petition where there is no allegation of the time when and the place where the alleged violations of the law were committed, or that any one violation was committed within the jurisdiction of the court. But sufficient ground to warrant a grand jury investigation of the conduct of public officers is afforded by a petition which charges a conspiracy to cheat and defraud the state, to extort money and levy blackmail, and to engage in corrupt solicitation, misfeasance, and malfeasance in office, at a time within the statutory period of limitations and at places within the jurisdiction of the court, alleging overt acts as a part of the system of related crimes which it is necessary for the grand jury to investigate.

It is a general rule that a judge de facto may organize a grand jury. His authority is not open to question by persons indicted by a grand jury so organized. It has been held, however, that a judge who has completed his term in a criminal court, but who was not assigned to the grand jury room, could not assume jurisdiction over grand jury matters.

	17.   Pinn v State, 107 Neb 417, 186 NW 544.

	18.   Re Mills, 135 US 263, 34 L ed 107, 10 S Ct 762.

	19.   Commonwealth v Burton, 31 Va (4 Leigh) 645; State v Howard, 137 W Va 519, 73 SE2d 18.

	20.   McNair's Petition, 324 Pa 48, 187 A 498, 106 ALR 1373.

Annotations: 22 ALR 1356, s. 106 ALR 1383, 1384, 120 ALR 437.

	1.   McNair's Petition, supra.

	2.   Dauphin County Grand Jury Investigation, 332 Pa 289, 2 A2d 783, 120 ALR 414.

	3.   Although a petition for a grand jury investigation of a charge of violation of law by public officers need not set forth in detail the evidence relied on, there must be at least one specific crime charged as part of a system of related crimes for the discovery of which it is necessary to have the grand jury's assistance. Dauphin County Grand Jury Investigation, supra.

	4.   Dauphin County Grand Jury Investigation, supra.

	5.   Ex parte State ex rel. Atty. Gen. 142 Ala 87, 38 So 835; Ridout v State, 161 Tenn 248, 30 SW2d 255, 71 ALR 830.

	6.   Smith v Gallagher, 408 Pa 551, 185 A2d 135.

§ 10. Time and term; concurrent grand juries

The time for the selection of the grand jury and the period during which it is to sit are generally regulated by statute. But in the absence of a mandatory statute requiring the grand jury to be selected prior to the term, the action of a grand jury selected during the term is valid.

In accordance with the principle that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, the statute will be considered as merely directory, unless the nature of the act to be performed or the language used shows that the designation of time is intended as a limitation of the power of the officer, a statute fixing the period of time for the selection of grand jurors before the first day of the term of court is generally construed to be merely directory. Failure to impanel a grand jury at the end of 6 months, under a constitutional provision requiring such a jury to be impaneled twice a year, is not fatal to a conviction where it is further provided that a grand jury shall remain in office until a succeeding grand jury is impaneled.

It has been held that the extension of the term of a grand jury beyond the expiration of the term of court for which it was organized is a procedural matter within the rule-making power of the state supreme court, and that a statute permitting the court to detain the grand jury for an "additional week" after expiration of the term does not inferentially negative the right to continue it in session for any longer period.

Although some cases have held that a grand jury maintains the status of a de facto grand jury where it continues to act after expiration of the term of court for which it was organized, the position has also been taken that a grand jury does not occupy a de facto status where it continues its work after expiration of the term.

The general rule is that a grand jury which has been dismissed before the adjournment of court for the term may be recalled at the same term of the court.

It is possible to have two grand juries functioning in the same county at the same time. For example, a grand jury may be convened during an extraordinary term of court which has been lawfully appointed by the governor pursuant to his statutory powers, and may function even though the regular grand jury impaneled at the regular term of court is in existence and continuing to function. But it has been held that a statute empowering a judge, wherever he deems it expedient, to require the commissioners to draw such number of grand jurors as the judge considers necessary does not authorize the successive organization of two regular grand juries with general powers at one and the same term.

	7.   Mackey v People, 2 Colo 13; State v Lawry, 4 Nev 161; State v Smith, 38 SC 270, 16 SE 997; Vanhook v State, 12 Tex 252; Mesmer v Commonwealth, 67 Va (26 Gratt) 976.

Rule 6(g), Fed Rules Crim Proc provides: "A grand jury shall serve until discharge by the court but no grand jury may serve more than 18 months. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused."

	8.   People v Donaldson, 255 Ill 19, 99 NE 62.

	9.   State v Joseph, 143 La 428, 78 So 663 (wherein court observed that while judges should comply with law, failure to do so in particular instance, resulting in no injury to defendant, does not mean that he is to be discharged).

	10.   State v Haines, 18 NJ 550, 115 A2d 24.

	11.   Shenker v Harr, 332 Pa 382, 2 A2d 298.

	12.   People v Hall, 16 Ill 2d 223, 157 NE2d 26, 75 ALR2d 541 (pointing out however, that grand jury could not have de facto existence after term of court had ended, where de jure grand jury had been impaneled by court for current term and was performing duties of such body); People v Kaplan, 256 Mich 36, 239 NW 349; State ex rel. Dunn v Noyes, 87 Wis 340, 58 NW 386.

Annotations: 75 ALR2d 552, § 3.

Jurisdiction or power of grand jury after expiration of term of court for which it was organized, see § 31, infra.

	13.   State ex rel. Jacobson v District Court of Ward County, 68 ND 211, 277 NW 843.

Annotations: 75 ALR2d 552, § 3.

There is no such thing as a de facto grand jury in federal courts. United States v McKay (DC Mich) 45 F Supp 1007.

A grand jury is discharged by operation of law at the end of the term of court for which it was called. State ex rel. Adami v Lewis & Clark County Dist. Court, 124 Mont 282, 220 P2d 1052.

	14.   King v State, 236 Ind 268, 139 NE2d 547 (holding that trial court's stating that grand jury was "discharged" rather than "dismissed" was of no significance).

	15.   State v Loveless, 142 W Va 809, 98 SE2d 773.

	16.   People v McKane, 80 Hun 322, 30 NYS 95, affd 143 NY 455, 38 NE 950.

Annotations: 121 ALR 817.

	17.   O'Brien v State, 91 Ala 16, 8 So 559.

§ 11. Special grand juries

Either by statutory or common-law power, special grand juries may be summoned in most states when there has been a failure to draw or summon a regular grand jury or the regular grand jury has been discharged. Under a statute providing that the judge may direct grand jurors to be drawn and summoned for any adjourned term, the court may discharge a grand jury impaneled at a regular term, adjourn the term, and order a new venire to be drawn and summoned for such adjourned term. Such a grand jury may be legally drawn from the regular jury list notwithstanding the reduction in the number in the list as a result of the drawing of the grand jury for the regular term.

Whether a special or additional grand jury may exist or function contemporaneously with a general grand jury depends largely on the local constitutional and statutory provisions. The view has been taken that since an indictment found by a special or additional grand jury sitting in the same county contemporaneously with the regular grand jury will not satisfy the requirement of a constitutional provision declaring that no person shall be held to answer for a capital or other infamous crime unless on presentment or indictment by a grand jury, the legislature cannot, by statute, authorize a special or additional grand jury to sit in a county contemporaneously with the regular grand jury for the same county. Other courts, however, have taken the view that the authorization of a special grand jury which may exist or function contemporaneously with the regular grand jury does not violate constitutional provisions guaranteeing the right to presentment or indictment by a grand jury for infamous crimes and felonies. This difference may be explained in part by the fact that some state constitutions contemplate only such a grand jury as existed at common law, while other constitutions permit the legislature to prescribe the number of grand jurors or even to abolish the grand jury.

The investigating power of a special grand jury has been held not to be limited to offenses committed after the adjournment of the regular grand jury, or to one case, but to extend to any offense committed within the jurisdiction of the court which is not barred by limitations. There is authority, however, that an "extraordinary grand jury" called to investigate the corruption of a regular grand jury is limited to the scope of its investigation, and may not go beyond the terms of the executive proclamation summoning it.

A special grand jury duly convened in one term of court which continues in its work after the expiration of that term is a de facto grand jury, even though the continuation was without an order of the court, where no new grand jury was convened and the court recognized the continuing existence of the special grand jury.

	18.   State v Disbrow, 130 Iowa 19, 106 NW 263; Commonwealth v Burton, 31 Va (4 Leigh) 645.

	19.   State v Peterson, 16 Minn 73, 63 NW 171.

	20.   Re Opinion to Governor, 62 RI 200, 4 A2d 487, 121 ALR 806.

Annotations: 121 ALR 814.

Concurrent grand juries generally, see § 10, supra.

	1.   Re Opinion to Governor, supra.

	2.   People ex rel. Ferrill v Graydon, 333 Ill 429, 164 NE 832; State ex rel. Doerfler v Price, 101 Ohio St 50, 128 NE 173.

	3.   Re Opinion to Governor, 62 RI 200, 4 A2d 487. 121 ALR 806.

	4.   People ex rel. Ferrill v Graydon, 333 Ill 429, 164 NE 832.

	5.   People v Doe (Byk) 247 App Div 324, 286 NYS 343, affd 272 NY 473, 3 NE2d 875.

Annotations: 22 ALR 1372, s. 106 ALR 1391, 120 ALR 437.

	6.   People v Hall, 16 Ill 2d 223, 157 NE2d 26, 75 ALR2d 541.

Annotations: 75 ALR2d 553, § 3.

De facto grand juries generally, see § 10, supra.

§ 12. Selection and drawing of jurors

The selection and drawing of grand jurors is generally the subject of legislative regulation. In some jurisdictions constitutional limitations require the legislature to follow the common-law pattern. In other jurisdictions such limitations are not present, although there is authority that even though the state constitution does not define the mode of impaneling a grand jury and the legislature has the power to prescribe the method which shall be followed, neither the legislature nor the court may sanction a method which does not give reasonable assurance that the jury so chosen will conform to the traditional concept of a "grand jury" and will be impartial.

The exact manner of selecting the grand jury lies within the discretion of the trial courts and their officers acting within the framework of statutory requirements.

In the selection of grand juries, due regard should be given to the constitutional and statutory rights of defendants. Statutory provisions which relate to the number and qualifications of jurors, or which are designed to secure impartiality or freedom from unfair influences, are ordinarily deemed to be mandatory; those which prescribe mere details as to the manner of selection or drawing are usually regarded as directory.

Deviation from a mandatory statute or one intended to prevent fraud and unfounded prosecutions is usually fatal and renders the grand jury illegal. On the other hand, where the provisions of the statute are merely directory, and particularly where the chief purpose of the prescribed method is to distribute equally the burden of jury service, a departure from that method does not, in the absence of fraud or prejudice to the interests of the party who questions the regularity of the selection, render the grand jury illegal. The reason for this rule is that since the grand jurors do not try the case, but merely charge the accused, the manner of their selection is of no consequence to him; he is entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections. Such statutes need not be followed with technical or literal strictness. A substantial compliance is all that is required, and mere irregularities in the drawing and selection do not invalidate the grand jury's action, at least where substantial compliance is such as to indicate freedom from bias or prejudice by the selecting officers.

Where a statute requires the jury commissioners to make separate lists of grand and petit jurors and certify thereto, the inclusion of both lists under one head and with one certificate, although informal, has been held sufficient. Similarly, a mistake in the name of a person listed for grand jury service does not invalidate the action of the grand jury where it is shown that the person actually summoned and serving is the one intended by the officers making up the list.

The United States Code makes specific provision as to the manner of drawing federal grand juries, as to the apportionment of grand jurors within the district, and as to federal jury commissioners.

	7.   State v Peacock, 220 NC 63, 16 SE2d 452.

	8.   §  3, supra.

	9.   People v Prior, 294 NY 405, 63 NE2d 8, 169 ALR 1157, reh den 294 NY 975, 63 NE2d 710.

	10.   Beatrice Foods Co. v United States (CA8 Neb) 312 F2d 29, cert den 373 US 904, 10 L ed 2d 199, 83 S Ct 1289 (holding that officials who select grand jury need not be personally acquainted with each prospective juror in array).

	11.   §  14, infra.

	12.   Rush v State, 253 Ala 537, 45 So 2d 761 (judge in presence of sheriff and clerk drawing names of jurors from jury box in office of clerk); State v Superior Court of County of Pima, 102 Ariz 388, 430 P2d 408 (rule of criminal procedure requiring grand jurors to be examined "touching their qualifications"); People v Turner, 260 Ill 84, 102 NE 1036 (selection at meeting of supervisors not legally called); State v Russell, 90 Iowa 569, 58 NW 915 (restricting number of grand jurors to be drawn from division of county); State v Kifer, 186 La 674, 173 So 169, 110 ALR 1017 (drawing names from box instead of from envelope); State v Wetzel, 75 W Va 7, 83 SE 68 (presence of clerk at drawing, list of persons selected to serve, and preservation of list and delivery to proper official).

A mandatory statute in the summoning and selecting of a grand jury is one required to be observed in order to prevent fraud, unjust prosecutions, or an invasion of the statutory or constitutional rights of citizens. Gray v State, 143 Fla 588, 197 So 333.

	13.   Hyde v United States, 225 US 347, 56 L ed 1114, 32 S Ct 793 (names taken from box before drawing); Bowie v State, 185 Ark 834, 49 SW2d 1049, 83 ALR 426 (selection from all parts of county); Krause v State, 88 Neb 473, 129 NW 1020 (failure to enter in minutes proceedings for drawing); State v Zeller, 83 NJL 666, 85 A 237, error dismd 231 US 737, 58 L ed 460, 34 S Ct 316 (jury summoned by de facto officer); Meyers v Second Judicial Dist. Court, 108 Utah 32, 156 P2d 711; State v Wetzel, 75 W Va 7, 83 SE 68 (failure to summon clerk to attend drawing); State ex rel. McGovern v Williams, 136 Wis 1, 116 NW 225 (misnomer on jury list).

	14.   People v Turner, 260 Ill 84, 102 NE 1036; State v Russell, 90 Iowa 569, 58 NW 915; State v Kifer, 186 La 674, 173 So 169, 110 ALR 1017; State v Wetzel, 75 W Va 7, 83 SE 68.

	15.   Bowie v State, 185 Ark 834, 49 SW2d 1049, 83 ALR 426; People v Lieber, 357 Ill 423, 192 NE 331; Herndon v State, 16 Okla Crim 586. 185 P 701; Flynn v State, 203 Tenn 337, 313 SW2d 248, cert den 358 US 839, 3 L ed 2d 75, 79 S Ct 65.

	16.   People v Lieber, 357 Ill 423, 192 NE 331; State v Disbrow, 130 Iowa 19, 106 NW 263; Parus v District Ct. 42 Nev 229, 174 P 706, 4 ALR 140; Herndon v State, 16 Okla Crim 586, 185 P 701.

	17.   Parus v District Ct. 42 Nev 229, 174 P 706, 4 ALR 140.

	18.   State v Peterson, 61 Minn 73, 63 NW 171.

	19.   State ex rel. McGovern v Williams, 136 Wis 1, 116 NW 225.

	20.   28 USC § §  1864, 1865.

§ 13. Who does selecting or drawing

Statutory provisions generally determine the proper person to select or draw grand juries, and it is the generally prevailing rule that the persons so designated must make the selection and cannot delegate the task to others. However, a grand jury was not disqualified by the fact that the jury officials had employed the sponsor system of sending to certain persons in the district requests for recommendations of prospective federal grand jurors where in fact the clerk sent to the persons so recommended questionnaires directed to most of the statutory qualifications and the clerk did not add any juror to the list on the mere basis of his name having been suggested. Otherwise stated, when the jury officials exercised the ultimate discretion in the selection of the jury array, as they are by statute required to do, it is immaterial that they employed a sponsor system in the preparation of a preliminary list.

Where the statute prescribes that jurors be selected by chance by a person designated by the trial judge, a grand jury selected by the judge himself and composed of only such persons as he desires cannot return a valid indictment.

Where a statute requires a jury commissioner to have the qualifications of a petit juror, he is not disqualified to be a commissioner by the fact that he has served on a petit jury within a specified time preceding and is, therefore, by statute ineligible for further petit jury service at the moment.

Ordinarily, selection by a de facto officer acting under color of title to the office does not invalidate the grand jury, under the rule that the acts of a de facto officer are not open to question in collateral proceedings. Neither the right to office nor the constitutionality of the act giving authority to the officer who is to select the grand jury can be attacked collaterally by objection to the drawing. But where the officer is without color of authority to participate in the selection and is a mere usurper, and the provision for performance of such acts by the proper officer is mandatory, the grand jury so selected is not a legal body, and indictments found by it are void.

	21.   Vought v State, 135 Wis 6, 114 NW 518 (holding constitutional a requirement that selecting officer be freeholder of county), error dismd 217 US 590, 54 L ed 895, 30 S Ct 694.

	1.   Dunn v United States (CA5 Tex) 238 F 508 (holding invalid drawing performed by deputy officer).

	2.   Beatrice Foods Co. v United States (CA8 Neb) 312 F2d 29, cert den 373 US 904, 10 L ed 2d 199, 83 S Ct 1289.

	3.   Shepherd v State, 89 Miss 147, 42 So 544.

	4.   Bowie v State, 185 Ark 834, 49 SW2d 1049, 83 ALR 426.

	5.   Logan v State, 149 Ala 11, 43 So 10; Durrah v State, 44 Miss 789; State v Kelly, 86 NJL 704, 94 A 1103, affd 84 NJL 1, 87 A 128; Dolan v People, 64 NY 485.

	6.   State v Zeller, 83 NJL 666, 85 A 237, error dismd 231 US 737, 58 L ed 460, 34 S Ct 316.

	7.   People v Petrea, 92 NY 128.
	8.   State v Williams (Ala) 5 Port 130.

§ 14. Effect of discrimination in selection

In compiling jury lists both the need for competency and the need for a fair cross section of the community are important elements. But the desire for competency must not be pursued to the extent that a fair cross section is prevented. It is generally recognized that an intentional discrimination against a race or class of persons, solely because of their race or class, by officers in charge of the selection and summoning of grand jurors in a criminal case is a violation of the constitutional rights of an accused, which violation is not excused by the fact that the persons actually selected for jury service possess the necessary qualifications for jurors as prescribed by statute. Such action by administrative officers is as much a violation of constitutional rights of the accused as if the discrimination resulted from provisions of a statute.

Discrimination against members of the Negro race by officers charged with the selection and summoning of grand jurors in a criminal case is a violation of the constitutional rights of a Negro defendant, either as a deprivation of due process of law or as a denial of the equal protection of the laws. Similarly, discrimination against citizens of a particular nationality is a violation of the constitutional rights of a defendant of that nationality, the intentional exclusion from a grand jury of all persons belonging to the same political party or faction as the defendant in a prosecution arising out of a political controversy is a denial of the defendant's constitutional rights, and discrimination against persons of a certain religious faith is a violation of the constitutional rights of a defendant of that faith And, the constitutional rights of an accused may be violated if women eligible for service on grand juries are intentionally excluded therefrom. All of this does not mean, however, that a defendant in a criminal case has any constitutional right to be indicted by any particular grand jury or by one composed in part of members of his race or class. The constitutional guaranty merely forbids any intentional discrimination against race or class.

Discrimination in the selection of a grand jury as prohibited by the Federal Constitution means intentional, systematic noninclusion because of race or class, and does not mean absence of proportional representation of the various racial components of the relevant political unit from which a grand jury is drawn. In fact, proportional representation is not permitted.

Discrimination cannot be cured by the symbolic or mechanical action of placing a few of a particular class on the list for juries. For example, systematically including a token number of Negroes on a jury list is as objectionable as totally excluding Negroes. Neither symbolic nor proportional representation of particular classes is permitted. Representation must be the product of either the operation of an honest exercise of relevant judgment or the uncontrolled caprices of chance.

A defendant attacking his conviction of crime on the grounds that the state excluded members of his race from the grand jury which indicted him has the burden of proving the existence of purposeful discrimination. However, once a prima facie case is made out, the burden shifts to the prosecution.

	9.   Rabinowitz v United States (CA5 Ga) 366 F2d 34.

	10.   Cassell v Texas, 339 US 282, 94 L ed 839, 70 S Ct 629; Akins v Texas, 325 US 398, 89 L ed 1692, 65 S Ct 1276, reh den 326 US 806, 90 L ed 491, 66 S Ct 86; Pierre v Louisiana, 306 US 354, 83 L ed 757, 59 S Ct 536; State v Lewis, 152 Fla 178, 11 So 2d 337; State v Jones, 45 Hawaii 247, 365 P2d 460; Preston v State, 157 Tex Crim 228, 242 SW2d 436, cert den 343 US 917, 933, 96 L ed 1331, 1341, 72 S Ct 649, 772.

Annotations: 52 ALR 920; 82 L ed 1054; 94 L ed 856, s. 2 L ed 2d 2040.

	11.   State v Jones, 45 Hawaii 247, 365 P2d 460.

	12.   Neal v Delaware, 103 US 370, 26 L ed 567; State v Jones, 45 Hawaii 247, 365 P2d 460.

The fact that the written words of a state law do not envisage racial discrimination in the drawing of grand jurors does not establish the absence of such discrimination. Smith v Texas, 311 US 128, 85 L ed 84, 61 S Ct 164.

	13.   Arnold v North Carolina, 376 US 773, 12 L ed 2d 77, 84 S Ct 1032; Reece v Georgia, 350 US 85, 100 L ed 77, 76 S Ct 167, reh den 350 US 943, 100 L ed 822, 76 S Ct 297; Shepherd v Florida, 341 US 50, 95 L ed 740, 71 S Ct 549; Patton v Mississippi, 332 US 463, 92 L ed 76, 68 S Ct 184, 1 ALR2d 1286; State v Jones, 45 Hawaii 247, 365 P2d 460.

A systematic and arbitrary exclusion of Negroes from grand jury lists because of their race and color constitutes a denial to a Negro charged with crime of the equal protection of the laws guaranteed by the Fourteenth Amendment. Hale v Kentucky, 303 US 613, 82 L ed 1050, 58 S Ct 753.

A prima facie case of the denial of the equal protection which the Constitution guarantees, by systematic exclusion of Negroes from the state grand jury which had indicted two Negroes thereafter convicted of murder, is made out by uncontradicted evidence consisting of the county tax supervisor's testimony showing that the county tax records, on which Negro and white persons were listed separately and from which the names of jurors were derived, revealed 12,250 white persons and 4,819 Negroes in the county, with 5,583 white men and 2,499 Negro men listed for poll tax, and the trial court clerk's testimony that while there had been as many as four or five Negroes on the regular jury panel from which grand jurors were chosen, in his 24 years as clerk he could remember only one Negro serving on a grand jury, another having been selected but excused. Arnold v North Carolina, 376 US 773, 12 L ed 2d 77, 84 S Ct 1032.

Local tradition cannot justify the systematic exclusion of Negroes from grand juries. Eubanks v Louisiana, 356 US 584, 2 L ed 2d 991, 78 S Ct 970.

	14.   State v Jones, 45 Hawaii 247, 365 P2d 460.

	15.   State v Jones, supra.

	16.   State v Jones, supra.

	17.   State v Jones, supra; State v James, 96 NJL 132, 114 A 553, 16 ALR 1141.

Annotations: 9 ALR2d 661; 82 L ed 1058.

See Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457, wherein it was held that a federal grand jury composed entirely of men, drawn after the effective date of a state statute providing for women jurors, will not be deemed illegally constituted where less than two months had elapsed between the effective date of the state statute and the summoning of the grand jury, and it is not shown that women's names had at that time appeared on the state jury lists.

	18.   Akins v Texas, 325 US 398, 89 L ed 1692, 65 S Ct 1276, reh den 326 US 806, 90 L ed 491, 66 S Ct 86; Rogers v Alabama, 192 US 226, 48 L ed 417, 24 S Ct 257; Castleberry v State, 69 Ark 346, 63 SW 670; State v Jones, 45 Hawaii 247, 365 P2d 460; State v Warner, 165 Mo 399, 65 SW 584; State v Yoes, 271 NC 616, 157 SE2d 386 (holding that it is not required that the Negro race be represented on a grand jury in the same ratio to the total membership as the Negro population of the county bears to the total population of the county).

Annotations: 52 ALR 920; 44 L ed 839.

Socialists convicted of crime are not denied constitutional or statutory rights by the mere fact that the grand jury was composed exclusively of members of other political parties and of property owners. Ruthenberg v United States, 245 US 480, 62 L ed 414, 38 S Ct 168.

All that the accused can demand is that he be indicted by a jury from which members of his race or class, as a race or class, have not been intentionally excluded. Bush v Kentucky, 107 US 110, 27 L ed 354, 1 S Ct 625.

Assuming a grand jury pool thoroughly enough reflects the racial composition of a community, there is no basis for a claim of constitutional discrimination if without design it comes to pass that a particular grand jury has no representation of a particular race. Cassell v Texas, 339 US 282, 94 L ed 839, 70 S Ct 629 (opinion of Frankfurter).

	19.   Akins v Texas, 325 US 398, 89 L ed 1692, 65 S Ct 1276, reh den 326 US 806, 90 L ed 491, 66 S Ct 86; Hamilton v State, 141 Tex Crim 614, 150 SW2d 395, cert den 314 US 609, 86 L ed 490, 62 S Ct 117.

The mere fact that jury commissioners fail, when acting fairly and honestly, to give a full pro rata representation to a member of a race or class does not violate the constitutional rights of a defendant who is a member of such race or class. State v Jones, 45 Hawaii 247, 365 P2d 460.

Fairness in selection of a grand jury does not require proportional representation of groups or callings. State v Davies, 146 Conn 137, 148 A2d 251, cert den 360 US 921, 3 L ed 2d 1537, 79 S Ct 1441.

	20.   Brooks v Beto (CA5 Tex) 366 F2d 1, cert den 386 US 975, 18 L ed 2d 135, 87 S Ct 1169, reh den 386 US 1043, 18 L ed 2d 618, 87 S Ct 1489.

	1.   Brooks v Beto, supra (rejecting defendant's claim that conviction was invalid because Negroes were purposefully included on grand jury returning indictment and disapproving Collins v Walker (CA5 La) 329 F2d 100, on reh 335 F2d 417, cert den 379 US 901, 13 L ed 2d 175, 85 S Ct 189).

	2.   Whitus v Georgia, 385 US 545, 17 L ed 2d 599, 87 S Ct 643, conformed to 223 Ga 127, 153 SE2d 446.

§ 15. Summoning

At common law the grand jurors could be summoned by open venire, and this method may still be invoked by the courts when no other provision is made by statute. The manner of summoning grand jurors, however, is generally regulated by statute. Ordinarily there need be only a substantial compliance with the particular method prescribed by statute, and mere irregularities which do not amount to a substantial departure from the statutory provisions are not fatal.

A statute regulating the manner of summoning a grand jury is said to be directory when a departure from the usual method does not, in the absence of fraud or prejudice, militate against the statutory or constitutional rights of the parties challenging the regularity of the selection of the grand jury, and is said to be mandatory when observance of the statute is necessary in order to prevent fraud, unjust prosecution, or an invasion of the statutory or constitutional rights of citizens.

At common law a writ of venire facias, or process directed to the sheriff in the name of the king or of two or more justices of the peace, was indispensable to the summoning of a grand jury. Statutory provisions relating to the issuance of a venire facias, however, have been construed as merely directory. In some cases it has been held that the absence of a seal on the writ is a defect which cannot be cured by amendment or remedied by special statute, and which renders the venire void, while in other cases the absence of the seal, under a statute not expressly prohibiting such omission, has been held immaterial.

Under a statute making it the duty of the county clerk to sign the writ when the judges of the county court have decided that a grand jury should be summoned, the omission of the clerk's signature to the writ is a fatal defect, and renders the venire illegal and void; a grand jury summoned in accordance with such process is without jurisdiction to act. But under a federal statute providing that no grand jury shall be summoned to attend a district court unless the judge orders a venire to issue therefor, the failure of the judge to sign an order summoning the grand jury does not render the order null or the grand jury illegal, the statute not requiring the order to be in writing and signed by the judge.

The writ must be served by a proper officer, but his qualifications need not appear on the process. Service by an unauthorized person renders an indictment invalid, but this effect does not follow from defects or irregularities in the service by the proper officer or where there is an appearance by the jurors without service.

At common law grand jurors were summoned by the sheriff, and under some statutes the sheriff is still expressly required to do so in accordance with a writ therefor issued by the clerk of court. Under other statutes the grand jurors may be summoned by the clerk of court, or must be called by the regular judge of the court having jurisdiction in criminal matters.

	3.   Rogers v People, 104 Colo 594, 94 P2d 453.

	4.   Moran v Territory, 14 Okla 544, 78 P 111.

	5.   Kingsbury v State, 27 Ariz 289, 232 P 887, on reh 28 Ariz 86, 235 140; Winn v State, 138 Tex Crim 202, 135 SW2d 118; State v Wetzel, 755 W Va 7, 83 SE 68.

Rule 6(a), Fed Rules of Crim Proc provides: "The court shall order one or more grand juries to be summoned at such times as the public interest requires. The grand jury shall consist of not less than 16 nor more than 23 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement."

For federal statute governing summoning of jurors, see 28 USC § 1867; as to summoning of grand jurors where United States marshal or his deputy is disqualified, see 28 USC § 1868.

	6.   Miller v State (Okla Crim) 281 P2d 441.

	7.   People v Hopkins, 415 Ill 11, 111 NE2d 587; Moree v State, 147 Tex Crim 564, 183 SW2d 166.

Mere irregularities in the form of the venire, precept, or summons do not invalidate an indictment. Hawes v State, 88 Ala 37, 7 So 302; People v Birger, 329 Ill 352, 160 NE 564; Nichols v State, 46 Miss 284; Commonwealth v Salter (Pa) 2 Pearson 461; White v State, 50 Tenn (3 Heisk) 338; State v Frotten, 114 Vt 410, 46 A2d 921; State v Howard, 137 W Va 519, 73 SE2d 18.

	8.   Rogers v People, 104 Colo 594, 94 P2d 453; State v Childers, 122 Okla 64, 252 P 6; State v Wetzel, 75 W Va 7, 83 SE 68.

Statutory provisions as to the time for service have been construed as merely directory, for the convenience of the sheriff and the grand jurors. People v Donaldson, 255 Ill 19, 99 NE 62.

	9.   Gray v State, 143 Fla 588, 197 So 333.

	10.   Gray v State, supra.

	11.   State v Frotten, 114 Vt 410, 46 A2d 921; State v Wetzel, 75 W Va 7, 83 SE 68.

	12.   State v Howard, 137 W Va 519, 73 SE2d 18.

	13.   State v Flemming, 66 Me 142.

	14.   State v Drake, 36 Me 366; State v Worley, 33 NC (11 Ired L) 242.

Annotations: 30 ALR 730.

	15.   Maher v State, 1 Port (Ala) 265; State v Bradford, 57 NH 188; Adams v State, 95 Tex Crim 226, 252 SW 797 (if writ is otherwise properly certified).

	16.   State v Frotten, 114 Vt 410, 46 A2d 921.

	17.   Nolan v United States (CA8 ND) 163 F2d 768, cert den 333 US 846, 92 L ed 1130, 68 S Ct 649.

	18.   Sylvester v State, 72 Ala 201; State v Mellor, 13 RI 666; Newman v State, 14 Wis 393.

	19.   Hicks v State, 97 Fla 199, 120 So 330; Randolph v State, 200 Ind 210, 162 NE 656; State v Walla, 57 ND 726, 224 NW 211.

	20.   State v Austin, 93 W Va 704, 117 SE 607.

	1.   Livoti v Fitzgerald, 255 App Div 711, 720, 5 NYS2d 588, affd 279 NY 696, 18 NE2d 319.

	2.   State ex rel. Meloy v Barger, 227 Ind 678, 88 NE2d 392.

§ 16. Number of jurors

A common-law grand jury may consist of any number between 12 and 23 members. In most jurisdictions the number of grand jurors is now fixed by statute or constitutional provision. In at least one jurisdiction a statute authorizes judges and justices of the peace to sit as one-man grand juries, with the usual grand jury powers.

The due process clause of the Federal Constitution does not require that a grand jury shall be organized with the same number of jurors as at common law. Limitations on the power of a state legislature to vary the number of grand jurors from that provided at common law, if they exist at all, are imposed by the state constitution. In several states, the general provisions of the constitutions for indictment by a grand jury are held to require a grand jury substantially like that at common law.

Under a statute mandatory as to the number of persons necessary to constitute a grand jury, the number required must be impaneled and act. Where the statute provides for a maximum and minimum number of grand jurors, the grand jury may be constituted legally of any number less than the maximum, but more than the minimum, number.

At common law, it is essential to the validity of an indictment that 12 grand jurors concur in finding it. Under the early common law, where the grand jury consisted of only 12 members, a unanimous vote was required to find an indictment. When the permissible number of grand jurors constituting the grand jury was increased, the number necessary to concur in finding an indictment remained the same, but since the maximum number constituting the grand jury never exceeded 23, 12 has always been at least a majority of its constituent membership.

Under some statutory provisions, an indictment may be found by the concurrence of less than 12 jurors. Constitutional provisions guaranteeing the right to trial on indictment or presentment of a grand jury have, however, been held to invalidate statutes reducing the number of grand jurors necessary to concur. Unless the statute is mandatory as to the number of grand jurors acting, the excusing or absence of some of the panel will not affect an indictment if enough remain to constitute the number necessary to concur. In other words, the least number necessary to concur in an indictment will be sufficient for a quorum and may act after the jury has once been legally constituted.

	3.   State v Hartley, 22 Nev 342, 40 P 372; State v Barker, 107 NC 913, 12 SE 115; State v Bramlett, 166 SC 323, 164 SE 873.

A grand jury should not consist of more than 23 members. Fitts v Superior Court of Los Angeles County, 6 Cal 2d 230, 57 P2d 510; People v Lieber, 357 Ill 423, 192 NE 331.

	4.   United States v Silverman (DC Conn) 129 F Supp 496; Lightfoot v State (Fla) 64 So 2d 261; People v Shipman, 414 Ill 393, 111 NE2d 545; People v Brinkman, 205 Misc 337, 126 NYS2d 495; Re House Bill No. 145, 205 Okla 364, 237 P2d 624; State v Bramlett, 166 SC 323, 164 SE 873; Hill v State, 146 Tex Crim 333, 171 SW2d 880, 174 SW2d 733, cert dismd 320 US 806, 88 L ed 487, 64 S Ct 72.

The Federal Criminal Code provides: "Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If less than sixteen of the persons summoned attend, they shall be 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. Whenever a challenge to a grand juror is allowed, 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 number of persons for that purpose." 18 USC § 3321. See also Rule 6(a), Federal Rules of Criminal Procedure, providing that grand jury shall consist of not less than 16 nor more than 23 members.

	5.   Re Oliver, 333 US 257, 92 L ed 682, 68 S Ct 499 (referring to a Michigan statute).

Actually the Michigan statutory provisions authorize a 23-man grand jury, as well as a three-man and a one-man grand jury; there is no apparent incompatibility or repugnancy between the three methods. People v Pichitino, 337 Mich 90, 59 NW2d 100, cert den 347 US 913, 98 L ed 1069, 74 S Ct 477.

	6.   Talton v Mayes, 163 US 376, 41 L ed 196, 16 S Ct 986 (finding of an indictment by a grand jury of less than 13); Parker v People, 13 Colo 155, 21 P 1120.

	7.   State v Hartley, 22 Nev 342, 40 P 372; State v Barker, 107 NC 913, 12 SE 115.

Ex post facto laws changing number of grand jurors, see 16 Am Jur 2d, Constitutional Law § 406.

	8.   Harding v State, 22 Ark 210; Gladden v State, 12 Fla 562; Brannigan v State, 3 Utah 488, 24 P 767; Fitzgerald v State, 4 Wis 395.

	9.   State v Cooley, 72 Minn 476, 75 NW 729.

	10.   State v Miller, 3 Ala 343; Fitts v Superior Court of Los Angeles County, 6 Cal 2d 230, 57 P2d 510; State v Symonds, 36 Me 128; State v Stewart, 189 NC 340, 127 SE 260; Commonwealth v Fudeman, 396 Pa 236, 152 A2d 428, cert den 361 US 902, 4 L ed 2d 157, 80 S Ct 211; Re Opinion to Governor, 62 RI 200, 4 A2d 487, 121 ALR 806.

Finding of indictments generally, see Indictments and Informations (1st ed § 30).

	11.   State v Barker, 107 NC 913, 12 SE 115.

	12.   State v Salts, 77 Iowa 193, 39 NW 167, supp op 77 Iowa 200, 41 NW 620.

	13.   State v Hartley, 22 Nev 342, 40 P 372; State v Barker, 107 NC 913, 12 SE 115.

	14.   People v Dale, 79 Cal App 2d 370, 179 P2d 870; State v Belvel, 89 Iowa 405, 56 NW 545; State v Pailet, 139 La 697, 71 So 951; State v Connors, 233 Mo 348, 135 SW 444.

	15.   State v Vincent, 91 Md 718, 47 A 1036.

§ 17. Excusing jurors and completing panel

The court may, in the exercise of a sound discretion or for any good cause shown, discharge or excuse a grand juror on the original panel and fill a vacancy caused thereby, as where the juror is not qualified or is exempt from service. But a person may not be dismissed by the judge from service as a grand juror after an ex parte inquiry in chambers during which the person is charged with being a member of the Communist Party. And it has been held that the fact that a judge thinks one who has been selected for grand jury service by a jury commission will not be satisfactory to him or will fail to do what he thinks a member of the grand jury should do does not give the judge power or authority to dismiss or refuse to impanel that person as a member of a grand jury.

Generally, discharging or excusing some of the grand jurors on the original panel and putting others in their places will not invalidate their action, so long as the number of the newly constituted panel is within the statutory limit. The court may also complete the panel when, either on being first assembled or, having been assembled and discharged, on being reassembled by order of court, any or all members of the grand jury fail to appear. The power vested in the court to complete the panel will be presumed to have been properly exercised.

Specific provision is made in the United States Code as to exclusion or excuse from federal grand jury service.<fn 3>

	16.   Gilmore v State, 229 Ind 359, 98 NE2d 677; State v Stevens, 244 NC 40, 92 SE2d 409; Hammers v State (Okla Crim) 337 P2d 1097; Highers v State (Okla Crim) 337 P2d 1112; Robinson v State, 92 Tex Crim 527, 244 SW 599.

	17.   Gilmore v State, 229 Ind 359, 98 NE2d 677; Posey v State, 86 Miss 141, 38 So 324; State v Stevens, 244 NC 40, 92 SE2d 409.

	18.   Crowder v State, 27 Ala App 522, 175 So 330; Commonwealth v Burton, 31 Va (4 Leigh) 645; State v Westcott, 194 Wis 410, 217 NW 283.

	19.   Commonwealth ex rel. Roth v Musmanno, 364 Pa 359, 72 A2d 263.

	20.   Adame v State, 162 Tex Crim 178, 283 SW2d 223.

	21.   State v Stevens, 244 NC 40, 92 SE2d 409.

	1.   Lanahan v State, 176 Ark 104, 2 SW2d 55.

	2.   Territory v Barth, 2 Ariz 319, 15 P 673.

	3.   28 USC §  1863, which relates to federal juries, both grand and petit, provides that (a) a district judge for good cause may excuse or exclude from jury service any person called as a juror; (b) any class or group of persons may, for the public interest, be excluded from the jury panel or excused from service as jurors by order of the district judge based on a finding that such jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice; and (c) no citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color.

§ 18. Oath

It is a common requisite to the legal organization of a grand jury and to its competency that all the jurors be duly sworn. In some jurisdictions the statutes prescribe the form of the oath to be administered. Where this is the case, the statutory form should be substantially followed.

The form of oath commonly required contains a declaration that the grand jurors will diligently inquire and true presentment make of all such matters and things as shall be given them in charge; that they will keep secret the state's, their fellows', and their own counsel; and that they will present no man for envy, hatred, or malice; neither will they leave any man unpresented for love, fear, favor, affection, or hope of reward, but will present things truly, as they come to their knowledge, according to the best of their understanding. By such an oath, the grand jurors are sworn to secrecy.

It has been held that it is within the discretionary power of a federal district court to impose an oath of secrecy on grand jurors, if the court believes the precaution necessary in the investigation of crime, but there is no federal statute requiring a grand juror to take an oath of secrecy as to the proceedings of a federal grand jury. The Federal Rules of Criminal Procedure specify that jurors, and certain others, may disclose matters occurring before the grand jury only when so directed by the court preliminary to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. But disclosure of matters other than the jury's deliberations and the vote of any juror may be made to government attorneys for use in the performance of their duties.

Under some statutes, persons who are summoned as grand jurors and have conscientious scruples against taking an oath may "affirm" under the pain and penalty of perjury. As to the necessity of showing that those affirming have scruples against the oath, the authorities are in conflict, although by decision or statute the prevailing view is that it is not necessary to show that those affirming had conscientious scruples against taking the oath. It is likewise held that the mode of ascertaining the existence or nonexistence of such conscientious scruples is committed to the discretion of the officer affirming the juror, and such affirmation conclusively establishes that the officer has properly exercised his discretion.

Ordinarily, any officer authorized to administer oaths may lawfully swear the grand jury under the direction of the court. Where the grand jury is sworn by the clerk, it is no ground of objection that he is only the clerk de facto and not de jure. The ordinary practice is to swear first the foreman and then the others. Where one of the grand jurors, for good cause, is not present when the others are sworn, he may be sworn afterward. And since the discharging or excusing of a juror does not ipso facto dissolve the grand jury, it is unnecessary to organize a new grand jury by appointing a foreman and administering the necessary oath to him and his fellow jurors. Only the substituted juror need be sworn.

Unless expressly prohibited by statute, the fact that the grand jury is sworn on a legal holiday will not invalidate its action.

Grand jurors are not judicial officers within a provision of the Constitution of the United States that the executive and judicial officers of the several states shall take an oath to support the Constitution, and are not persons elected or appointed to office within a provision of a state constitution that such persons shall take oath to support the constitutions of the state and of the United States.

	4.   Walton v State, 147 Miss 851, 112 So 790.

Annotations: 127 ALR 274.

A grand jury that has been drawn and summoned but not impaneled and sworn is not in existence and may not perform any of the duties nor exercise any of the powers of a grand jury. State ex rel. Martin v Michell (Fla App) 188 So 2d 684, cert discharged (Fla) 192 So 2d 281.

	5.   People v Lieber, 357 Ill 423, 192 NE 331; State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

	6.   Brown v State, 10 Ark 607; State v Allen, 63 Kan 598, 66 P 628.

	7.   Commonwealth v Woodward, 157 Mass 516, 32 NE 939; People v Pichitino, 337 Mich 90, 59 NW2d 100, cert den 347 US 913, 98 L ed 1069, 74 S Ct 477; State v Iosue, 220 Minn 283, 19 NW2d 735; State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

Annotations: 22 ALR 1357, s. 106 ALR 1383, 120 ALR 438.

	8.   People v Pichitino, 337 Mich 90, 59 NW2d 100, cert den 347 US 913, 98 L ed 1069, 74 S Ct 477.

	9.   Goodman v United States (CA9 Cal) 108 F2d 516, 127 ALR 265.

	10.   Rule 6(e), Fed Rules of Crim Proc (also providing that no obligation of secrecy may be imposed except "in accordance with this rule").

	11.   Commonwealth v Smith, 9 Mass 107; Engeman v State, 54 NJL 247, 23 A 676.

	12.   Commonwealth v Fisher, 73 Mass (7 Gray) 492.

	13.   Bram v United States, 168 US 532, 42 L ed 568, 18 S Ct 183.

	14.   Godbee v State, 141 Ga 515, 81 SE 876; Allen v People, 77 Ill 484.

	15.   Hord v Commonwealth, 31 Va (4 Leigh) 674.

	16.   Brown v State, 10 Ark 607.

	17.   State v Thomas, 61 Ohio St 444, 56 NE 276.

	18.   State v Thomas, supra.

	19.   State v Thomas, supra.

	20.   Adams v State, 214 Ind 603, 17 NE2d 84, 118 ALR 1095.

Annotations: 118 ALR 1098.

§ 19. Charge

Although in a technical legal sense the grand jury may be considered charged when it is sworn, it is proper and usual for the court to instruct and advise the grand jurors as to their duties after they are sworn. Some statutes not only require the court to give such a charge, but also impose on it the duty of including in the charge provisions of the law relating to certain offenses. The jury is not bound, however, to follow the court's instructions as to the law.<fn 5> And such instructions cannot be controlled or corrected by appellate courts.

A wide discretion is generally allowed the presiding judge in directing the attention of a grand jury to particular subjects of inquiry or particular offenses or classes of offenses. But the court should confine itself to calling the jury's attention to crimes generally, and should refrain from giving an inflammatory or prejudicial charge and from expressing any opinion as to the guilt or innocence of any particular person or as to whether there is evidence to warrant the finding of an indictment against him.

The court may, at any time during the sitting of the grand jury and before its final discharge, give that body further charges as to matters as to which they should have been charged but which were overlooked by the court in giving the original charge. It is not deemed essential that the court should deliver anew a full charge to the grand jury after each filling of a vacancy in the panel.

	1.   State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

	2.   State v McCoy, 89 Ind App 330, 166 NE 547; State v Nunez, 147 La 394, 85 So 52; State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

It is the function of the court to charge grand jurors, before they begin their duties, as to their obligations and powers, and they may properly request the court at any time thereafter for further instructions to enable them intelligently to pursue their investigations. Atty. Gen. v Pelletier, 240 Mass 264, 134 NE 407.

	3.   People v Jordan, 292 Ill 514, 127 NE 117; State v Schwab, 109 Ohio St 532, 143 NE 29.

Failure of the court to charge the grand jury as required by statute did not vitiate the whole proceeding or constitute ground for reversal of a conviction under an indictment found by the grand jury where such failure did not cause any advantage to be lost, right destroyed, or benefit sacrificed to which the accused was entitled. Porterfield v Commonwealth, 91 Va 801, 22 SE 352.

	4.   State v Will, 97 Iowa 58, 65 NW 1010.

	5.   United States v Smyth (DC Cal) 104 F Supp 283; State v Lawler, 221 Wis 423, 267 NW 65, 105 ALR 568.

	6.   United States v Smyth (DC Cal) 104 F Supp 283.

Error of the court in its charge to the grand jury preceding the finding of an indictment will not be reviewed. Bethel v State, 162 Ark 76, 257 SW 740, 31 ALR 402.

	7.   Carr v State, 28 Ala App 466, 187 So 252; Clair v State, 40 Neb 534, 59 NW 118; Blake v State, 54 Okla Crim 62, 14 P2d 240.

A statement in the court's charge to the grand jury that "the Commonwealth's attorney does not send all of his witnesses to the grand jury because that is not necessary. He just sends enough to show probable cause" was merely a general statement relating to the procedure to be followed in all cases which may be presented to the grand jury, did not infringe on the function of the grand jury, and was not improper or prejudicial to the accused. Britt v Commonwealth, 202 Va 906, 121 SE2d 495.

The court's charge to the grand jury relating to the scope of inquiry into alleged bribery and corrupt solicitation between police and other officials and those engaged in various forms of gambling in a city properly referred to the ramifications of such a relationship, since the offence of bribery, as employed in the state constitution, included all bribery whether at common law, under a statute, or under the constitution itself. Commonwealth v Butler, 171 Pa Super 350, 90 A2d 838.

	8.   Clair v State, 40 Neb 534, 59 NW 118.

The court in its charge to the grand jury erred in pointing out by name a particular person as a subject of investigation. Blake v State, 54 Okla Crim 62, 14 P2d 240.

	9.   People v Both, 118 Misc 414, 193 NYS 591.

	10.   State v Will, 97 Iowa 58, 65 NW 1010.

	11.   State v Furco, 51 La Ann 1082, 25 So 951.

§ 20. Presumptions as to proper organization

The usual prima facie presumption in favor of legal proceedings is observed in proving by the record that the grand jury has been legally organized. Thus, it is presumed that the grand jury was legally impaneled; that a proper drawing was made from the jury wheel; that the proper officer selected the jury; and that the excusing of a juror was for a proper cause and that the panel was properly completed.

	12.   See 29 Am Jur 2d, Evidence §  170.

	13.   O'Brien v State, 125 Ind 38, 25 NE 137.

The statement in the indictment that the grand jurors on oath present the indictment is sufficient, on proceedings in error after conviction, to show the proper swearing of the grand jury. Powers v United States, 223 US 303, 56 L ed 448, 32 S Ct 281.

	14.   State v Connors, 233 Mo 348, 135 SW 444.

	15.   State v Thomas, 61 Ohio St 444, 56 NE 276.

	16.   Posey v State, 86 Miss 141, 38 So 324.

B. OBJECTIONS AND CHALLENGES

§ 21. Generally

Under the common law, an accused person may interpose many technical objections to the organization of the grand jury, even though they are wholly devoid of substantial merit. These overrefined technicalities are the outgrowth of a system of criminal law of unreasonable severity, and of a humane desire on the part of courts to shield those charged with crime from excessive and cruel punishment. In a number of states, objections which may be taken to defects in the organization of the grand jury are restricted by statutes, the object of which is to end technical objections and secure a trial on the merits. So, where the statute specifically enumerates grounds of objection, other grounds may not be urged. Some of the technical refinements of the early common law are likewise obviated by the operation of the general rule that mere irregularities in proceedings by which a grand juror gets on the panel do not affect the legality of the grand jury's action.<fn 20>

The right of challenge to persons summoned to serve as grand jurors is a right only to object, not to select.

Objections to grand jurors are usually presented by challenge to the array or to the poll.

It has been held that a voir dire examination of grand jurors to discover some possible defect is not permitted.

	17.   McKinney v People, 7 Ill 540; State v Walla, 57 ND 726, 224 NW 211; State v Thomas, 61 Ohio St 444, 56 NE 276; Flynn v State, 203 Tenn 337, 313 SW2d 248, cert den 358 US 839, 3 L ed 2d 75, 79 S Ct 65.

	18.   People v Lay, 193 Mich 17, 159 NW 299; State v Walla, 57 ND 726, 224 NW 211; State v Pickus, 63 SD 209, 257 NW 284.

	19.   State v Walla, 57 ND 726, 224 NW 211.

	20.   Commonwealth v Brown, 187 Mass 585, 18 NE 587; State v Cooley, 72 Minn 476, 75 NW 729.

	1.   State v Mallard, 184 NC 667, 114 SE 17.

	2.   §  22, infra.

	3.   §  24, infra.

	4.   Weekley v State (Del Sup) 222 A2d 781.

§ 22. Challenge to panel or array

A challenge to the panel or array is a formal objection to the entire panel of grand jurors for some illegality in their selection or summoning. The basis of such challenge is that something has been done or omitted to the prejudice of the substantial rights of the challenging party. In some jurisdictions statutes have abolished the right to challenge the array or have restricted the grounds on which this challenge may be made.

Generally, objections to the legality of the organization of the grand jury may be made by anyone under prosecution for an offense to be submitted to the jury's consideration. But the prisoner must apply for leave or request permission to appear and make objection; it is not the duty of the court to bring him into court for the purpose of exercising this privilege.

At common law a challenge to the panel was founded on some partiality or default of the sheriff or his underofficer, or of the clerk who arrayed the panel. Exclusion of certain citizens from the grand jury on account of race or color in violation of their constitutional rights is a ground for challenge to the array, but failure to include women on the jury list was not subject to such challenge prior to the adoption of a constitutional amendment qualifying them for service on the gran0d jury. Noncompliance with essential statutory provisions for selecting, listing, or drawing grand jurors may afford ground for challenge to the array, but mere irregularities in the selection or drawing of the grand jurors do not ordinarily furnish ground for challenge to the array unless prejudice is shown to have resulted therefrom.

When a statute enumerates specific grounds of challenge to the panel or array of grand jurors, the grounds so enumerated are exclusive; no other ground may be interposed.

A person objecting to the selection of the grand jury array has the burden of overcoming the presumption that it was selected in a proper manner.

It has been held that the organization of a grand jury de facto cannot be challenged by a person summoned to testify before it.

	5.   People ex rel. Bonfils v District Court of Second Judicial Dist. 29 Colo 83, 66 P 1068.

The sole method of objecting to the mode of assembling the grand jury is by a challege to the array or a motion to quash the indictment prior to plea. People v Marino, 404 Ill 37, 88 NE 8, cert den 339 US 921, 94 L ed 1345, 70 S Ct 609.

Motion to quash or set aside indictment, see Indictments and Informations (1st ed § § 138-143).

Objections to grand jury by plea in abatement, see 21 Am Jur 2d, Criminal Law § 471.

	6.   State v Walla, 57 ND 726, 224 NW 211.

	7.   People v Pizzimenti, 13 Misc 2d 82, 179 NYS2d 935.

	8.   State v Walla, 57 ND 726, 224 NW 211.

	9.   Sisk v State, 232 Ind 214, 110 NE2d 627, cert den 346 US 838, 98 L ed 360, 74 S Ct 60; Thayer v People (Mich) 2 Dougl 417.

	10.   Sisk v State, 232 Ind 214, 110 NE2d 627, cert den 346 US 838, 98 L ed 360, 74 S Ct 60.

	11.   State v Walla, 57 ND 726, 224 NW 211.

	12.   Cobb v State, 218 Ga 10, 126 SE2d 231, cert den 371 US 948, 9 L ed 2d 497, 83 S Ct 499.

When it is claimed that there has been a discrimination against a race or class in the selection of grand jurors, a challenge to the panel or array at the time of its composition is the proper manner in which to make objections to the composition of the grand jury. Carter v Texas, 177 US 442, 44 L ed 839, 20 S Ct 687; Tillman v State, 121 Ark 322, 181 SW 890; State v Warner, 165 Mo 399, 65 SW 584; Kipper v State, 42 Tex Crim 613, 62 SW 420. Annotation: 52 ALR 924.

	13.   State v Cole, 354 Mo 181, 188 SW2d 43, motion for reh overr 354 Mo 194, 189 SW2d 541.

	14.   State v Goyet, 119 Vt 167, 122 A2d 862.

	15.   May v Commonwealth, 294 Ky 308, 171 SW2d 465; State v Jenkins, 236 La 256, 107 So 2d 632, cert den 359 US 998, 3 L ed 2d 986, 79 S Ct 1135; State v Mallard, 184 NC 687, 114 SE 17; State v Goyet, 119 Vt 167, 122 A2d 862.

	16.   Sullins v State, 79 Ark 127, 95 SW 159; Peeples v State, 46 Fla 101, 35 So 223; State v Richetti, 342 Mo 1015, 119 SW2d 330; State v Walla, 57 ND 726, 224 NW 211.

Where a statute provides that a challenge to the grand jury as a body will lie only for fraud, a challenge for some other ground is properly overruled. Long v State, 133 Miss 33, 96 So 740.

	17.   Beatrice Foods Co. v United States (CA8 Neb) 312 F2d 29, cert den 373 US 904, 10 L ed 2d 199, 83 S Ct 1289.

	18.   Ex parte Haymond, 91 Cal 545, 27 P 859.

§ 23. --Time for making

The right to object to the grand jury presupposes an opportunity to exercise that right. Generally, one must take the first opportunity in his power to make objections. A challenge to the grand jury must be made before impanelment in some jurisdictions, or within the time prescribed by statute or rule in the particular jurisdiction. A plea to the merits is generally regarded as a waiver of all right to take advantage of defects in the organization of the grand jury.

	19.   Due process is violated by a state court's refusal to consider on the merits defendant's objection to the composition of a grand jury because not made before the indictment was returned, where defendant, a semi-illiterate Negro of low mentality charged with a capital crime, was without assistance of counsel until the day after his indictment and the grand jury indicting him was impaneled eight days before his arrest, had adjourned the day before his arrest, and was reconvened two days later by an order which did not list him as one against whom a case would be presented. Reece v Georgia, 350 US 85, 100 L ed 77, 76 S Ct 167, reh den 350 US 943, 100 L ed 822, 76 S Ct 297.

	20.   One notified that his case is to be brought before the grand jury should proceed at once to take exception to its competency; if he waits until an indictment is found, the exception may be too late. Agnew v United States, 165 US 36, 41 L ed 624, 17 S Ct 235.

	1.   Martin v State, 157 Tex Crim 210, 248 SW2d 126.

	2.   Poliafico v United States (CA6 Ohio) 237 F2d 97, cert den 352 US 1025, 1 L ed 2d 597, 77 S Ct 590, reh den 353 US 931, 1 L ed 2d 725, 77 S Ct 718; State v Boyle, 44 Del 414, 61 A2d 121; People v Lieber, 357 Ill 423, 192 NE 331; People ex rel. Heal v Foster, 196 Misc 441, 92 NYS2d 807.

See Michel v Louisiana, 350 US 91, 100 L ed 83, 76 S Ct 158, reh den 350 US 955, 100 L ed 831, 76 S Ct 340, holding that statute requiring that objections to a grand jury be raised before expiration of the third judicial day following the end of the grand jury's term or before trial, whichever is earlier, does not, on its face, violate due process by raising an insuperable barrier to one making claim to federal rights; the test is whether defendant has had a reasonable opportunity to have the issue as to claimed rights heard and determined by the state court, and a three-day minimum for raising objections to the grand jury is not unreasonable.

	3.   State v Fuller, 164 La 718, 114 So 606.

§ 24. Challenge to polls

A challenge to the polls is a formal objection to one or more individual members or prospective members of a grand jury panel for some personal disqualification. Although the authorities are not agreed as to the right to challenge grand jurors at common law, they generally recognize the right of a prospective defendant in a criminal case to challenge the qualifications of individuals summoned to serve on the grand jury which will consider his case, subject to such limitations as may be prescribed by statute. A challenge to an individual grand juror may ordinarily be made only for grounds enumerated by statute.

Some cases indicate that a prosecuting attorney has the right to challenge prospective grand jurors, but it has been held in other cases that he does not have the right to make such challenge in the absence of express statutory authority.

It has been said that an objection to the competency of a grand juror may be made by an amicus curiae.

In regard to the persons who may object to alleged discriminatory action in excluding members of a race or class from the grand jury, it seems that the objection of discrimination is available only to members of the race or class discriminated against. Thus, it is held that a white person cannot object to the exclusion of Negroes from a grand jury, and that male defendants are not entitled to complain of the unlawful exclusion of women from jury service.

	4.   People ex rel. Bonfils v District Court of Second Judicial Dist. 29 Colo 83, 66 P 1068.

Annotations: 169 ALR 1169.

	5.   Hudspeth v State, 50 Ark 534, 9 SW 1.

	6.   United States v Richardson (CC Me) 28 F 61; People ex rel. Bonfils v District Court of Second Judicial Dist. 29 Colo 83, 66 P 1068; Stipp v State, 187 Ind 211, 118 NE 818; People v Thompson, 122 Mich 411, 81 NW 344; State v Ames, 90 Minn 183, 96 NW 330; State v Shawley, 334 Mo 352, 67 SW2d 74; William J. Burns International Detective Agency v Doyle, 46 Nev 91, 208 P 427, 26 ALR 600; People v Prior, 294 NY 405, 63 NE2d 8, 169 ALR 1157, reh den 294 NY 975, 63 NE2d 710; Conklin v State, 144 Tex Crim 210, 162 SW2d 416; State ex rel. Murphy v Superior Court, 82 Wash 284, 144 P 32.

Annotations: 169 ALR 1170.

	7.   Gridley v United States (CA6 Mich) 44 F2d 716, cert den 283 US 827, 75 L ed 1441, 51 S Ct 351, and petition for new trial den (DC) 49 F2d 908; State v Winsett (Del) 200 A2d 692, disapproved on other grounds (Del Sup) 215 A2d 247; People v Lay, 193 Mich 17, 159 NW 299; State v Richetti, 342 Mo 1015, 119 SW2d 330; People v Prior, 294 NY 405, 63 NE2d 8, 169 ALR 1157, reh den 294 NY 975, 63 NE2d 710; State v Walla, 57 ND 726, 224 NW 211; Staton v State, 93 Tex Crim 356, 248 SW 356.

	8.   State v Bradford, 57 NH 188; People v Prior, 294 NY 405, 63 NE2d 8, 169 ALR 1157, reh den 294 NY 975, 63 NE2d 710.

Annotations: 169 ALR 1173.

Under a statute expressly so providing, the state or the person charged may challenge the panel or an individual grand juror. State v Lewis, 152 Fla 178, 11 So 2d 337.

	9.   State v Ingels, 4 Wash 2d 676, 104 P2d 944, cert den 311 US 708, 85 L ed 460, 61 S Ct 318.

	10.   Keitler v State (Iowa) 4 G Greene 291.

	11.   State v Lang, 75 NJL 502, 68 A 210, affd 209 US 467, 52 L ed 894, 28 S Ct 594.

	12.   §  14, supra.

	13.   State v Wilson, 235 Iowa 538, 17 NW2d 138.

	14.   Commonwealth v Wright, 79 Ky 22.

Annotations: 52 ALR 922; 82 L ed 1064.

	15.   State v Jones, 44 Del 372, 57 A2d 109; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v James, 96 NJL 132, 114 A 553, 16 ALR 1141; McKinney v State, 3 Wyo 719, 30 P 293.

Annotations: 9 ALR2d 669, § 9; 82 L ed 1064.

§ 25. --When made; waiver of right to challenge

A challenge based on the disqualification of an individual grand juror must be seasonably made. Some courts, without making mention of any possible exception, have held that the right to challenge a prospective grand juror is waived unless it is exercised before the grand jury has been impaneled. Other courts have taken the position that the right to challenge a prospective juror must be exercised by an accused before the grand jury has been impaneled, but that failure to do so does not constitute a waiver if the accused has not had the opportunity to confront the individual grand jurors before consideration of his case.

In any event, though the accused is excused because he had no opportunity to exercise his right of challenge before the grand jury was impaneled, it appears that he waives his right if he does not raise the question before the matter goes to trial by an appropriate objection, such as a motion to quash the indictment or a plea in abatement.

	16.   Mitchell v State, 69 Ga App 771, 26 SE2d 663.

Under a statute so contemplating, a person held to answer to the grand jury must interpose his challenge to a grand juror at the time the jury is impaneled. William J. Burns International Detective Agency v Doyle, 46 Nev 91, 208 P 427, 26 ALR 600.

	17.   Howell v State, 102 Fla 612, 136 So 456, on reh 102 Fla 613, 139 So 187; Patrick v State, 16 Neb 330, 20 NW 121; McComb v Fourth Judicial Dist. Court, 36 Nev 417, 136 P 563; State v Easter, 30 Ohio St 542.

Annotations: 169 ALR 1173.

A statute providing that no exception to a grand juror because of lack of the required qualifications shall be allowed after the juror is sworn or affirmed does not deprive a person indicted for a crime committed after the grand jury has been impaneled of the equal protection of the laws. Lang v New Jersey, 209 US 467, 52 L ed 894, 28 S Ct 594.

	18.   People v Lauder, 82 Mich 109, 46 NW 956; State v Shawley, 334 Mo 352, 67 SW2d 74; Conklin v State, 144 Tex Crim 210, 162 SW2d 416.

	19.   United States v Gale, 109 US 65, 27 L ed 857, 38 S Ct 1.

	20.   See Indictments and Informations (1st ed § §  138 et seq.).

IV. POWERS AND DUTIES

§ 26. Generally

Under the ordinary conception it is the duty of a grand jury to guard the rights and liberties of the people; it has supervision of the enforcement of law and order, the preservation and protection of morals and social order, and the care of bringing to light for examination, trial, and punishment all violence, outrages, and indecencies. The most valuable function of the grand jury is not only to examine into the commission of crimes, but to stand between the prosecutor and the accused; that is, to protect the citizen against unfounded accusations, whether they come from the government or are prompted by partisan passion or private enmity.

An investigation by a grand jury, when directed by the court, involves all the powers and incidents necessary to a complete inquiry into the subject matter in charge.

The powers of a federal grand jury are to be construed by interpreting the federal law under which it is set up; these powers are coextensive with and limited by the jurisdiction of the court of which the grand jury is an appendage. Though reference to a grand jury in the Federal Constitution and statutes is to a grand jury as then known at common law, the courts, in investigating the historical growth of this inquisitorial body, have differed as to the scope of its powers, and it has been said that Congress has not defined such powers or designated the exact limitations on them.

Grand jurors have been held exempt from civil suit for malicious prosecution in the performance of their official duties, even though they maliciously find a true bill against an innocent person. But it has been held that when a report of a grand jury does not amount to an indictment or presentment, it is not privileged and may be the basis for a libel action.

	1.   McNair's Petition, 324 Pa 48, 187 A 498, 106 ALR 1373.

See Re Presentment by Camden County Grand Jury, 10 NJ 23, 89 A2d 416, wherein the court stated that "We must constantly keep in mind . . . that the sound administration of government at every level depends in large measure on enlightened and informed public opinion and that in this field the grand jury not only has rights but grave responsibilities."

	2.   State v Bramlett, 166 SC 323, 164 SE 873.

	3.   Hoffman v United States, 341 US 479, 95 L ed 1118, 71 S Ct 814.

	4.   Maley v District Court of Woodbury, 221 Iowa 732, 266 NW 815, ovrld on other grounds Uhl v District Court of Monona, 231 Iowa 1046, 2 NW2d 741.

	5.   Homan Mfg. Co. v Russo (CA7 Ill) 233 F2d 547; McNair's Petition, 324 Pa 48, 187 A 498, 106 ALR 1373.

	6.   United States v Warren (DC NY) 26 F Supp 333.

	7.   Application of United Electrical, R. & M. Workers (DC NY) 111 F Supp 858.

	8.   United States v Warren (DC NY) 26 F Supp 333.

	9.   Application of Texas Co. (DC Ill) 27 F Supp 847.

	10.   Yaselli v Goff (CA2) 12 F2d 396, 56 ALR 1239, affd 275 US 503, 72 L ed 395, 48 S Ct 155.

	11.   Turpen v Booth, 56 Cal 65.

	12.   Matthews v Pound (Ky) 403 SW2d 7.

§ 27. Manner of exercising inquisitorial powers

In some jurisdictions a grand jury may institute an investigation of suspected violations of law, and the exercise of inquisitorial power need not be preceded by the submission of a formal charge to the grand jury or by the approval of the court. In support of this view, it has been said that the oath administered to the grand jury clearly indicates its right to act on its own volition. But in some states the grand jury has no power to initiate an investigation, or its investigations are limited to matters to which its attention is called by the court or submitted for its consideration by the prosecuting officer.

The grand jury may act on the testimony of one of its members under oath or on the personal knowledge of any of its members communicated to his fellows under no other sanction than the grand juror's oath. The knowledge of the members may be acquired from any source, whether from witnesses brought before the grand jury or from information gained prior to its sessions. And it appears that the rule that illegally seized evidence cannot be introduced in a criminal trial does not apply to grand jury proceedings.

The duty of the grand jury is to inquire diligently into all offenses which come to its knowledge, whether from the court, the prosecuting officer, its own members, or from any source.

The grand jury's investigation and full duty are not performed unless and until every clue has been run down and all witnesses examined in every proper way to find out if a crime has been committed, and to charge the proper person with the commission thereof. Its investigating authority is continuous, and not exhausted or limited by adverse action or by failure to act. And its power to investigate and indict is not affected by the pendency of other proceedings, such as a preliminary hearing before a magistrate, or by the fact that the defendant had been discharged at such a hearing. But once the grand jury itself has been discharged, it cannot be called back to take further action.

	13.   Re Hawkins (Sup) 50 Del 61, 123 A2d 113.

	14.   Blair v United States, 250 US 273, 63 L ed 979, 39 S Ct 468; Re April 1956 Term Grand Jury (CA7 Ill) 239 F2d 263; Baker v State, 183 Ind 1, 108 NE 7; Ward v State, 2 Mo 120.

A grand jury may act without any instruction or authority from the court. People v Polk, 21 Ill 2d 594, 174 NE2d 393.

	15.   Re April 1956 Term Grand Jury (CA7 Ill) 239 F2d 263; State v Smith, 101 Or 127, 199 P 194, 16 ALR 1220.

The power and duty of the grand jury to investigate is original and complete, susceptible of being exercised on its own motion and on such knowledge as it may derive from any source it may deem proper, and is not, therefore, dependent for its exercise on the approval or disapproval of the court. United States v Thompson, 251 US 407, 64 L ed 333, 40 S Ct 289.

The grand jury's powers are not dependent on the court, but are original and complete. People v Polk, 21 Ill 2d 594, 174 NE2d 393; State v Iosue, 220 Minn 283, 19 NW2d 735.

	16.   Re April 1956 Term Grand Jury (CA7 Ill) 239 F2d 263; State v Smith, 52 NJ Super 556, 146 A2d 224.

	17.   Hale v Henkel, 201 US 43, 50 L ed 652, 26 S Ct 370, disapproved on other grounds Murphy v Waterfront Com. of New York Harbor, 378 US 52, 12 L ed 2d 678, 84 S Ct 1594; McNair's Petition, 324 Pa 48, 187 A 498, 106 ALR 1373.

	18.   State v Kemp, 126 Conn 60, 9 A2d 63.

	19.   Application of Third September, 1958 Grand Jury, etc. 19 Misc 2d 682, 193 NYS2d 553.

	20.   Commonwealth v McNary, 246 Mass 46, 140 NE 255, 29 ALR 483; State v Smith, 52 NJ Super 556, 146 A2d 224.
	1.   Re April 1956 Term Grand Jury (CA7 Ill) 239 F2d 263; Commonwealth v McNary, 246 Mass 46, 140 NE 255, 29 ALR 483; State v Smith, 52 NJ Super 556, 146 A2d 224.

	2.   Coblentz v State, 164 Md 558, 166 A 45, 88 ALR 886.

Grand jurors may act on knowledge acquired from their own observation as well as from the evidence of witnesses given before them. Goodman v United States (CA9 Cal) 108 F2d 516, 127 ALR 265.

	3.   West v United States (CA8 Neb) 359 F2d 50 (pointing out that Supreme Court has held that fact that grand jury considered inadmissible evidence does not render indictment defective), cert den 385 US 867, 17 L ed 2d 94, 87 S Ct 131.

	4.   People v Polk, 21 Ill 2d 594, 174 NE2d 393; State v Iosue, 220 Minn 283, 19 NW2d 735.

	5.   United States v Collins (CA2 NY) 272 F2d 650, 88 ALR2d 847, cert den 363 US 911, 4 L ed 2d 619, 80 S Ct 681, reh den 362 US 957, 4 L ed 2d 874, 80 S Ct 859.

	6.   United States v Thompson, 251 US 407, 64 L ed 333, 40 S Ct 289.

	7.   People ex rel. Hirschberg v Close, 1 NY2d 258, 152 NYS2d 1, 134 NE2d 818.

	8.   Matthews v Pound (Ky) 403 SW2d 7.

§ 28. Limitations on powers

As to matters that may be investigated by a grand jury, the various statutes, if explicit, are controlling. But generally, this is not the case, and the investigating powers are very broad, as evidenced by the form of the oath given grand jurors.

A grand jury has power to investigate any crime over which the supervising court has jurisdiction. But sometimes a grand jury has wide authority of investigation, and may inquire into matters beyond the jurisdiction of the court which appointed it.

Notwithstanding the broad investigating powers of the grand jury in criminal matters, certain limitations thereon have been suggested. Broadly speaking, the grand jury is bound and limited by the proscriptions of the law which calls it into existence.

Some cases have said that a grand jury investigation may not be had to accomplish an "ulterior" purpose, though what constitutes an "ulterior" purpose appears to depend on the facts involved in each particular instance. In any event, the indiscriminate summoning of witnesses in a spirit of meddlesome inquiry, on the mere chance that some crime may be discovered, is forbidden under the rules of the common law. A grand jury has no right to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved, or where it otherwise lacks jurisdiction of the subject matter. But this does not mean that the scope of inquiry is to be narrowly limited by forecasts of the probable result of the investigation. Nor is the grand jury required to state in a subpoena to a witness the subject matter of the investigation or against whom the inquiry is directed.

Other limitations are apparent in that part of the oath by which each juror deposes that he will present no man from envy, hatred, or malice; in the provision in the Federal Constitution, commonly found also in the state constitutions, against unreasonable searches and seizures; and in the rule that the grand jury may not employ a detective to secure evidence as to matters under investigation. But statutes setting up special investigating bodies for particular offenses have been construed not to limit the power of the grand jury to make investigations as to such offenses.

Generally, a grand jury has no power to investigate transactions or acts occurring wholly outside its county, not connected with law violations in its county or triable therein.

Although a grand jury has the right to investigate and report on whether public employees or officers are incompetent or lax in the performance of the duties imposed on them, or lacking in the common courtesy attaching to such duties, it may not investigate the official conduct of the executive branch of the government, even where the commission of a crime is charged in connection with, or as a result of, acts performed by such branch in its official capacity.

	9.   The oath assigns no limits, except those marked by diligence itself, to the course of the grand jury's inquiries. The jury is not appointed for the prosecutor or for the court; it is appointed for the government and for the people; and both the government and the people are surely concerned, on the one hand, that all crimes, whether given or not given in charge to the grand jury and whether described or not described with professional skill, should receive the punishment which the law denounces, and on the other hand, that innocence, however strongly assailed by accusations drawn up in regular form, and by accusers marshaled in legal array, should, on full investigation, be securely protected. Hale v Henkel, 201 US 43, 50 L ed 652, 26 S Ct 370, disapproved on other grounds Murphy v Waterfront Com. of New York Harbor, 378 US 52, 12 L ed 2d 678, 84 S Ct 1594, motion to retax costs den 379 US 898, 13 L ed 2d 174, 85 S Ct 183.

Annotations: 22 ALR 1357, s. 106 ALR 1383, 120 ALR 437.

	10.   Heard v Pierce, 8 Cush (Mass) 338; Ex parte Jennings, 91 Tex Crim 612, 240 SW 942, 22 ALR 1351.

	11.   People v Stern, 3 NY2d 658, 171 NYS2d 265, 148 NE2d 400.

	12.   Ex parte Jennings, 91 Tex Crim 612, 240 SW 942, 22 ALR 1351.

	13.   Re Black (CA2 NY) 47 F2d 542.

Annotations: 22 ALR 1361, s. 106 ALR 1386, 120 ALR 437.

	14.   Hale v Henkel, 201 US 43, 50 L ed 652, 26 S Ct 370, disapproved on other grounds Murphy v Waterfront Com. of New York Harbor, 378 US 52, 12 L ed 2d 678, 84 S Ct 1594, motion to retax costs den 379 US 898, 13 L ed 2d 174, 85 S Ct 183; Ex parte Jennings, 91 Tex Crim 612, 240 SW 942, 22 ALR 1351.

Where the investigation is one required to be ordered by the court, under restrictions on the powers of the grand jury, the general rule that the investigation may not be a mere "fishing expedition" or a blanket inquiry for speculative purposes is applicable. It has been so held in respect of an investigation where it appears that a system of crime exists among public officials. McNair's Petition, 324 Pa 48, 187 A 498, 106 ALR 1373.

	15.   People v Polk, 21 Ill 2d 594, 174 NE2d 393.

	16.   Blair v United States, 250 US 273, 63 L ed 979, 39 S Ct 468.

	17.   Re Black (CA2 NY) 47 F2d 542.

	18.   §  18, supra.

	19.   Consolidated Rendering Co. v Vermont, 207 US 541, 52 L ed 327, 28 S Ct 178; Ex parte Brown, 72 Mo 83.

Annotations: 52 L ed 327.

	20.   William J. Burns International Detective Agency v Doyle, 46 Nev 91, 208 P 427, 26 ALR 600.

Annotations: 26 ALR 605.

	1.   State v Blocker, 14 Ala 450; Miller v Price, 260 Ky 488, 86 SW2d 152; Ward v State, 2 Mo 120.

Annotations: 22 ALR 1363, s. 106 ALR 1387, 120 ALR 437.

Powers conferred by statute on the attorney general to investigate any violation of the law within the executive branch does not exclude an investigation by the grand jury on charges properly presented. Dauphin County Grand Jury Investigation, 332 Pa 289, 2 A2d 783, 120 ALR 414.

	2.   Oklahoma Tax Com. v Clendinning, 193 Okla 271, 143 P2d 143, 151 ALR 1035.

	3.   Ryon v Shaw (Fla) 77 So 2d 455, 48 ALR2d 713.

	4.   Dauphin County Grand Jury Investigation, 332 Pa 289, 2 A2d 783, 120 ALR 414.

§ 29. Power to investigate civil matters

In the absence of special statutory authorization, grand juries cannot act in civil matters. A grand jur