The grand jury is an essential component of the enforcement of the criminal laws of the United States. Its nature and role derive principally from three sources: the United States Constitution, pre-constitutional history, and Rule 6 of the Federal Rules of Criminal Procedure.
The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred.
Rule 6(a) of the Federal Rules of Criminal Procedure provides: "The court shall order one or more grand juries to be summoned as the public interest requires." Empanelment should occur in open court unless extremely unusual circumstances require exclusion of the public. Either party can challenge the legal authority of a grand jury if the jurors were not legally qualified or properly selected.
A grand jury shall consist of at least 16, but no more than 23, grand jurors summoned by the district court. The court may designate alternate grand jurors at the time a grand jury is selected. Thereafter, in the event the court excuses one of the initially selected jurors, it may then impanel the alternate. Courts in every federal judicial district empanel grand juries of 23 persons.
Federal grand juries generally serve for 18 months. The 18 months begin to run from the date of empanelment. However, the district court may discharge the jury earlier, or extend the jury's service six additional months, if it finds the extension to be in the public interest. The scheduled days for grand jury sessions widely vary. In some smaller districts the grand jury is called into session for, at most, a period of one to five consecutive days each month. In some larger districts, there are several grand juries operating simultaneously every day.
In the event a grand juror has a serious conflict of interest concerning a matter under investigation, the prosecutor may move to excuse that juror for cause. Jurors may also be excused because of illness, relocation, or extreme hardship. If a grand juror has a conflict of interest with regard to only one matter before the grand jury, that juror may be excused from hearing that matter only. This generally will not result in the juror being excused permanently from the grand jury panel.
In order for the transaction of business to occur, a quorum must be present consisting of 16 of the 23 members of the grand jury. If fewer than this number is present, even for a moment, the proceedings of the grand jury must stop.
From those selected to be members of the grand jury, the district court must appoint one to be "foreperson," and another to be "deputy foreperson." Of the 16 grand jurors present, only the foreperson and, in his or her absence, the deputy foreperson, have the power to swear witnesses, interpreters, and stenographers, and to sign indictments.
A principal function of the modern federal grand jury is to decide whether to approve, or "return," an indictment charging federal felony violations (indictments containing felony charges may contain misdemeanor charges as well). To make that decision, the grand jury must determine whether a crime has been committed, and if the individual charged in the indictment committed it. Indictments may be found only upon the concurrence of twelve or more jurors. If it votes in favor of the indictment, the foreperson, or in his or her absence the deputy foreperson, must sign the indictment and complete the record of the number of jurors concurring. The indictment may be filed before a federal district judge or magistrate judge, and absent a reason for sealing, must be filed in open court. The foreperson must file the record of concurring jurors with the clerk, who must keep it secret unless the court orders disclosure.
When fewer than 12 jurors vote in favor of a proposed indictment, the result is called returning a "no true bill" or a "no bill". If the grand jury returns a no true bill as to a defendant against whom a complaint or information is pending, the foreperson is required to report that action to a federal magistrate in writing forthwith.
If a grand jury refuses to indict, the prosecutor may resubmit evidence to a different grand jury. However, once a grand jury declines to return an indictment on the merits, Department policy requires the approval of the responsible United States Attorney prior to re-submission.