When the FBI Comes Calling…®
THE GRAND JURY (Continued)
The Process
The Federal Rules of Criminal Procedure govern the grand jury process. A grand jury has anywhere from 16 to 23 members, and alternates can be selected. FRCrP 6(a)(1). One person is appointed as the foreperson, and another as deputy foreperson; the foreperson administers oaths and affirmations, and signs all indictments. Id. 6(c). The number of jurors concurring in the indictment will be recorded, but the record is not made public "unless the court so orders." Id. Grand jurors, interpreters, court reporters, transcribers, and government attorneys have an obligation not to disclose a matter than occurs before the grand jury. Id. 6(e)(2)(B).
A federal grand jury is a purely one-sided affair. Under the FRCrP, the only people who may be present while the grand jury is in session are: "attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device." FRCrP 6(d)(1). You will notice that the target (unless he happens to be the witness), and the attorney for the target are not among those listed. After the government provides its, and only its, version of the facts that supports its thesis that the target of the investigation committed a federal crime-including evidence that would be inadmissible at trial, such as hearsay evidence (USAM 9-11.232)-the grand jury will deliberate about whether an indictment should issue. It can indict the target "only if at least 12 jurors concur." Id. 6(f). This means that, on a 23-member grand jury, an indictment can issue when a bare majority votes to indict.
The indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. FRCrP 7(c)(1). It must be signed by an attorney for the government, and it need not contain a formal introduction or a conclusion. Id. Each count of the indictment may allege that the means "by which the defendant committed the offense are unknown." Id. For each count, the relevant statute must be provided, id., but in the event that an error is made and a citation is omitted or a different offense is charged than was intended, it is not fatal unless the defendant was misled and thereby prejudiced. Id. 7(c)(3).
Often the indictment will be sealed, or kept secret, until the defendant is in custody, and people involved in the indictment are under an obligation to keep its existence secret. FRCrP 6(e)(4).
At this point, the individual who has been indicted often is not aware that he has been indicted, and the US Attorney and a federal agent will walk out of the grand jury room, walk down the hall to the Federal Magistrate Judge, and in over 99% of the cases, an arrest warrant is issued. The "target" is now the "defendant."