Before anyone can stand trial for a federal criminal offense he (or she) is supposed to be indicted by a grand jury, supposedly 16 to 23 of his fellow citizens acting independently of either the prosecuting attorney or the judge.

The grand jury, having made an "investigation" (as every practicing attorney knows, no grand jury ever makes an investigation as it is simply a mindless mob that uses a prosecutor for a brain), dutifully returns a "true bill."

Another human being is then faced with being deprived with ten, twenty, or more years of his life being taken away in the current farce known as a "jury trial," complete with a biased judge, unethical prosecutor, lying government witnesses and, of course, defense attorneys who can most charitably be described as human slugs (who make little or no effort to restore their client--or victim--to his former life via an acquittal).

In times past there were elaborate procedural safeguards to ensure that a man didn't lose his liberty through slight or careless investigation.  One of the most important of those procedures was the method of recording the names of those who voted the indictment.

Today that vote simply consists of the grand jury foreman asking for a "show of hands" to put someone on trial.  The foreman counts the number of raised hands, writes the number on a "concurrence form" (or ballot) signs on a form provided by the Administrative Office of the United States Courts, and signs his name underneath that number.

In times past the grand jurors - there had to be a minimum of twelve (12) concurring in the finding of the indictment--all signed their names on the ballot or the indictment itself or answered in open court as to how they voted (or both).

The present system not only provides a refuge for dozen of anonymous cowards who simply would not sign their names to the injustices they know full well they are visiting upon their fellow citizens (federal gun laws, drug laws, IRS crime, etc.).

The procedures discussed in this article are found in Federal Rule of Criminal Procedure 6, Title 18 United States Code.  All of Rule 6 is reproduced:

Rule 6. The Grand Jury

(a) Summoning Grand Juries.

(1) Generally. The court shall order one or more grand juries to be summoned at such time 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.

(2) Alternate Jurors. The court may direct that alternate jurors may be designated at the time a grand jury is selected.  Alternate jurors in the order in which they were designated may thereafter be impanelled as provided in subdivision (g) of this rule.  Alternate jurors shall be drawn in the same manner and shall have the same qualifications as the regular jurors, and if impanelled shall be subject to the same challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors.

(b) Objections to Grand Jury and to Grand Jurors.

(1) Challenges. The attorney for the government or a defendant who has been held to answer in the district court may challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified.  Challenges shall be made before the administration of the oath to the jurors and shall be tried by the court.

(2) Motion To Dismiss. A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualification of an individual juror, if not previously determined upon challenge.  It shall be made in the manner prescribed in 28 U.S.C. § 1867(e) and shall be granted under the conditions prescribed in that statute.  An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.

(c) Foreperson and Deputy Foreperson. The court shall appoint one of the jurors to be foreperson and another to be deputy foreperson.  The foreperson shall have power to administer oaths and affirmations and shall sign all indictments.  The foreperson or another juror designated by the foreperson shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court.  During the absence of the foreperson, the deputy foreperson shall act as foreperson.

(d) Who May Be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

(e) Recording and Disclosure of Proceedings.

(1) Recording of Proceedings. All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device.  An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution.  The recording or reporter's notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the government unless otherwise ordered by the court in a particular case.

(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.  No obligation of secrecy may be imposed on any person except in accordance with this rule.  A knowing violation of Rule 6 may be punished as a contempt of court.

(3) Exceptions.

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to -

(i) an attorney for the government for use in the performance of such attorney's duty; and

(ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law.  An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made -

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding;

(ii) when permitted by a 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;

(iii) when the disclosure is made by an attorney for the government to another federal grand jury; or

(iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.

(D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed in the district where the grand jury convened.  Unless the hearing is ex parte, which it may be when the petitioner is the government, the petitioner shall serve written notice of the petition upon

(i) the attorney for the government,

(ii) the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and

(iii) such other persons as the court may direct.  The court shall afford those persons a reasonable opportunity to appear and be heard.

(E) If the judicial proceeding giving rise to the petition is in a federal district court in another district, the court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper.  The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy.  The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard.

(4) Sealed Indictments. The federal magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.  Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.

(5) Closed Hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury.

(6) Sealed Records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.

(f) Finding and Return of Indictment. An indictment may be found only upon the concurrence of 12 or more jurors.  The indictment shall be returned by the grand jury to a federal magistrate judge in open court.  If a complaint or information is pending against the defendant and 12 jurors do not concur in finding an indictment, the fore-person shall so report to a federal magistrate judge in writing forthwith.

(g) Discharge and Excuse. A grand jury shall serve until discharged by the court, but no grand jury may serve more than 18 months unless the court extends the service of the grand jury for a period of six months or less upon a determination that such extension is in the public interest.  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.

These rules were supposed to give guidance to the courts in how to follow the earlier, constitutional procedures (apparently unknown to the people who wrote the rules, unfortunately).

Compare the rules, above, to the questions raised by them and the procedures in modern federal courts, below:

Rule 6(a):  Were there in fact 16 to 23 members of the grand jury present at the session that indicted the criminal defendant?  If so, was a record kept of the names of those individuals?  It was in this country before the American Revolution, under common law.  Trial of Major Bonnet and Others, 15 State Trials 1231 (So. Carolina 1718) (23 grand jurors called and sworn, names recorded).

Rule 6(b)(1):  How can one challenge any array of grand jurors if their names were not recorded?

Rule 6(b)(2):  How can one challenge the legal qualifications of a single grand juror if the names of those who voted to indict were not recorded?  See, e.g., U.S. v. Thompson, 144 F. 2d 604, 606 (2nd Cir. 1944) (Honorable Learned Hand naming disqualified jurors).  See also U.S. v. Williams, Federal Case No. 16, 716 (C.Ct.D. Minn. 1871) (names of grand jurors finding indictment).

Rule 6(c):  The Rule 6(c) voting record filed with the clerk of the court in this case is simply a standard form supplied by the Administrative Office (form DC 530 identifying the court, the date, the location, the number of grand jurors concurring to indict and the signature of the grand jury foreperson.  U.S. v. Deffenbaugh Industries, Inc., 957 F. 2d 749, 757 (10th Cir. 1992).  If twelve or more grand jurors voted to indict the certificate of the foreman is not conclusive evidence of that fact.  U.S. v. Terry, 39 F. 355, 357-358 (D.C.N.D. Cal. 1889).

  I.e., if only the number of grand jurors voting to indict is recorded and not their names, Rule 6(b)(2) is rendered mere surplusage.  Courts may not construe a statute so as to make any part of it mere surplusage.  U.S. v. Monroe, 943 F. 2d 1007, 1015 note 8 (9th cir. 1991).

Once Rule 6(b)(2) and its intent have been ignored there is no way to verify whether twelve or more legally qualified jurors voted to indict or the grand jury foreman simply scribbled a number he thought appropriate over his signature.  No investigation can ever be made as to how a grand juror voted.  United States v. Kilpatrick, 16 F. 765, 770 (D.C.W.D. N.C. 1883).

The failure to record the names of the twelve or more grand jurors who voted to indict Defendant/Appellant renders the indictment void.

Michael H. Brown, author of: The Erwin Rommel School of Law: How to Defeat an Illegal Legal System

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This page was updated on November 29, 2006