Rule 2.3. Grand jury

2.3(1) Drawing grand jurors. At such times as prescribed by the chief judge of the district

court, the grand jurors shall be drawn using the methods authorized by rule 2.18(2) for random

selection of prospective petit jurors. A grand jury shall have seven jurors. If any jurors so drawn

are excused by the court or fail to attend on the day designated for their appearance, the clerk

shall draw additional names until seven grand jurors are secured.

2.3(2) Convening the grand jury. The grand jury shall meet at times specified by order of a

district judge, at the request of the prosecuting attorney, or upon the request of a majority of the

grand jurors.

2.3(3) Challenge to the grand jury.

a. Challenge to the grand jury. The grand jury may be challenged upon any ground set forth in

rule 2.18(4). If the challenge is sustained, the court shall take remedial action to select a proper

grand jury.

b. Challenge to individual jurors. A challenge to an individual grand juror may be made upon

any ground in rule 2.18(5) except for that in rule 2.18(5)(g).

c. Timing of challenges. Challenges to the grand jury or to an individual grand juror must be

made and decided, if possible, before the grand jury is sworn in.

d. Motion to dismiss. Where the grounds for the challenge could not have been raised earlier, a

defendant may raise a challenge to the grand jury or to an individual grand juror by filing a

motion to dismiss the indictment.

2.3(4) Excusing and discharging grand jurors.

a. Excusing jurors. If the court excuses a juror, the court may impanel another person in place

of the juror excused. If the grand jury has been reduced to fewer than seven jurors, the additional

jurors required to fill the panel shall be summoned first from the grand jurors originally

summoned who were not previously impaneled. If those jurors have been exhausted, the

additional number required shall be drawn from the grand jury list.

juror, the court may impanel another person in place

of the juror excused. If the grand jury has been reduced to fewer than seven jurors, the additional

jurors required to fill the panel shall be summoned first from the grand jurors originally

summoned who were not previously impaneled. If those jurors have been exhausted, the

additional number required shall be drawn from the grand jury list.

b. Discharging jurors. The grand jury shall be discharged by order of the court at the request

of the prosecuting attorney. The regular term of a grand jury should not normally exceed one

calendar year. However, when an investigation undertaken by the grand jury is incomplete, the

court may extend the grand jury’s service to the completion of the investigation.

2.3(5) Duties of grand jury. The grand jury shall inquire into all indictable offenses brought

before it that may be tried within the county, and present them to the court by indictment. The

grand jury has the special duty to inquire into:

a. The case of any person imprisoned in the detention facilities of the county on a criminal

charge and not indicted.

b. The condition and management of the public prisons, county institutions, and places of

detention within the county.

c. The unlawful misconduct in office of public officers and employees in the county.

2.3(6) Oaths and procedure.

a. Foreperson. The court shall appoint a foreperson and, if desired, an assistant foreperson

from among the grand jurors. When the foreperson or assistant foreperson already appointed

becomes unable to complete their service before the grand jury is finally discharged, a substitute

foreperson or assistant foreperson shall be appointed. The foreperson or assistant foreperson of

the grand jury shall administer the oath to all witnesses produced and examined before it.

b. Clerks and court reporters. The court may appoint a competent person who is not a member

of the grand jury as its clerk

le to complete their service before the grand jury is finally discharged, a substitute

foreperson or assistant foreperson shall be appointed. The foreperson or assistant foreperson of

the grand jury shall administer the oath to all witnesses produced and examined before it.

b. Clerks and court reporters. The court may appoint a competent person who is not a member

of the grand jury as its clerk. In addition, the court may appoint assistant clerks to the grand jury

who are also not members. If the court makes no such appointments, the grand jury shall appoint

as its clerk a member who is not its foreperson. The court may appoint a court reporter to record

the grand jury proceedings. The court reporter may serve as the clerk of the grand jury.

c. Oaths administered.

(1) The following oath shall be administered to the grand jury: “Do each of you solemnly

swear or affirm that you will, to the best of your ability, diligently inquire and make a true

presentment or indictment of all public offenses against the people of this state committed or

triable within this county; that you will maintain the secrecy of the proceedings now before you;

that you will indict no person through malice, hatred, bias, or ill will, nor fail to indict because of

fear, favor, affection, or hope of reward; but, rather, that you will base your decision solely upon

the evidence before you and in accordance with the laws of this state?”

(2) The following oath shall be administered to any clerk, assistant clerk, court reporter, or

court attendant appointed by the court: “Do you solemnly swear or affirm that you will faithfully

and impartially perform the duties of your office, that you will not reveal to anyone the grand

jury’s proceedings or the testimony given before it and you will not express any opinion

concerning any question before the grand jury, to the grand jury, or in the presence of the grand

jury or any member thereof?”

nt appointed by the court: “Do you solemnly swear or affirm that you will faithfully

and impartially perform the duties of your office, that you will not reveal to anyone the grand

jury’s proceedings or the testimony given before it and you will not express any opinion

concerning any question before the grand jury, to the grand jury, or in the presence of the grand

jury or any member thereof?”

(3) The foreperson or assistant foreperson shall administer the following oath to all witnesses

called to testify: “Do you solemnly swear or affirm, under penalty of perjury, that you will tell the

truth, the whole truth, and nothing but the truth and that you will keep secret all that you say,

hear, and see while in this grand jury room?”

d. Secrecy of proceedings.

(1) Except where specific provisions require otherwise, grand jury proceedings remain

confidential. Every grand juror and any clerk, assistant clerk, court reporter, or court attendant

shall keep secret the proceedings of the grand jury and any testimony given before it. If an

indictment is found, no person shall disclose that fact except when necessary for the issuance and

execution of a warrant or summons. The duty of nondisclosure shall continue until the indicted

person has been arrested.

(2) The prosecuting attorney may appear before the grand jury to give information or examine

witnesses, and the grand jury may at all reasonable times ask the advice of the prosecuting

attorney or the court.

(3) When the grand jury is deliberating on whether to find an indictment, only members of the

grand jury shall be present. The prosecuting attorney, court personnel, and any other persons are

barred from the grand jury’s deliberations.

(4) No grand juror shall be questioned for anything the grand juror said or any vote the grand

juror cast in the grand jury relating to a matter legally pending before it, except in a case of

perjury against the grand juror.

dictment, only members of the

grand jury shall be present. The prosecuting attorney, court personnel, and any other persons are

barred from the grand jury’s deliberations.

(4) No grand juror shall be questioned for anything the grand juror said or any vote the grand

juror cast in the grand jury relating to a matter legally pending before it, except in a case of

perjury against the grand juror.

(5) The court or any legislative committee duly authorized to inquire into the conduct or acts

of any state officer that might be the basis for impeachment proceedings may require the

disclosure of a witness’s grand jury testimony when necessary in the administration of justice.

e. Securing witnesses and records.

(1) The clerk of court shall issue subpoenas, including subpoenas duces tecum, for witnesses

to appear before the grand jury, as requested by the foreperson of the grand jury or the

prosecuting attorney.

(2) The grand jury is entitled to free access, at all reasonable times, to county institutions and

places of confinement and to the examination, without charge, of all public records within the

county.

f. Reporting. All grand jury proceedings shall be stenographically reported or electronically

recorded, except for the deliberations and votes of individual members on whether to find an

indictment.

g. Evidence for subject of investigation. The grand jury is not bound to receive evidence from

a person who is the subject of investigation, but may do so, and must weigh all the evidence

before it. When at least three grand jurors have reason to believe other evidence is available that

they wish to have submitted, they may order its submission. If submitted, such evidence shall be

considered by the grand jury in deciding whether an indictment should be found.

h. Refusal of witness to testify

son who is the subject of investigation, but may do so, and must weigh all the evidence

before it. When at least three grand jurors have reason to believe other evidence is available that

they wish to have submitted, they may order its submission. If submitted, such evidence shall be

considered by the grand jury in deciding whether an indictment should be found.

h. Refusal of witness to testify. When a witness under examination refuses to testify or answer

a question, the grand jury shall proceed with the witness before a district judge, and the

foreperson shall repeat the question and the refusal of the witness. If the court finds that the

witness is bound to testify or answer the question, the court shall inquire whether the witness

persists in refusing and, if the witness does, the court shall proceed with the witness as in cases of

similar refusal in open court.

i. Finding an indictment. An indictment should be found when all the evidence, taken together,

is such that, if unexplained, would warrant a conviction by the trial jury; otherwise, an indictment

shall not be found. An indictment must be based only upon testimony given by witnesses sworn

and examined before the grand jury and other evidence received by the grand jury. A grand jury

may consider testimony previously heard by the same or another grand jury. In any case, a grand

jury may take additional testimony.

j. Vote necessary. An indictment cannot be found without the concurrence of five grand jurors.

Every indictment must be endorsed a true bill and the endorsement signed by the foreperson.

k. Effect of refusal to indict. If the grand jury refuses to return an indictment, all materials shall

be returned to the clerk, with the foreperson’s signed endorsement that the charge has been

declined. If the subject of investigation was in custody, the district judge shall enter an order that

requires the subject to be released and, if applicable, bond to be exonerated

ed by the foreperson.

k. Effect of refusal to indict. If the grand jury refuses to return an indictment, all materials shall

be returned to the clerk, with the foreperson’s signed endorsement that the charge has been

declined. If the subject of investigation was in custody, the district judge shall enter an order that

requires the subject to be released and, if applicable, bond to be exonerated. Upon request of the

prosecuting attorney, and for good cause shown, the court may direct that the charge be

resubmitted to the same or a subsequent grand jury.

l. Appearance not required. A child under the age of 10 years shall not be required to

personally appear before a grand jury to testify against a relative or another person with whom

the child resides or has resided during any period of the grand jury’s investigation unless the

court enters an order finding that the interests of justice require the child’s appearance and that

the child will not be disproportionately traumatized by the appearance.