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Rule 6 – Grand Jury

May 11, 2021 | Criminal Procedure, Hawaii

(a) Summoning grand juries. Each circuit 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 16 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement.
(b)Objections to grand jury and grand jurors.

(1) Challenges. The prosecutor 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 heard 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. 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 section (c) of this rule that, after deducting the number not legally qualified, not less than three-fourths but in no event less than 8 of the jurors present 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 and may remove either of them for cause. The foreperson shall have the 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. The prosecutor, the independent grand jury counsel, the witness under examination, and interpreters when needed, may be present while the grand jury is in session. An official reporter or operator of a recording device shall be present and shall fully record all evidence presented to and all statements made before the grand jury. No person other than the jurors may be present while the grand jury is deliberating or voting.
(e)Secrecy of proceedings and disclosure.

(1) Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the prosecutor for use in the performance of the prosecutor’s duties. Otherwise, a juror, prosecutor, interpreter, reporter or operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily 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, subject, however, to the provisions of subsection (e)(2) of this rule. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.
(2) After indictment is returned against a defendant, the defendant shall, on motion to the court and subject to payment therefor, have the right to a transcript of that portion of the grand jury proceedings which relates to the offense charged in the indictment; subject, however, to regulation by the court under Rule 16(e)(4).
(f)Finding and return of indictment. Eight members shall constitute a quorum. An indictment may be found only upon the concurrence of three-fourths, but in no event fewer than 8 of the jurors present. The indictment shall be returned by the grand jury through its foreperson to a judge in open court. If the defendant is in custody or has given bail and the required number of jurors do not concur in finding an indictment, the grand jury through its foreperson shall so report to the court in writing forthwith. Evidence supporting a superseding indictment shall be considered by the same grand jury panel that returned the original indictment, and shall be found only upon the concurrence of three-fourths, but in no event fewer than 8 of the jurors who considered the original indictment. A grand jury panel considering a superseding indictment may consider any evidence presented to support its original indictment. In regard to both an original indictment and a superseding indictment, evidence of a clearly exculpatory nature known to the prosecution shall be disclosed to the grand jury. In the event that the term of the grand jury that returned the original indictment has expired, a new indictment may be presented to another grand jury.
(g)Discharge and excuse. The grand jury shall serve for a term as provided by law. 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.
(h)Oath or affirmation. Substantially the following oath shall be administered to the grand jurors:

“You, and each of you, do solemnly swear or affirm that you will diligently inquire and make true determinations of all matters and things presented to you or which shall otherwise come to your knowledge; that you will indict no one through envy, hatred, or malice, nor leave anyone unindicted through fear, favor, affection, gain, reward or hope therefor, but will determine all things truly, as they come to your knowledge, according to the best of your understanding; and that you will keep secret matters occurring before you, except as you may be permitted to disclose the same by law or order of the court.”

Haw. R. Pen. P. 6

Amended January 6, 1982, effective January 6, 1982; amended effective September 2, 1988; further amended December 7, 2006, effective January 1, 2007; further amended February 10, 2011, effective July 1, 2011.