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Rule 6 – The Grand Jury

May 14, 2021 | Criminal Procedure, Tennessee

(a) Formation of the Grand Jury.

(1)Formation at a Regular Term. On the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court authorized by law to charge the grand jury and to receive its report shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
(2)Formation at a Special Term. The judge presiding at any special term of the court may impanel a grand jury in the same manner and of the same powers as at a regular term.
(3)Formation of Concurrent Grand Juries. When the expeditious administration of justice so requires, the court may likewise impanel a second grand jury to operate concurrently with the first.
(4)Oath of Grand Jurors. The following oath shall be administered to all members of the grand jury, including the foreperson:

You as members of the grand jury do solemnly swear (or affirm) that you will diligently inquire, and true presentment make, of all offenses given you in charge, or otherwise brought to your knowledge, committed or triable within this county; that you will keep secret the state’s counsel, the other jurors’ and your own; that you will present no person from hatred, malice, or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof, but that you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God.

(5)Charge to the Grand Jury. After the grand jury has been impaneled and sworn, the judge shall instruct it concerning its powers and duties and the relevant law.
(b) Vacancies on the Grand Jury.

(1)Vacancy as to Grand Juror. When any grand juror becomes unable to serve out the term or is excused on any ground, the court shall fill the vacancy from the original panel. If the court is unable to fill the vacancy from the original panel, it must do so from qualified persons selected in accordance with Rule 6(b)(2).
(2)Vacancy as Foreperson. When the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one according to Rule 6(g) until such time as the foreperson is able to serve or until expiration of his or her term.
(c) Disqualification of Grand Juror for Interest.

(1)Disqualification. No member of the grand jury shall be present during-or take part in-the consideration of a charge or the deliberation of the other grand jurors, if:

(A) the member is charged with an indictable offense;
(B) the member is a prosecutor;
(C) the offense was committed against the member’s person or property; or
(D) the member is related to the person charged or to the victim of the alleged crime by blood or marriage within the sixth degree, computed by the civil law.
(2)Filling Vacancy Created by Temporary Disqualification. When a grand juror is excluded because of interest and fewer than twelve grand jurors remain to investigate any matter, the court shall fill the vacancy according to Rule 6(b) only during such investigation.
(d) Powers of the Grand Jury. The grand jury has inquisitorial powers over-and has the authority to return a presentment-of all indictable or presentable offenses found to have been committed or to be triable within the county. At all proper hours, the grand jurors are entitled to free access to all county offices and buildings and to examine, without charge, all records and other papers of any county officers in any way connected with the grand jurors’ duties.
(e) Duties of the Grand Jury. It is the duty of the grand jury to:

(1) inquire into, consider, and act on all criminal cases submitted to it by the district attorney general;
(2) inquire into any report of a criminal offense brought to its attention by a member of the grand jury;
(3) inquire into the condition and management of prisons and other county buildings and institutions within the county;
(4) inquire into the condition of the county treasury;
(5) inquire into the correctness and sufficiency of county officers’ bonds;
(6) inquire into any state or local officers’ abuse of office; and
(7) report the results of its actions to the court.
(f) Individual Grand Juror’s Duty to Inform. If a member of the grand jury knows or has reason to believe that an indictable public offense has been committed in the county, he or she shall inform the other jurors, who shall investigate it.
(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson.

(1)Appointment of Foreperson. The judge of the court authorized by law to charge-and receive the report of-the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.
(2)Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.
(3)Duration of Appointment. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment. In the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time.
(4)Duties of Foreperson. The grand jury foreperson has the following duties:

(A) to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced;
(B) out of term, to advise the district attorney general about law violations and to furnish names of witnesses, whom the district attorney general may, if he or she deems proper, order summoned to go before the grand jury at the next term;
(C) in term, (in addition to the district attorney general who also has such authority) to order the issuance of subpoenas for grand jury witnesses; and
(D) to vote with the grand jury, which vote counts toward the twelve necessary for the return of an indictment.
(5)Compensation. The county legislative body determines the foreperson’s compensation, which must not be less than ten dollars ($10.00) per day for each day the foreperson’s grand jury is actually in session. The foreperson’s compensation may not be diminished during the term of appointment. The foreperson shall receive no other compensation for these services. The foreperson’s compensation shall be paid out of the county treasury in the same manner as jurors are paid.
(h) Duties of District Attorney General.

(1)Attendance. When required by the grand jury, the district attorney general may appear before the grand jury for the purpose of giving legal advice, but shall not be present-nor shall any other officer or person other than the grand jurors be present-when the grand jurors vote on an indictment or presentment.
(2)Preparation of Indictments. The district attorney general shall promptly prepare indictments for the grand jury in all cases when a defendant has been bound over to answer a criminal charge or is in the sheriff’s custody.
(i) Duties of Clerks.

(1) Furnishing Information to District Attorney General. On the first day of the term, the clerk shall furnish the district attorney general with the names of the prosecutor, defendant, and witnesses in each case.
(2)Issuing Subpoenas for Witnesses. On application of the grand jury, the court clerk shall issue subpoenas for any witnesses the grand jury requires to give evidence before it.
(3)Issuing Process Between Terms. Between terms of court, when the district attorney general believes it necessary to secure the ends of justice and protect the interests of the state, he or she may direct the clerks to issue process to secure the attendance of witnesses before the grand juries on the first day of the succeeding term.
(j) Witnesses Before Grand Jury.

(1)Sending for Witnesses by Grand Jury. The grand jury shall send for witnesses whenever the grand jury or any member suspects that an indictable offense has been committed.
(2)Process for Grand Jury Witnesses. Process for grand jury witnesses shall be directed to the sheriff or other lawful officer, and may also be executed and returned by any officer the court appoints to assist the grand jury.
(3)Failure of Witnesses to Attend. Witnesses subpoenaed by the grand jury who fail to attend may be proceeded against as other defaulting witnesses.
(4)Oath of Grand Jury Witnesses. Witnesses summoned before the grand jury may be sworn by the clerk or foreperson. The foreperson of the grand jury may administer the oath to grand jury witnesses in all cases where the clerks of the criminal and circuit courts may administer such oaths. The person administering the oath shall indorse the fact on the subpoena, and sign his or her name to such endorsement.
(5)Compelling Witnesses to Testify. A person who refuses to testify before the grand jury may be compelled to do so by the court:

(A) on motion of the district attorney general; and
(B) on a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify.
(6)Immunity of Certain Witnesses from Prosecution. No witness shall be indicted for any offense in relation to which the district attorney general has compelled the witness to testify before the grand jury.
(7)Limited Detention of Grand Jury Witnesses. The district attorney general shall endeavor to detain witnesses only one (1) day for appearance before the grand jury.
(8) Limited Claim of Attendance of Witnesses Living Within Ten Miles. Witnesses who live within ten (10) miles of the court may claim only one (1) day’s attendance before the grand jury, unless detained longer by court order.
(k) Secrecy of Proceedings; Exception.

(1)Grand Jury Proceedings Secret. Every member of the grand jury shall keep secret the proceedings of that body and the testimony given before it, except as provided in Rule 6(k)(2).
(2)Exception to Rule of Secrecy. The court may require a grand juror to reveal the testimony of a grand jury witness:

(A) to ascertain whether the grand jury testimony is consistent with that given by the witness before the court; or
(B) to disclose the grand jury testimony of any witness charged with perjury.
(l) Grand Jurors as Petit Jurors.

(1)Grand Jurors Serving as Petit Jurors. Except as provided in Rule 6(l)(2), the grand jurors may act as petit jurors in civil or criminal cases when not engaged in grand jury business.
(2)Grand Jurors Barred as Petit Jurors in Certain Cases. No grand juror may sit as a petit juror for any cause involving a defendant in any criminal cause heard by the grand jury of which he or she is a member.

Tenn. R. Crim. P. 6

Advisory Commission Comment.

This rule substantially reflects existing law, including the provision allowing concurrent grand juries. The voting power of the grand jury foreperson is made explicit. The judge’s charge to the grand jury “shall instruct it concerning its powers and duties and expound the law to it as the judge shall deem proper.”

Witness immunity provided in Rule 6(j)(5) and (6) requires comment. The first provision provides that: “A person refusing to testify before the grand jury may be compelled to testify by the court on motion of the district attorney general and upon a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify.” This rule is triggered by the refusal of a witness to testify before a grand jury.

The second says: “No witness shall be indicted for any offense in relation to which the district attorney general has compelled the witness to testify before the grand jury.” Note that the rule says “the district attorney general has compelled the witness to testify” rather than “has testified.”

Rule 6(j)(5) carries the subtitle “Compelling Witnesses to Testify.” It provides a tool whereby one can be required to give up an asserted Fifth Amendment right, but not until the witness is explicitly given a grant of immunity from prosecution (not just indictment, so one already indicted could be so compelled) for any offense in relation to which the witness has been ordered to testify.

Rule 6(j)(6) is subtitled “Immunity of Certain Witnesses from Prosecution” and expressly limits the immunity to indictment for offenses about which the witness was compelled to testify by the district attorney general. This rule grants immunity only to those witnesses compelled to testify by the district attorney general, or the district attorney general’s assistant or agent, by virtue of subpoena or order of the judge. The commission does not desire to depart from the scope of the immunity given under T.C.A. § 40-1623 [now repealed], and the cases decided thereunder.

The commission views the immunity rules as being limited strictly to the instances addressed by them. Rule 6(j)(5) is triggered only where there is a Fifth Amendment or other refusal of a witness to testify and an explicit court order to do so; Rule 6(j)(6) is triggered only when the district attorney general compels the witness to testify.

T.C.A. §§ 40-12-104 – 40-12-107 provide a procedure designed to give citizens free access to the local grand jury. Under this statute, persons applying to testify before the grand jury are not immune from prosecution based upon or related to their testimony, except under express grant of immunity by the grand jury. The statute expressly states that it is supplemental to existing law.