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Rule 6 – The grand jury

May 15, 2021 | Criminal Procedure, Delaware, Superior Court

(a) Summoning grand juries. – The court shall order one or more grand juries to be summoned at such time as the public interest requires.
(b) Objections to grand jury and to grand jurors. –

(1) Challenges. – The attorney general or a defendant who has been held to answer in Superior 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.
(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 10 Del. C. § 4512 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 the requisite number of 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 prothonotary, 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 attorney general, 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. – Proceedings, except when the grand jury is deliberating or voting, may be recorded stenographically or by an electronic recording device only with the approval of the court.
(2) General rule of secrecy. – A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, the attorney general, 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) The attorney general for use in the performance of such attorney’s duty; and
(ii) Such government personnel (including personnel of a state or of the federal government) as are deemed necessary by the attorney general to assist in the performance of such attorney’s duty to enforce the 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 general in the performance of such attorney’s duty to enforce the criminal law. The attorney general shall promptly provide Superior Court, in the county 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 the court preliminarily to or in connection with a judicial proceeding;
(ii) 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;
(iii) When the disclosure is made by the attorney general to another grand jury; or
(iv) When permitted by the court at the request of the attorney general, upon a showing that such matters may disclose a violation of state or federal criminal law, to an appropriate official of a state or of the federal government 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 county where the grand jury convened. Unless the hearing is ex parte, which it may be when the petitioner is the state, the petitioner shall serve written notice of the petition upon (i) the attorney general, (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 to be heard.
(4) Sealed indictments. The 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 prothonotary 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. – All records relating to grand jury proceedings shall be kept under seal, unless the court orders disclosure.
(f) Finding and return of indictment. – An indictment may be found only upon the concurrence of the requisite number of jurors in accordance with 10 Del. C. § 4505. The indictment shall be returned by the grand jury to a judge in open court. If a complaint or information is pending against the defendant and the requisite number of jurors do not concur in finding an indictment, the foreperson shall so report to a judge in writing forthwith by marking the proposed indictment “ignored.”
(g) Discharge and excuse. – Grand jurors shall serve until discharged by the court. 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.

De. R. Crim. P. Super. Ct. 6