Alaska

Criminal Procedure

Criminal Procedure

Rule 6 – The Grand Jury

(a)By Whom Convened. The presiding superior court judge of the judicial district encompassing the grand jury location specified in section (b) shall convene the grand jury.
(b)Where Grand Juries Shall Be Convened. The grand jury shall be convened at the superior court location shown in the following table, based on the superior court venue district in which the matter under investigation occurred. The superior court venue districts are defined in the Criminal Rule 18 venue map.

Superior Court Venue District in which the matter under investigation occurred

Location at which the grand jury will be convened

Anchorage

Anchorage

Bethel

Bethel

Cordova

Anchorage or Palmer

Craig

Juneau, Ketchikan, or Sitka

Delta Junction

Fairbanks

Dillingham

Dillingham or Anchorage

Fairbanks

Fairbanks

Glennallen

Anchorage or Palmer

Homer

Kenai

Juneau

Juneau, Sitka, or Ketchikan

Kenai

Kenai

Ketchikan

Ketchikan, Sitka, or Juneau

Kodiak

Kodiak

Kotzebue

Kotzebue

Naknek

Anchorage

Nenana

Fairbanks

Nome

Nome

Palmer

Palmer

Petersburg

Juneau, Ketchikan, or Sitka

Seward

Kenai

Sitka

Sitka, Juneau, or Ketchikan

Tok

Fairbanks

Unalaska

Anchorage

Utqiagvik (formerly Barrow)

Utqiagvik (formerly Barrow)

Valdez

Anchorage or Palmer

Wrangell

Juneau, Ketchikan, or Sitka

The presiding judge of a judicial district shall be empowered to call a special jury to be convened at a site other than the site designated in this subsection, if the presiding judge determines that the designation of a special site is necessary in the interest of justice.

(c)Selection of Prospective Grand Jurors. Prospective grand jurors shall have the qualifications and shall be drawn and selected as set forth by law, with the additional provisions:

(1) prospective grand jurors shall be selected from the population within a fifty-mile radius of the place where the grand jury is convened, and
(2) the presiding judge of the superior court may with the approval of the administrative director select prospective grand jurors at large from the judicial district in which the matter under investigation occurred.
(d)Summoning Grand Jurors. At least once each year the presiding judge of the superior court in each judicial district shall order one or more grand juries to be convened at such times as the public interest requires. The grand jury shall consist of not less than 12 nor more than 18 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement. Any qualified member of the grand jury panel not designated to serve as a member of the grand jury may be placed on the petit jury panel. An otherwise qualified person called for petit jury service may be placed on the grand jury panel. A grand jury shall serve until discharged by the presiding judge but no grand jury may serve more than 4 months, unless this period is extended for good cause.
(e)Swearing and Instructing Jurors.

(1) The following oath shall be administered by the clerk of the superior court to the persons selected for grand jury duty: “You and each of you as members of this grand jury for the State of Alaska, do solemnly swear or affirm that you will diligently inquire and true presentment make of all such matters as shall be given to you for consideration, or shall otherwise come to your knowledge in connection with your present service; that you will preserve the secrecy required by law as to all proceedings had before you; that you will present no one through envy, hatred or malice, or leave any one unpresented through fear, affection, gain, reward, or hope thereof; but that you will present all things truly and impartially as they shall come to your knowledge according to the best of your understanding.”
(2) When the grand jury is sworn, the court shall charge the jury with written instructions, which the court deems proper, concerning the powers and duties of the grand jury.
(f)Alternate Jurors. The presiding judge may direct that alternate jurors 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 paragraph (s) 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.
(g)Objections to Grand Jury and to Grand Jurors. A motion to dismiss the indictment or to expunge a report of the grand jury may be based upon objections to the array or the lack of legal qualification of an individual juror. An indictment shall not be dismissed nor a report expunged upon the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to paragraph (h) of this rule that a majority of the total number of grand jurors comprising the grand jury when the grand jury is sworn and charged with instructions, after deducting the number not legally qualified, concurred in finding the indictment or making the report.
(h)Foreperson and Deputy Foreperson. The presiding judge 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 and reports. 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 the issuance of every report and shall file the record with the clerk of the court, but the record shall not be made public except on order of the presiding judge. During the absence of the foreperson, the deputy foreperson shall act as foreperson.
(i)Preparing Indictments and Presentments. The prosecuting attorney shall prepare all indictments and presentments for the grand jury, and shall attend their sittings to advise them of their duties and to examine witnesses in their presence.
(j)Record of Proceedings. All proceedings before the grand jury, including the testimony of witnesses and any statements made by the prosecuting attorney or by any of the jurors, shall be electronically recorded.
(k)Who May Be Present. The prosecuting attorney, the witness under examination, a court clerk for the purpose of recording the proceedings, and, when needed, an interpreter, a person transcribing for the deaf, and any law enforcement officer who has custody of the witness being examined may be present while the grand jury is in session. No persons other than the jurors and any interpreter or transcriber necessary to assist a juror who is hearing or speech impaired shall be present while the grand jury is deliberating or voting.
(l)Secrecy of Proceedings and Disclosure.

(1) The selection, swearing, and charging of grand jurors and all matters occurring before the grand jury are secret, except as otherwise provided by this rule. Disclosure of matters, other than the grand jury’s deliberations and the vote of any juror, may be made to the prosecuting attorney for use in the performance of the prosecuting attorneys’ duties. Otherwise a judge, juror, attorney, interpreter, person transcribing for the deaf, law enforcement officer, court clerk, or a typist who transcribes recorded testimony may disclose matters only when so directed by the court preliminary to or in connection with a judicial or administrative proceeding.
(2) The returns of indictments to the superior court are public proceedings, unless the court directs that the proceedings be closed to the public and the indictment kept secret until the defendant is in custody or has given bail. 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.
(3) No obligation of secrecy may be imposed upon any person except in accordance with this rule.
(m)Availability of Grand Jury Record to Defendant. Upon request, a defendant shall be entitled to listen to the electronic recording of the grand jury proceedings and inspect all exhibits presented to the grand jury. Upon further request the defendant may obtain a transcript of such proceedings and copies of such exhibits. The trial of the case shall not be delayed because of the failure of a defendant to request the transcript. The availability of a grand jury report is governed by Criminal Rule 6.1.(n) Finding and Return of Indictment.

(1) An indictment may be found only upon the concurrence of a majority of the total number of jurors comprising the grand jury when the grand jury is sworn and charged with instructions, after deducting the number not legally qualified.
(2) If an indictment is not found, the indictment shall be endorsed “not a true bill” and signed by the foreperson. If an indictment is found, the indictment shall be endorsed “a true bill” and signed by the foreperson.
(3)

(i) If an indictment is endorsed “a true bill,” the indictment shall be presented in open court and filed with the clerk where it shall be open to public inspection.
(ii) If an indictment is endorsed “not a true bill” and a complaint or information was previously filed in a district court, the indictment shall be presented in open court and filed with the clerk where it shall be open to public inspection.
(iii) If an indictment is endorsed “not a true bill” and no complaint or information was previously filed in district court, the indictment shall be filed with the clerk and held under seal.
(iv) The foreperson or deputy foreperson may present an indictment in open court without the presence of other grand jury members.
(4) If no indictment is found, the court shall hold the minutes, log notes, and record of the grand jury proceeding under seal. If an indictment is found, the log notes, transcript, and record of the grand jury proceeding will be confidential, as defined in Administrative Rule 37.5(c), except that the grand jury documents may be used by a party or counsel and by their staff, investigators, experts, and others as necessary for the preparation of the case. This paragraph does not preclude a party from attaching relevant portions of these documents to a pleading or motion, so long as victim and witness information is protected as provided in AS 12.61.100.150.
(5) The return of exhibits used during the grand jury proceedings is governed by Criminal Rule 26.1(h).
(o)Presentment.

(1) Whenever there is doubt from the evidence presented

(i) whether the facts constitute a crime, or
(ii) whether a defendant is subject to prosecution by reason of either a lapse of time or a former acquittal or conviction, then the grand jury by a concurrence of at least five members may make a presentment of the facts of the case to the court with a request for instructions on the law.
(2) The presentment shall be made by the foreperson in the presence of the grand jury.
(3) The presentment shall not mention the names of individuals. The presentment shall not be filed with the court, nor shall it be kept by the court beyond the time that the grand jury is discharged.
(4) When the presentment is made the court shall give such instructions on the law as it considers necessary.
(p)Defense Witnesses. Although the grand jury has no duty to hear evidence on the behalf of the defendant, it may do so.
(q)Sufficiency of Evidence. When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses. An indictment shall not be found nor a presentment made upon the statement of a grand juror unless such grand juror is sworn and examined as a witness. The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.
(r)Admissibility of Evidence.

(1) Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Except as stated in subparagraphs (2), (3), and (6), hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record.
(2) In a prosecution for an offense under AS 11.41.410 – 11.41.458, hearsay evidence of a statement related to the offense, not otherwise admissible, made by a child who is the victim of the offense may be admitted into evidence before the grand jury if

(i) the circumstances of the statement indicate its reliability;
(ii) the child is under 10 years of age when the hearsay evidence is sought to be admitted;
(iii) additional evidence is introduced to corroborate the statement; and
(iv) the child testifies at the grand jury proceeding or the child will be available to testify at trial.
(3) Hearsay evidence related to the offense, not otherwise admissible, may be admitted into evidence before the grand jury if

(i) the individual presenting the hearsay evidence is a peace officer involved in the investigation; and
(ii) the hearsay evidence consists of the statement and observations made by another peace officer in the course of an investigation; and
(iii) additional evidence is introduced to corroborate the statement.
(4) If the testimony presented by a peace officer under paragraph (3) of this section is inaccurate because of intentional, grossly negligent, or negligent misstatements or omissions, then the court shall dismiss an indictment resulting from the testimony if the defendant shows that the inaccuracy prejudices substantial rights of the defendant.
(5) In this section “statement” means an oral or written assertion or nonverbal conduct if the nonverbal conduct is intended as an assertion.
(6) When a prior conviction is an element of an offense hearsay evidence received through the Alaska Public Safety Information Network or from other government agencies of prior convictions may be presented to the grand jury.
(s)Excusing Grand Jurors. A seated juror may be excused for a particular case, permanently excused, or temporarily excused under the following circumstances:

(1) The prosecutor shall excuse a juror for a particular case when the juror informs the prosecutor that the juror cannot be fair or impartial in deciding that case. The prosecutor may ask the presiding judge to impanel an alternate.
(2) If the prosecutor is made aware of a grand juror’s potential prejudice or bias that could affect the grand jury’s impartial deliberations, or if the prosecutor seeks to challenge a juror for cause, the prosecutor shall present the information as to prejudice or bias or the challenge to the presiding judge. The judge shall provide the juror with notice of the prosecutor’s action and shall question the juror concerning the potential bias or challenge. After hearing from the juror, the judge may request additional information from the prosecutor, other jurors, or other sources. If potential bias or cause is shown, the judge may excuse the juror permanently or for a particular case. The judge may impanel an alternate juror in place of the juror excused. If no potential bias or cause is shown, the judge shall allow the juror to remain and may take other appropriate action.
(3) The presiding judge may excuse a juror temporarily because of illness or a personal or business matter that requires the juror’s attention. The presiding judge may delegate this authority to another judicial officer.
(4) An alternate juror must be present during the presentation of all evidence related to that case in order to vote on the proposed bill.
(t)Delegation of Duties. Whenever a superior court is sitting other than where the presiding judge is sitting, or the presiding judge is unavailable, the presiding judge may delegate duties under this rule to another judicial officer. However, the presiding judge may delegate duties under Criminal Rule 6.1 only to another superior court judge.
(u)Telephonic Testimony.

(1) A witness may participate telephonically in grand jury proceedings if the witness:

(A) would be required to travel more than 50 miles to the situs of the grand jury; or
(B) lives in a place from which people customarily travel by air to the situs of the grand jury.
(2) A witness who is not entitled to participate telephonically under subparagraph (1) may participate telephonically with approval of the presiding judge of the judicial district, or the presiding judge’s designee. A motion to allow telephonic testimony under this subparagraph may be ex parte and shall be accompanied by an affidavit of the prosecuting attorney that states the reason telephonic testimony is requested.
(3) If a witness participates telephonically in grand jury proceedings, after the witness is sworn, the prosecuting attorney shall require the witness to:

(A) state the location from which the witness is testifying; and
(B) verify

(i) that the witness’ conversation cannot be overheard;
(ii) that no extension for the telephone from which the witness is testifying is in use; and
(iii) that the witness will notify the grand jury immediately if any person can overhear the witness’ testimony or if the witness becomes aware that an extension for the telephone enters use during the testimony.

Alaska R. Crim. P. 6

Adopted by SCO 4 October 4, 1959; amended by SCO 30 effective February 1, 1961; by SCO 49 effective January 1, 1963; by SCO 136 datedAugust 27, 1971; by SCO 136A datedSeptember 13, 1971; by Amendment No. 1 to SCO 136 datedOctober 17, 1972; by SCO 146 effective October 31, 1971; by Amendment No. 1 to SCO 146 effective October 31, 1971; by SCO 157 effective February 15, 1973; by SCO 216 effective October 1, 1975; by SCO 261 effective December 30, 1976; by SCO 539 effective October 1, 1982; by SCO 706 effective May 21, 1986; by SCO 711 effective September 15, 1986; by SCO 881 effective July 15, 1988; by SCO 937 effective January 15, 1989; by SCO 945 effective January 15, 1989; by SCO 956 effective July 15, 1989; by SCO 967 effective July 15, 1989; by SCO 969 effective July 15, 1989; by SCO 973 effective July 15, 1989; by SCO 991 effective January 15, 1990; by SCO 997 effective January 15, 1990; by SCO 1012 effective January 15, 1990; by SCO 1039 effective January 15, 1991; by SCO 1046 effective January 15, 1991; by SCO 1061 effective July 15, 1991; by SCO 1115 effective November 12, 1992; by SCO 1171 effective July 15, 1995; by SCO 1181 effective July 15, 1995; by SCO 1204 effective July 15, 1995; by SCO 1269 effective July 15, 1997; by SCO 1293 effective January 15, 1998; by SCO 1338 effective June 11, 1998; by SCO 1381 effective April 15, 2000; by SCO 1439 effective October 15, 2001; by SCO 1482 effective October 15, 2002; by SCO 1490 effective October 15, 2002; by SCO 1618 effective October 15, 2006; by SCO 1646 (Amended) effective October 15, 2007; and by SCO 1745 effective April 15, 2011; and by SCO 1760 effective October 14, 2011; amended by SCO 1872 effective April 27, 2016; amended by SCO 1917 effective January 1, 2018; amended by SCO 1949 effective July 9, 2019.

Note to SCO 1269: Criminal Rule 6(r) was amended by 18 & 19 ch. 143 SLA 1996 to allow certain hearsay evidence to be presented to the grand jury in a prosecution for felony DWI or felony refusal to submit to a chemical test. Section 21 of this order is adopted for the sole reason that the legislature has mandated the amendments.

Subparagraphs (r)(2) and (3) of Criminal Rule 6 were added by ch. 41, 1 2, SLA 1985, adopting AS 12.40.110.

Note to SCO 1204: Criminal Rules 6(r)(3) & (4) were added by ch. 114 2 SLA 1994. Section 4 of this order is adopted for the sole reason that the legislature has mandated the amendments.

Note to SCO 1293: Criminal Rule 6(u) was amended by 20 & 25 ch. 63 SLA 1997 to eliminate the requirement that the prosecution must obtain permission from the court before a victim can testify by telephone. Section 1 of this order is adopted for the sole reason that the legislature has mandated the amendment.

Note to SCO 1338: Criminal Rule 6(r)(2) was amended by 21 ch. 81 SLA 1998 to allow hearsay evidence of a statement made by a child to be admitted before the grand jury in a prosecution for first degree indecent exposure as well as the other sex offenses defined in AS 11.41. Section 1 of this order is adopted for the sole reason that the legislature has mandated the amendment.

Chapter 10, SLA 2019 (HB 49 ) enacted a number of changes relating to criminal procedure. Section 135 of the Act amended paragraph (r)(6) to allow the admissibility of an Alaska Public Safety Information Network or other government agency report of prior convictions if the prior conviction is an element of the offense. This rule change is adopted for the sole reason that the legislature has mandated the amendment.

AS 12.40.030; AS 12.40.040; AS 12.40.050; AS 12.40.060