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Rule 6 – The grand jury

May 14, 2021 | Criminal Procedure, West Virginia

(a) Summoning Grand Juries. – The court may order that a grand jury be summoned at each term of the circuit court or at any specified time for either a regular, special or adjourned term of court. The grand jury shall consist of 16 members, but any fifteen or more members attending shall constitute a quorum. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement as prescribed by Chapter 52, Article 2, Section 3, of the West Virginia Code of 1931, as amended.
(b) Objections to grand jury and grand jurors. –

(1)Challenges. – The prosecuting attorney or a defendant who has been held to answer in the circuit 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. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the circuit 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 qualifications of an individual juror, if not previously determined upon challenge. 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 12 or more 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 grand jury shall keep a record of the name of each witness examined by them, the substance of the evidence given by such witness, and 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 following persons may be present while the grand jury is in session: attorneys for the state, the witness under examination, interpreters when needed, and, for the purpose of taking the evidence, a stenographer or operator of a recording device. During deliberations and voting no person other than the jurors and any interpreter needed to assist a hearing-impaired or speech-impaired juror may be present.
(e) Reporting and Disclosure of Proceedings. –

(1)Reporting of Proceedings. – All proceedings, except when the grand jury is deliberating or voting, shall be reported by an official court reporter or a certified court reporter approved by the Supreme Court. An unintentional failure to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The reporter’s notes or any transcript prepared therefrom shall be filed with the clerk of the circuit court and shall not be made public except on order of the court.
(2)General rule of secrecy. – A grand juror, an interpretor, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the state, 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) An attorney for the state for use in the performance of such attorney’s duty; and
(ii) Such official personnel as are deemed necessary by an attorney for the state to assist an attorney for the state in the performance of such attorney’s duty to enforce 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 for the state in the performance of such attorney’s duty to enforce criminal law. An attorney for the state shall promptly provide the circuit court, 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 a court preliminarily to or in connection with a judicial proceeding;
(ii) when permitted by a 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 an attorney for the state to another grand jury; or
(iv) when permitted by a court at the request of an attorney for the state, upon a showing that such matters may disclose a violation of federal criminal law or of the law of another state, to an appropriate official of the federal government or of such other state for the purposes 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 for the state, (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 be heard.
(E) If the judicial proceeding giving rise to the petition is in a circuit court in another county, the court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard.
(4)Sealed indictments. – The court 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 clerk 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. – Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.
(f) Finding and return of indictment. – An indictment may be found only upon the concurrence of 12 or more jurors. The indictment shall be returned by the grand jury to a circuit judge in open court. If a complaint is pending against the defendant and 12 jurors do not concur in finding an indictment, the foreperson shall so report to the circuit judge in writing forthwith.
(g) Discharge and excuse. – A grand jury shall serve until discharged by the court, but no grand jury may serve more than one year unless the court extends the service of the grand jury for a period of six months or less upon a determination that such extension is in the public interest. The tenure and powers of a grand jury are not affected by the beginning and expiration of a term of 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.

W.Va. R. Crim. P. 6

Effective October 1, 1981; amended effective February 1, 1985;September 1, 1995,February 5, 2009.