In North Carolina, a person must be indicted by a grand jury or must waive the right to indictment before he or she may prosecuted in superior court for a felony offense. N.C. Const. Art. 1, § 22. The right to a grand jury determination of whether a person must stand trial for a felony has been characterized as “one of the greatest safeguards of the freedom of the citizen.” State v. Barker, 107 N.C. 913, 919 (1890)
Grand juries consist of 18 members who typically serve 12-month terms, with nine grand jurors rotating off the grand jury every six months. At least 12 grand jurors must be present for the grand jury to lawfully conduct its business.
In contrast to the time-consuming voir dire associated with the selection of petit jurors for individual criminal trials, selection of grand jurors is a relatively brief process. The superior court judge presiding over the first session of criminal superior court after each January 1 and July 1 reviews questionnaires completed by grand jurors to determine whether those jurors randomly selected from the pool of summoned jurors meet the qualifications set forth in G.S. 9-3. G.S. 15A-622(b). The judge then considers hardship excuses related to the person’s inability to carry out the service of a grand juror. The judge does not inquire into potential grand jurors’ experiences, predilections, or knowledge of those involved in the case – issues frequently explored during the selection of trial jurors. Because the matters to be presented to the grand jury are not pre-determined, it is not possible to suss out a juror’s possible connection to or knowledge of those matters in advance of grand juror’s selection.
After impaneling the grand jury, the presiding judge appoints one of the grand jurors as its foreperson. G.S. 15A-622(e). In selecting that person, the judge may consider qualities reasonably related to that leadership role such as a grand juror’s education, work experience, ability to follow instructions, and prior grand jury experience. See State v. Cofield, 324 N.C. 452, 459 (1989). The foreperson presides over grand jury hearings and may excuse individual grand jurors from attending particular sessions. See G.S. 15A-622(d); 15A-623(b).
Once the grand jury is impaneled and the foreperson selected, its work is done in secret. See G.S. 15A-623(e). Only the grand jurors may be present in the grand jury room during deliberations and voting. G.S. 15A-623(d).
So what happens when a grand juror turns out to have a connection with a witness or potential defendant or independent knowledge related to the crime alleged in a bill of indictment?
Grand juror recusal. First, a grand juror who has a relationship with a witness or target of an investigation may alert the foreperson and seek to recuse from the proceedings. That very circumstance led to the state supreme court’s seminal ruling in State v. Barker, 107 N.C. 913 (1890). At the time of the indictment in Barker, the General Assembly had fixed the size of the grand jury at 12 members and had authorized indictment upon concurrence of at least nine grand jurors. One of the grand jurors on the grand jury to which the indictment against Barker was presented was the brother-in-law of the witness for the prosecution. Upon that grand juror’s request, the foreperson excluded him from the deliberations. As a result, the indictment was returned upon the concurrence of only 11 grand jurors. Barker appealed from his conviction, and the state supreme court determined that the statute permitting the return of an indictment based on the concurrence of only nine grand jurors violated the constitutional grand jury requirement. The Court held that the constitution “contemplated a grand jury as it substantially existed at common law,” and that one of the most essential features of that body was that at least 12 of its members concur in its finding of a true bill of indictment.
But what if such a grand juror does not recuse? Does that vitiate the indictment? Generally no. In State v. Oxendine, the defendant, James Brantley Oxendine, was charged with the first-degree murder of Anthony Oxendine and the related felony assault of another victim. 303 N.C. 235 (1981), superseded by statute on other grounds as stated in State v. Covington, 315 N.C. 352 (1986). The defendant moved to quash the indictments against him and for a mistrial on the basis that one of the members of the grand jury that returned the indictments against him was the brother of Anthony Oxendine and also testified for the prosecution at the defendant’s trial. The trial court denied the defendant’s motions; he subsequently was convicted and sentenced to imprisonment for life. On appeal, the Supreme Court upheld the trial court’s ruling, stating that “[a]s a general rule, the fact that a member of the grand jury who actively participated in returning a bill of indictment against defendant was related to the victim of the crime charged does not disqualify that person from serving as a grand juror.” Id. at 245. In addition, the Court held that a grand juror’s subsequent testimony at trial on behalf of the prosecution did not undermine the validity of an indictment that the grand juror participated in returning. Id.
What disqualifies a grand juror? The Oxendine Court explained that “[o]rdinarily” only a “direct pecuniary interest” disqualifies a grand juror or calls the validity of an indictment in which the grand juror participates into question. Id. Thus, it concluded that the relationship between the grand juror and the murder victim in that case did not “compel a finding that the indictment should have been quashed.” As there was “no evidence that the grand jury acted with malice, hatred, or fraud in returning the indictments against [the] defendant,” the Court held that the trial court acted properly in denying defendant’s motions to quash the indictments and for a mistrial. Id. at 245.
East coast, west coast. The California Court of Appeal in Packer v. Superior Court cited Oxendine in support of its conclusion that a grand juror’s clerical work on a law enforcement task force investigating the defendant’s crimes did not require that the indictment be set aside. 201 Cal. App. 4th 152, 158 (2011). The Parker Court explained that California followed the general rule that in the absence of a statutory provision to the contrary, an indictment is not subject to dismissal on the ground that individual grand jurors harbored bias or prejudice against the defendant. The Court explained that the rationale for the rule “lies primarily in the fact that [a] grand jury operates as part of the charging process of criminal procedure, and its function is viewed as investigatory, not adjudicatory, in nature.” Id. (internal citations omitted). The function of the grand jury does not, Packer said, require that grand jurors be impartial and unbiased. The Court noted that in California, like North Carolina, individual members of the grand jury may initiate an investigation leading to indictment based on the personal knowledge of its own members. When that occurs, the grand juror who instigated the proceedings can hardly be deemed impartial.
The Parker Court declined to take up the defendant’s argument that due process demands that grand jurors be free of the sort of bias he alleged. The Court stated there was “hardly a national consensus” on that issue and that “compelling and persuasive arguments had been made in support of both positions.” Id. at 168 (comparing Hopkins v. State, 329 A.2d 738 (Md. App. 1974) (rejecting claim that an unbiased grand jury is compelled by the due process clause of the United States Constitution) with State v. Murphy, 538 A.2d 1235 (N.J. 1988) (finding that the constitutional guarantee of an indictment by grand jury “now means more than indictment by a body that may have prejudged the case”)). Ultimately, the Court concluded that it did not need to decide whether Packer had a due process right to an unbiased grand jury because he failed to demonstrate that the juror he complained of was actually biased.
How are grand jurors instructed? North Carolina Pattern Jury Instruction Crim 100.10 sets forth suggested instructions for grand jurors. Those instructions address grand juror impartiality in this way:
The quality of justice in your community depends upon the diligence, intelligence and honesty with which you perform the important duties resting upon you and you alone. You must be fair and just in your deliberations to the best of your understanding. On the one hand you should disregard any charges brought for the purpose of persecution. On the other hand if you fail to indict those probably guilty of serious violations of the law, the courts, the law, and your community will be negatively impacted. Your oath requires that you not indict any person through malice, hatred or ill will; nor will you fail to indict any person through fear, favor, reward or hope of reward. You must be impartial, free from personal, social, racial, religious or political bias or feeling. No person is above the law, and no person should be too important to be called upon to answer and brought to trial for his or her crimes; neither should any person be too humble to merit your protection from oppression and malicious prosecution.
In turn, grand jurors take an oath to “present no one for envy, hatred or malice” and promise not to “leave anyone unpresented for fear, favor or affection, reward or hope of reward.” G.S. 11-11.
You can read more about the ins and outs of grand juror selection and grand jury work in the North Carolina Superior Court Judges’ Benchbook.