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Massachusetts Criminal Procedure Rule 5: The Grand Jury

(Applicable to cases initiated on or after September 7, 2004)

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(a) Summoning Grand Juries. As prescribed by law, the appropriate number of jurors shall be summoned in the manner and at the time required, from among whom the court shall select not more than twenty-three grand jurors to serve in said court as long as and at those specific times required by law, or as required by the court. The regular grand jury shall be called upon and directed to sit by the Chief Justice of the Superior Court Department whenever within his or her discretion the conduct of regular criminal business and timely prosecution within a particular county so dictate. Notwithstanding the foregoing, special grand juries shall be summoned in the manner prescribed by the General Laws.

(b) Foreperson, Foreperson Pro Tem, Clerk, Clerk Pro Tem. After the grand jurors have been impanelled they shall retire and elect one of their number as foreperson. The foreperson and the prosecuting attorney shall have the power to administer oaths and affirmations to witnesses who appear to testify before the grand jury, and the foreperson shall, under his or her hand, return to the court a list of all witnesses sworn before the grand jury during the sitting. If the foreperson is unable to serve for any part of the period the grand jurors are required to serve, a foreperson pro tem shall be elected in the same manner as provided herein for election of the foreperson. The foreperson pro tem shall serve until the foreperson returns or for the remainder of the term if the foreperson is unable to return. The grand jury may also appoint one of their number as clerk to be charged with keeping a record of their proceedings, and, if the grand jury so directs, to deliver such record to the attorney general or district attorney. If the clerk is unable to serve for any part of the period the grand jurors are required to serve, a clerk pro tem may be appointed.

(c) Who May Be Present. Attorneys for the Commonwealth who are necessary or convenient to the presentation of the evidence, the witness under examination, the attorney for the witness, and such other persons who are necessary or convenient to the presentation of the evidence may be present while the grand jury is in session. The attorney for the witness shall make no objections or arguments or otherwise address the grand jury or the prosecuting attorney. No witness may refuse to appear because of unavailability of counsel for that witness.

(d) Secrecy of Proceedings and Disclosures. The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court. No obligation of secrecy may be imposed upon any person except in accordance with law.

(e) Finding and Return of Indictment. An indictment may be found only upon the concurrence of twelve or more jurors. The indictment shall be returned by the grand jury to a judge in open court.

(f) No Bill; Discharge of Defendant. The grand jury shall during its session make a daily return to the court of all cases as to which it has determined not to present an indictment against an accused. Each such complaint shall be endorsed "no bill" and shall be filed with the court. If upon the filing of a no bill the accused is held on process, he or she shall be discharged unless held on other process.

(g) Deliberation. The prosecuting attorney shall not be present during deliberation and voting except at the request of the grand jury.

(h) Discharge. A grand jury shall serve until the first sitting of the next authorized grand jury unless it is discharged sooner by the court or unless its service is extended to complete an investigation then in progress.

As amended March 8, 2004, effective September 7, 2004.

Reporter's Notes

(2004) Rule 5 is modeled in large part upon Fed. R. Crim. P. 6 and substantially conforms to the General Laws.

Subdivision (a). This subdivision is drawn from Fed. R. Crim. P. 7(a) and G.L. c. 277, §§ 1, 2, 2A-2H. General Laws c. 277, § 3 provides that grand jurors are to drawn, G.L. c. 234, §§ 17-24C, summoned, G.L. c. 234, §§ 10-14, 16, 24, and returned in the same manner as traverse jurors from a list compiled in compliance with G.L. c. 234, §§ 4-9. By a 2004 amendment, this subdivision was amended to eliminate a reference to a specific number of veniremen who must be summonsed, since the number differs from county to county. The statutes require that twenty-three jurors be selected to make up the grand jury, G.L. c. 277, §§ 1, 2, 2A-2H, and authorize the issuance of writs of venire facias to fill any deficiency in that number. G.L. c. 277, § 4. A number less than twenty-three is competent to return an indictment, however, so long as at least thirteen are present and twelve concur in the return. See Commonwealth v. Wood, 56 Mass. (2 Cush) 149 (1848). Accord, Crimm v. Commonwealth, 119 Mass. 326 (1876).

Subdivision (a) generally governs the time of issuance of writs of venire facias and provides that such writs for special grand juries shall be issued pursuant to G.L. c. 277, § 2A. In addition to the statutory regular and special grand jury sitting, the Administrative Justice of the Superior Court is empowered to call a "regular" grand jury session whenever the amount of criminal business and the need for timely prosecution within a particular county requires. This provision is intended to provide the Superior Court with much needed flexibility in responding to the fluctuating demand for grand jury action among counties.

Subdivision (b). Although similar to Fed. R. Crim. P. 6(c), this subdivision is wholly adopted from former G.L. c. 277, §§ 7-10. The federal rule provides for the simultaneous court appointment of a foreperson and deputy foreperson; under Rule 5 the foreperson is elected by the other jurors and a replacement, the foreperson pro tem, is chosen only if the first cannot serve Provision for a clerk pro tem is new with this rule.

Those parts of subdivision (b) dealing with the administration of oaths and listing of witnesses and with the appointment and duties of the clerk are restatements, respectively, of former G.L. c. 277, §§ 9 and 10.

Subdivision (c). This subdivision was patterned on Fed. R. Crim. P. 6(d), although it omitted the provision of the federal rule that excluded all persons other than jurors from deliberations or voting.

Grand jury proceedings are ordinarily secret and the presence of an unauthorized person will void an indictment. See Commonwealth v. Pezzano, 387 Mass. 69, 72-73 (1982). The importance of keeping the grand jury process from becoming public rests on several policy considerations: preventing individuals from facing the notoriety associated with a grand jury investigation unless probable cause is found against them and an indictment is returned; shielding the grand jury from any outside influences having the potential to distort their investigatory or accusatory functions; protecting witnesses from improper influence; encouraging the full disclosure of information to the grand jury; and facilitating the freedom of the grand jury's deliberations. See WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 600 (1990).

However, prior to the adoption of Rule 5, the Supreme Judicial Court recognized that grand jury secrecy would not be compromised by the presence of persons who were necessary to the work of the grand jury. For example, Commonwealth v. Favulli, 352 Mass. 95 (1967), held that a prosecutor has discretion as to the use of assistants and may have present such reasonable number as he or she deems appropriate to the efficient presentation of the evidence. Id. at 106. Accord, Commonwealth v. Beneficial Finance Co., 360 Mass. 188, 207-09 (1971) (no greater number than is "necessary"). Besides the jury, the prosecutors and the witness under examination, other persons "necessary or convenient to the presentation of the evidence" may include counsel for a witness (G.L. c. 277, § 14A), an interpreter, an officer to guard a dangerous prisoner-witness, an attendant for a sick witness (see 30 Mass. Practice Series [Smith] § 812 [1970]), a stenographer (G.L. c. 221, § 86), or the operator of a recording device. It should be noted that G.L. c. 221, § 86, which permits the appointment of a stenographer to take notes of testimony given before a grand jury does not authorize the recording of any statement or testimony of a grand juror.

The provision in Rule 5(c) allowing the prosecutor to be present at request of grand jurors does not deny defendant due process. See Commonwealth v. Smith, 414 Mass. 437 (1993).

Under this subdivision, it may be proper for a federal prosecutor who was involved in the investigation of the case, see Commonwealth v. Angiulo, 415 Mass. 502, 513 (1993) or a victim-witness advocate accompanying a child witness, see Commonwealth v. Conefrey, 410 Mass. 1, 7 (1991) to be present during testimony before the grand jury. However, it is ordinarily not proper for a police officer to be present, except as a witness. See Pezzano supra.

Subdivision (d). Adopted from Fed. R. Crim. P. 6(e), this subdivision incorporates the substance of former G.L. c. 277, §§ 12-13. Nothing in this rule nor in the General Laws prevents a witness before a grand jury from disclosing his or her testimony. See Commonwealth v. Schnackenburg, 356 Mass. 65 (1969); Silverio v. Mun. Court of Boston, 355 Mass. 623, cert. denied, 396 U.S. 878 (1969). The last phrase, "except in accordance with law" is intended to comprehend statute, court rule, rule or order of an administrative agency, and case law.

Subdivision (e). In order to return an indictment, the grand jury "must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him" (citations omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).

Although an indictment may be based solely on hearsay, Commonwealth v. O'Dell, 392 Mass. 445, 450-51 (1984), the Supreme Judicial Court has expressed a "preference for the use of direct testimony," Commonwealth v. St. Pierre, 377 Mass. 650, 656 (1979). A prosecutor need not present the grand jury all the evidence available to the Commonwealth, even if some of it is exculpatory. See O'Dell, 392 Mass. at 447. However, if there is exculpatory evidence that would greatly undermine either the credibility of an important witness or likely affect the grand jury's decision, the prosecutor should inform the grand jury. Id.

Although there is no statute which mandates the concurrence of at least twelve jurors in the return of an indictment, the requirement expressed in this subdivision is long-established in Massachusetts practice. See Commonwealth v. Smith, 9 Mass. 107 (1812). Grand jurors voting to return an indictment need not hear all of the evidence presented against a defendant. See Commonwealth v. Wilcox, 437 Mass. 33 (2002).

Subdivision (f). General Laws c. 277, § 15, requiring daily reports of cases where no indictment is returned, is the basis of this subdivision.

Subdivision (g). Prior Massachusetts procedure permitted the prosecutor to be present, See Commonwealth v. Favulli, supra at 107. A major change is worked by this subdivision, pursuant to which the prosecuting officer may be present during deliberations and voting only if his or her presence is requested by the grand jurors. It is believed that this will operate to enhance the independence of the grand jury, thus alloying fears that it is merely "a tool of the prosecutor".

Subdivision (h). This subdivision essentially restates those provisions of G.L. c. 277, §§ 1, 2, and 2A-2H relative to the duration of sittings of grand juries and of § 1A relative to extensions. Grand juries in Suffolk (§ 2), Middlesex (§ 2B), Worcester (§ 2E), Norfolk (§ 2F) and Bristol (§ 2H) counties are to serve for six months and in Hampden (§ 2C), Essex (§ 2G) and Plymouth counties (§ 2D) for four months "and until another grand jury has been impanelled in their stead." Notwithstanding these express statutory provisions, the summoning of the grand jury and the duration of its term is subject to the discretion of the Administrative Justice of the Superior Court pursuant to subdivision (a).