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Table of Contents
11.1 Miscellaneous Issues
11.1.1 Grand Jury Procedure: Discrimination Against Cognizable Classes Impermissible
11.1.2 Grand Jury Procedure: Duty Of Prosecutor To Present Exculpatory Evidence
11.1.3 Perjury Before Grand Jury
11.1.4 Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice
11.1.5 Willful Refusal To Give Testimony To Grand Jury Requires Corrupt Motive
11.1.6 Grand Jury: Variance Between Indictment And Evidence At Trial
11.1.7 Grand Jury: No Bifurcation Of Prior Conviction Allegation
11.1.8 Grand Jury: Third Party Access
To Transcripts
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11.1.1 Grand Jury Procedure: Discrimination Against Cognizable Classes Impermissible
PRACTICE NOTE: Discrimination based on race, gender or against any cognizable class in the selection of grand jurors or grand jury officers is impermissible. (See e.g., Castaneda v. Partida (1977) 430 US 482, [97 SCt 1272; 51 LEd2d 498] Rose v. Mitchell (1979) 443 US 545, 555 [99 SCt 2993; 61 LEd2d 739].)
BRIEFING AVAILABLE: For briefing on the question of racial discrimination in the selection of grand jury forepersons, click here. [Brief Bank # B-901].
RESEARCH NOTES:
See Capital Punishment Handbook [2.6.3a. Inquiry Into Racial Attitudes Of Jurors: General Principles And Authorities].
See also Benchbook For U.S. District Court Judges.
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11.1.2 Grand Jury Procedure: Duty Of Prosecutor To Present Exculpatory Evidence
RESEARCH NOTES:
Annotation, Duty of Prosecutor To Present Exculpatory Evidence To State Grand Jury, 49 ALR5th 639.
See Capital Punishment Handbook [2.6.3a. Inquiry Into Racial Attitudes Of Jurors: General Principles And Authorities].
See also Benchbook For U.S. District Court Judges.
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11.1.3 Perjury Before Grand Jury
See
FORECITE National™ 273.10.10 [Jury Unanimity: Perjury].See FORECITE National™ Federal Models By Offense: False Declaration Before Grand Jury Or Court (18 USC 1623).
RESEARCH NOTES:
See Capital Punishment Handbook [2.6.3a. Inquiry Into Racial Attitudes Of Jurors: General Principles And Authorities].
See also Benchbook For U.S. District Court Judges.
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11.1.4 Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice
See
FORECITE National™ 84.1.2.4 Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory.RESEARCH NOTES:
See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].
See also Benchbook For U.S. District Court Judges [5.04.3 Handling The Recalcitrant Witness: Recalcitrant Witness Before Grand Jury].
See also Benchbook For U.S. District Court Judges [5.04.4 Handling The Recalcitrant Witness: Related Sources, Issues And Instructions].
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11.1.5 Willful Refusal To Give Testimony To Grand Jury Requires Corrupt Motive
PRACTICE NOTE: See U.S. v. Banks (11th Cir. 1993) 988 F2d 1106, 1109-1111 [prosecution required to prove a corrupt motive].
RESEARCH NOTES:
See also Benchbook For U.S. District Court Judges [5.04.3 Handling The Recalcitrant Witness: Recalcitrant Witness Before Grand Jury].
See also Benchbook For U.S. District Court Judges [5.04.4 Handling The Recalcitrant Witness: Related Sources, Issues And Instructions].
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11.1.6 Grand Jury: Variance Between Indictment And Evidence At Trial
PRACTICE NOTE: See Pichon v. State (TX 1988) 756 SW2d 16, 19 [fatal variance can result when indictment alleges person from whom defendant received stolen property is unknown, but proof developed at trial shows that indicting grand jury did in fact know person's name, or could have ascertained it by reasonable diligence].
See also
FORECITE National™ Chapter 40 [Variance Between Pleading And Proof].See also
FORECITE National™ 83.2.6 [Conspiracy: Variance].See also
FORECITE National™ 300.2.1 [Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right to Effective Assistance of Counsel].RESEARCH NOTES:
See Capital Punishment Handbook [2.6.3a. Inquiry Into Racial Attitudes Of Jurors: General Principles And Authorities].
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11.1.7 Grand Jury: No Bifurcation Of Prior Conviction Allegation
PRACTICE NOTE: See State v. Superior Court (AZ 1989) 778 P2d 1288, 1290 [bifurcation of prior required at trial but not before grand jury].
See also FORECITE National™ 39.2 [Bifurcation As Strategy For Limiting Prejudicial Impact Of Prior Conviction].
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11.1.8 Grand Jury: Third Party Access To Transcripts
PRACTICE NOTE: Hinojosa v. State (IN 2003) 781 NE2d 677 held that litigants seeking grand jury transcripts must show with particularity a need to prevent injustice that outweighs the reasons behind a state’s policy of grand jury secrecy and the information sought must be unavailable by any other means.
In Hinojosa, a police department took disciplinary action against an officer for going public with an allegation of a cover-up of a drunk driving incident involving another officer. The grand jury had indicted both the officer and the others accused of the cover-up, but only the charges against the allegedly intoxicated officer went to trial. Hinojosa sought production of the grand jury transcripts hoping they would be useful in defending against the disciplinary charges, arguing that the transcripts "undoubtedly contain[ed] some evidence substantiating his claim of a cover-up.