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11.2 Grand Jury Instructions

    11.2.1 Right To Discovery Of Instructions Given Grand Jury
    11.2.2 Instruction That The Defendant Does Not Have The Burden Of Proof As To Defense Theory That Negates An Element Of The Charge
    11.2.3 Right To Instruct Grand Jury On Defense Theories
    11.2.4 Grand Jury: Instruction On Role Of Foreperson
    11.2.5 Prosecution By Grand Jury Indictment: Cautionary Instructions To Trial Jury
    11.2.6 Grand Juries: Instruction – Nullification

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    11.2.1    Right To Discovery Of Instructions Given Grand Jury

PRACTICE NOTE: In reviewing the validity of a grand jury indictment, the instructions given the grand jury may play an important role. For example, if the grand jury was given an incomplete or inaccurate description of the elements of the offense or the applicable burden of proof, the reliability of the indictment may be questioned. (See generally NCJIC 300.29 [Reliability Of Trial And Verdict].)

    Hence, People v. Superior Court (Mouchaourab) (CA 2000) 78 CA4th 403, 436-37 [92 CR2d 829] held that the defendant has a right to discovery of information regarding certain nontestimonial proceedings before the grand jury, including the instructions the district attorney and supervising court give the grand jurors. The majority inferred the right to discovery of the nontestimonial portions of the grand jury record from state supreme court cases that considered such information in evaluating defendants' statutory challenges to their indictments. (See also Johnson v. Superior Court (CA 1975) 15 C3d 248 [124 CR 32] [prosecutor must present to grand jury exculpatory material of which prosecutor is aware]; People v. Backus (CA 1979) 23 C3d 360 [152 CR 710]; Cummiskey v. Superior Court (CA 1992) 3 C4th 1018 [13 CR2d 551].)

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    11.2.2    Instruction That The Defendant Does Not Have The Burden Of Proof As To Defense Theory That Negates An Element Of The Charge

PRACTICE NOTE: The defendant does not have the burden of proof as to defense theories that negate an element of the offense. (See NCJIC 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].) Because the grand jury may not understand this important principle, it may be necessary to provide an explanatory instruction. (See e.g., NCJIC 251.2.3.10 [Alibi: Grand Jury Should Be Instructed That Defendant Does Not Have The Burden Of Proof].)

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    11.2.3    Right To Instruct Grand Jury On Defense Theories

PRACTICE NOTE: As a logical corollary to the defendant's right to present exculpatory evidence to the grand jury (see NCJIC 11.1.2 [Grand Jury Procedure: Duty Of Prosecutor To Present Exculpatory Evidence]) is the right to have the grand jury instructed on the defense theories raised by the evidence. (See e.g., NCJIC 2.2 [Sanitizing The Written Instructions].) Indeed, the right to present evidence is meaningless if the fact finder is not required to properly consider it. (See e.g., U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case which dilutes the jury's consideration of the issues and directs a verdict against the defendant]; see also NCJIC 16.3.1 [Jury Must Consider All Of The Evidence; see also NCJIC 300.6.1 [Constitutional Claims: Failure To Instruct Upon Defenses].)

RESEARCH NOTE:

The Battered Woman, Self-Defense, and the Grand Jury: Why the Jury Refused to Indict. V.L. Lutz, C.M. Bonomolo, 32 Trial 46, Aug. 1996.

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    11.2.4    Grand Jury: Instruction On Role Of Foreperson

    See NCJIC 277.2 [Foreperson: Selection by Judge].

    See also NCJIC 277.3 [Foreperson’s Vote Carries No Greater Weight Than Any Other Juror].

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    11.2.5    Prosecution By Grand Jury Indictment: Cautionary Instructions To Trial Jury

   See NCJIC 12.2.2 [Charging Document Is Not Evidence].

   See also NCJIC 12.2.3 [Charging Document: No Reference To Grand Jury].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [19. Sending Copy Of Indictment To Jury].

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    11.2.6    Grand Juries: Instruction – Nullification

PRACTICE NOTE: The Ninth Circuit held, in United States v. Marcucci (9th Cir. 2002) 299 F3d 1156, that there is no right to a grand jury nullification instruction. However, it is permissible to instruct the grand jury that it should, rather than must, indict if it finds probable cause.