Challenging the Grand Jury

Challenging the Grand Jury

The preceding sections described how a federal grand jury is summoned, sized, kept at strength, and eventually discharged. Each step is governed by a rule, and a rule that can be broken needs a way for someone to say so. Rule 6(b), captioned as the objection to the grand jury or to a grand juror, supplies that way.¹ Under paragraph (b)(1), either the government or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and either may challenge an individual juror on the ground that the juror is not legally qualified.² The rule therefore names two targets, the panel as a whole and a single member of it, and two possible challengers. The second is wider than students expect, because the defendant is not the only party with a reason to want a defective panel exposed.

The form of the challenge follows from who controls selection. Defense counsel takes no part in choosing the grand jury, so the defense has no chance to object while the panel is being formed and can test the panel only afterward, by attacking the indictment it returned.³ That is why the objection belongs in the trial court, and why an objection to the panel's composition cannot be raised for the first time on appeal.⁴ A timely and well-founded objection lets the trial court void the indictment and send the prosecutor back to a lawfully constituted grand jury.⁵ The exact deadlines come from Rule 12, which a later section on raising defects before trial teaches in full.

Giving the government the same power to challenge may seem odd, since the prosecutor obtained the indictment in the first place. The incentives make sense once the sequence is traced. An indictment from a defectively formed panel stays open to attack, and the defect may surface only after the government has prepared for trial in reliance on it. A prosecutor who learns of the problem early would rather have the court resolve it at the outset, so the case can go back to a lawfully constituted panel, than lose the indictment after investing in a prosecution built on it. Allowing the government to raise the objection lets a defective panel be corrected before the case rests on its work.

The challenge then runs in two steps. The first is the objection under Rule 6(b)(1), which asserts the defect. The second is a motion under Rule 6(b)(2) asking the court to dismiss the indictment based on that objection or on an individual juror's lack of legal qualification, unless the court has already ruled on the same objection.⁶ One limit on the second step deserves mention now. An indictment may not be dismissed because a grand juror was not legally qualified if the record shows that at least 12 jurors, after deducting the unqualified ones, concurred in it.⁷ The reason is functional. An indictment needs twelve concurring votes, so when twelve qualified jurors voted for it, the unqualified member's presence could not have produced the result. The safe harbor speaks only to an individual juror's qualification, so a panel that was unlawfully drawn, summoned, or selected gets no such protection.

Courts have recognized only two proper grounds for objecting to the composition of a grand jury. The first is that one or more jurors failed to meet the statutory qualifications for service, and the second is that the selection process violated constitutional standards, usually through discrimination on a suspect classification such as race or gender.⁸ Both grounds concern who sat on the panel and how those jurors came to sit, which marks the boundary of what Rule 6(b) reaches.

The two defendants differ in what their objections target. The first attacks the composition of the panel, which Rule 6(b) addresses, and the second attacks the strength of the government's proof, which it does not. A stem that describes a weak presentation to the grand jury therefore does not call for a Rule 6(b) analysis, and the field of these challenges is the panel's composition. The next two subsections take up the grounds for challenge and the motion to dismiss in detail.

Grounds for Challenge

Rule 6(b)(1) says what a challenger may attack: a grand jury that was not lawfully drawn, summoned, or selected, or an individual juror who is not legally qualified.¹¹ Courts have converted that language into two recognized grounds for objecting to the composition of a grand jury. The first is that one or more jurors failed to meet the statutory qualifications for service, and the second is that the process for selecting grand jurors violated constitutional standards.¹² Each ground asks who sits on the panel and how those people came to sit there. A complaint about what the panel heard falls outside both, and the end of this section shows why the law draws the line at that place. Because the two grounds rest on different reasons, the discussion takes them one at a time.

The statutory-qualification ground is the more mechanical of the two. A statute sets the criteria for service, and those criteria define who is entitled to take part in deciding whether probable cause supports a charge. Criteria bind only when someone can enforce them, and the defense cannot enforce them during selection, because defense counsel take no part in choosing the grand jury.¹³ The challenge to an individual juror therefore does the enforcing: after the indictment is returned, a party shows that a seated juror fell outside the criteria, and the court has a defect to address. The inquiry concerns the juror's status, meaning whether the person met the qualifications, and the juror's views or vote form no part of it.

The single fact that separates the two cases is the juror's status. A juror who lacks a statutory qualification can be challenged as not legally qualified, while a juror who has every qualification cannot be challenged on that ground, whatever the defendant thinks of the vote.¹⁴ What follows once a qualification defect is proved, including when a court will dismiss the indictment, belongs to the next subsection.

The constitutional ground looks at the selection process as a whole. The Equal Protection Clause bars a State from deliberately and systematically excluding people from a grand jury because of race, class, gender, or national origin, as Taylor v. Louisiana recognized.¹⁵ The limit applies although a State need not use a grand jury at all. The Fifth Amendment's indictment requirement does not bind the States, yet a State that adopts a grand jury or a preliminary hearing cannot run it in a way that denies equal protection.¹⁶ The elements of the challenge match those required for a challenge to a trial jury, so the familiar showing of deliberate, systematic exclusion carries over to the grand jury.¹⁷ The paradigm is a jury commission that systematically leaves a racial group off the list from which the panel is drawn. Such a process violates constitutional standards, and it fits the rule's description of a grand jury that was not lawfully selected.¹⁸

A claim of exclusion has to identify an actual exclusion. In State v. Vega-Larregui, a New Jersey court allowed virtual grand jury proceedings during the pandemic and rejected the argument that the panel lacked a fair cross-section of the community because some potential jurors might have lacked a computer or internet access.¹⁹ The court supplied jurors with the equipment they needed and trained them, which answered the concern about who might be left out. A possible gap in participation that the court itself closed therefore differs from a commission's systematic omission of a group, and only the second carries the ground.

Racial discrimination in selecting grand jurors draws the strongest response, and three decisions show how far it reaches. Ex parte Virginia established long ago that an indictment is subject to constitutional challenge if the grand jury selection procedure operated to discriminate on racial grounds.²⁰ Rose v. Mitchell then addressed the harder question whether a later fair trial cures the defect, and reasoned that racial discrimination "strikes at the fundamental values of our judicial system and our society as a whole," so the challenge remains cognizable on appeal or postconviction review even after a fairly selected trial jury has convicted.²¹

Vasquez v. Hillery explains why a conviction cannot cure the defect. A guilty verdict shows that the evidence sufficed to indict, but a grand jury of a different racial composition may have chosen to charge a lesser offense than the evidence might support, so the verdict cannot show that the discrimination changed nothing.²² The two cases answer different questions. Rose rests on the character of the wrong, and Vasquez rests on the function of the grand jury, which is why together they justify a rule that might otherwise seem harsh toward a verdict reached beyond a reasonable doubt. A few structural errors of this kind, most notably racially discriminatory selection, call for no showing of prejudice, a point the later section on structural errors develops.²³

The boundary between these grounds and complaints about the evidence follows from how each kind of defect gets corrected. In Costello v. United States, a case about hearsay before the grand jury, the Court held that an indictment returned by a legally constituted and unbiased grand jury, valid on its face, is enough to call for trial on the merits.²⁴ Courts read that rule broadly, so virtually any challenge to the sufficiency or admissibility of the evidence presented to the grand jury is rejected on a motion to dismiss.²⁵ In Calandra v. United States the Court took the same approach to illegally obtained evidence and allowed the grand jury to consider it, because permitting such challenges would burden the pretrial process and the defendant's rights are satisfied by excluding the evidence at trial.²⁶ The grand jury decides only whether a trial is necessary, and the trial is where defendants receive strict observance of the rules designed to produce a fair verdict, so a rule allowing evidentiary attacks on the grand jury would add delay without adding to the fairness of the trial.²⁷

That reasoning places the line. An evidence defect is one the trial corrects, because the trial jury hears the proof afresh and unlawful material can be kept out. A composition defect has no such corrective, because no later body reconsiders whether to charge or what to charge, which is the point Vasquez identified. The hearsay complaint in Costello and the exclusion claims above therefore fall on opposite sides of Rule 6(b)(1), and a fact pattern can be sorted by running the questions in order.

Students lose points here by treating any serious-sounding irregularity before the grand jury as a ground for challenge. A stem that complains of what the grand jury heard describes evidence, which courts decline to review at this stage, while a stem that describes how jurors were qualified or chosen describes composition, which Rule 6(b)(1) reaches.³⁰ Rule violations and prosecutorial misconduct before the grand jury raise a separate question, treated in the later sections on irregularities, and they do not turn an evidence complaint into a composition challenge.

Motion to Dismiss

An objection under Rule 6(b)(1) asserts that the grand jury or one of its members is defective, but the objection alone does nothing to the indictment. Rule 6(b)(2) supplies the step that does: a party may move to dismiss the indictment based on an objection to the grand jury or on an individual juror's lack of legal qualification, and the motion is governed by 28 U.S.C. § 1867(e).³² Dismissal is the remedy because the indictment is the product of the defective body, and the defense had no voice in choosing that body. A timely and well-founded pretrial objection lets the trial court void the indictment and send the prosecutor back to a lawfully constituted grand jury.³³ The remedy therefore sends the case back to the starting point. Until trial begins, double jeopardy does not protect the accused from successive grand jury investigations, so the prosecutor may present the case again to a properly constituted panel.³⁴ Rule 6(b)(2) then places two limits on the motion, and each has its own reason.

The first limit closes the door on repeat motions. A party may not move to dismiss on an objection the court has previously ruled on under Rule 6(b)(1).³⁵ The Rule 6(b)(1) stage is where the court decides whether an objection has merit, so a second ruling on the same point could only repeat the first while delaying the case. The bar attaches to the objection itself, which means a different objection remains open to the party.

The second limit is the safe harbor for juror disqualification. The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment.³⁶ The reason is functional. An indictment needs the concurrence of at least twelve jurors, a voting rule developed in a later section. When twelve qualified jurors voted to charge, taking the unqualified juror out of the count leaves the indictment standing on qualified votes alone, so the defect could not have changed the result. Dismissal would only force the government to reconvene a grand jury, present the same evidence, and collect the same twelve votes. The rule's wording is mandatory, so once the record shows twelve qualified concurring jurors, the court has no discretion to dismiss on this ground.

The number the arithmetic starts from comes from the grand jury's own paperwork. The foreperson, or another juror the foreperson designates, records the number of jurors concurring in every indictment and files that record with the clerk, and the record stays out of public view unless the court orders otherwise.³⁷ The safe-harbor question is then a subtraction: take the number who concurred, remove each concurring juror shown to be unqualified, and ask whether twelve remain.

The two cases differ in one fact, the number of qualified jurors among those who concurred. A total of twelve votes meets the voting threshold, yet it does not satisfy the safe harbor when one of those votes came from an unqualified juror. The safe harbor counts qualified concurrences, and the raw tally of votes is only the starting figure.

The safe harbor also has a limited reach. It speaks only to a ground that a grand juror was not legally qualified, so a motion resting on a panel that was not lawfully drawn, summoned, or selected receives no such protection.³⁸ The counting works when the defect is one person's status, because the other votes can be examined separately. A defect in the selection process reaches every juror at once, since all of them came through the same process, and no clean group of qualified votes is left to count. Racially discriminatory selection is the clearest illustration. In Vasquez v. Hillery the Court recognized that constitutional infirmities in the composition of a grand jury may invalidate a conviction even though the trial jury was legally constituted and guilt was established beyond a reasonable doubt.³⁹ The later section on structural errors explains why such a defect calls for no showing of prejudice. On an exam stem, the trap is applying the twelve-juror count to every composition objection, when the safe harbor reaches only an individual juror's lack of qualification.