Who May Be Present

Who May Be Present

Once a grand jury has been lawfully drawn and impaneled, the next question is who may sit in the room with it. Rule 6(d) answers that question in two stages, and each stage has its own list of permitted persons.¹ While the grand jury is in session, the jurors may be joined by attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or operator of a recording device.² While the grand jury is deliberating or voting, the circle narrows to the jurors alone, plus any interpreter needed to assist a hearing-impaired or speech-impaired juror.³ This two-stage filter operates as a closed list at each stage, so a person who is absent from the list for the current stage has no claim to be in the room, however large an interest that person has in the outcome.

The reason for a closed room becomes clear from what a grand jury actually does. In Branzburg v. Hayes the Court described the grand jury as an instrument of law enforcement whose investigatory function includes deciding whether a crime has been committed and who committed it, which requires the body to call witnesses in whatever manner best suits the task, and the Court observed that such an inquiry may begin with tips, rumors, evidence offered by the prosecutor, or the jurors' own knowledge.⁴ A body working this way questions people about conduct, and about individuals, that may never lead to a charge. Two separate reasons for limiting attendance follow from that setting. The first is candor: a witness questioned about a suspected crime speaks more freely when the audience consists only of the people needed to run and record the session, and the first list fits that need, since the government's lawyers present the matter, the witness supplies information, the interpreter makes the testimony intelligible, and the reporter preserves it. The second is independence at the moment of decision. A lawyer who has spent the session presenting a case naturally has a preference about the result, and the vote to indict is the one point at which the judgment must belong to the jurors alone. Excluding even the prosecutor at the second stage removes that influence at its source.

Running the filter therefore starts with asking which stage the facts describe, because a person admitted at one stage may be barred at the next. A government attorney who questioned witnesses all day belongs in the room during the session and must leave when the jurors turn to deliberating or voting, and the same is true of the witness, the court reporter, and any interpreter other than one assisting a juror. Students lose points here by assuming that presence during testimony carries over to the vote, when the second list is shorter and the first list gives no right to remain.

The first list is also keyed to function in a second way. It refers to the witness being questioned, in the singular, so a second witness who sits in while another testifies is not on the list, even though that person will be questioned later.⁵ The exclusion has an evident purpose: a witness who hears another's testimony can adjust a later account to match it, which weakens the independent accounts the grand jury is trying to gather. Whether such a violation costs the government its indictment is a different question from whether the violation occurred, and the later sections on irregularities take it up. The next two subsections apply each stage in turn, beginning with the session and then turning to deliberations and voting.

During the Session

The first of the two lists in Rule 6(d) is the longer one, and the whole of it operates as a closed list. While the grand jury is in session, the persons who may be present are attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.⁷ The grand jurors, as the body in session, sit apart from that list, so the list names everyone else who may share the room with them. Nothing in the rule admits other people by permission or agreement. A person who appears nowhere on the list therefore has no claim to be present, however large that person's stake in the outcome. Each listed role does a job the session requires. The government attorney presents the case and also acts as the grand jury's primary legal adviser, explaining the elements of the crimes that might be charged.⁸ The witness supplies the information the jurors are there to hear, the interpreter makes that information intelligible when the witness needs language help, and the reporter or recording operator preserves it, a duty the later section on recording the proceedings develops.

The omissions from the list matter as much as the entries. The target of the investigation, defense counsel, and any witness other than the one under questioning are all absent, and the reasons track the purposes of grand jury secrecy. A target who sees the shape of the inquiry may flee, destroy evidence, or tamper with witnesses, and witnesses who are the target's associates or employees may hold back if they fear the target will learn what they said.⁹ Keeping the target out of the room removes both dangers at the source. Defense counsel is excluded for a related reason: the session is a one-sided investigation, not an adversarial hearing. No judge presides, and the prosecutor chooses which cases to present and which witnesses to call.¹⁰ There is accordingly no right to have counsel present at grand jury proceedings, and that includes a lawyer who represents the witness being questioned.

The absence of the accused and defense counsel from the room also has a consequence at trial. In Crawford v. Washington the Court held that testimonial hearsay is admissible against the accused only if the declarant is unavailable and the accused had a prior opportunity for cross-examination, and it listed prior testimony before a grand jury among the clearest examples of testimonial statements.¹¹ Because no one on the accused's side can be in the room to cross-examine, grand jury testimony never carries that opportunity with it, which is why its use against the accused at trial is so restricted.¹²

The second scene is not only hypothetical. In Bank of Nova Scotia v. United States the defendant alleged that the prosecutor had presented more than one witness to the grand jury at the same time, a violation of Rule 6(d)(1), and had tried to influence the testimony of an expert witness.¹³ The Court held that showing a violation of the grand jury rules does not by itself earn relief. Dismissal is appropriate only if the violation substantially influenced the decision to indict, or if there is grave doubt that the decision was free from such influence.¹⁴ The reason lies in what the grand jury does. It decides only whether a trial is necessary, and the trial that follows supplies strict protections for a fair verdict, so a misstep in the room that did not move the decision to indict leaves the accused where a proper session would have left them.¹⁵ Proving that influence is hard in practice, because the proceedings are secret and a transcript can be obtained only with the district court's permission after a preliminary showing.¹⁶

Exam stems exploit the gap between violation and remedy. A fact pattern that puts a second witness, the target, or a defense lawyer in the grand jury room first asks whether Rule 6(d)(1) was violated, and the answer is yes. Whether the indictment survives is a second question about prejudice, taken up in the later section on rule violations. Students lose points by moving straight from the first answer to dismissal, when a violation alone does not void the indictment.¹⁷

During Deliberations and Voting

The second list in Rule 6(d) is far shorter than the first. When the grand jury moves from hearing evidence to deliberating or voting, no one other than the jurors may be present, with a single exception for an interpreter needed to assist a hearing-impaired or speech-impaired juror.²¹ Everyone admitted during the session must therefore leave: the government's attorneys, the witness, the court reporter or recording operator, and any interpreter who was serving a witness. The interpreter in this rule is a different figure from the one in the session list. The earlier interpreter makes a witness's testimony intelligible, while this one exists so that a juror who cannot hear or speak with ease can follow the discussion and take part in it. The exception reaches no further than that need.

Each half of the rule has its own logic. The exclusion of everyone else rests on the prosecutor's position in the process. The grand jury decides whether to indict and what to charge, and it usually does so on the prosecutor's recommendation and with the prosecutor's advice.²² The prosecutor has also spent the session choosing witnesses and presenting the evidence, so the prosecutor arrives at the vote already holding a view of the right result. A lawyer with that view, sitting among jurors who are still making up their minds, can sway them with a comment, a hesitation, or a well-timed answer to a question, and the influence need not be intended to be real. Removing the prosecutor at the moment of decision takes that pressure out at its source and leaves the vote as the jurors' own judgment. The same closed door serves the jurors' freedom to weigh the case without fear of outside pressure or influence, which is one of the reasons grand jury proceedings are kept private in the first place.²³

The interpreter exception answers a different problem. A juror with a hearing or speech impairment who was left alone in a room of jurors without assistance would be shut out of the one discussion the grand jurors conduct entirely among themselves. Admitting an interpreter keeps that juror in the conversation, and because the interpreter only carries words between the juror and the others, the interpreter adds no view of the case to the room. That is why the rule admits an interpreter only where the juror needs one.

The empty room also fits with the recording rule taken up in the next section. Rule 6(e)(1) requires the proceedings to be recorded except while the grand jury is deliberating or voting, so the court reporter's exit under Rule 6(d)(2) and the absence of any transcript of the deliberations go together. Because nothing records what happens behind the closed door, the rule has to protect the jurors in advance by emptying the room, since no one can reconstruct the discussion afterward to check who was there.

The offer to answer legal questions is the usual excuse for staying, and it fails because the rule contains no exception for advice. Students lose points by assuming that a prosecutor may remain to answer the jurors' questions, when the session list that admitted the prosecutor as legal adviser does not carry into deliberations. If the jurors need legal guidance, the way to get it under the rule is to return to session, with the prosecutor back in the room, and resume deliberating only after the prosecutor has left again.