Returning the Indictment

Returning the Indictment

The sections above followed the grand jury from its summoning through its secrecy obligations. This section follows its decision to the point where it becomes a charge before a court. Rule 6(f) governs that point and speaks in two parts, a vote and a return. The vote comes first: a grand jury may indict only if at least 12 jurors concur.¹ The return follows, because a decision reached in the jury room has no effect on the defendant until a court receives it. The grand jury, or its foreperson or deputy foreperson, must deliver the indictment to a magistrate judge in open court.²

Each part answers a different need. The concurrence floor makes the accusation the product of agreement among a fixed minimum of jurors, so a charge cannot rest on the voices of a handful of them. The return procedure addresses the opposite problem. A decision made in secret needs an official moment at which it enters the court's record, and open-court delivery to a magistrate judge supplies that moment by turning the jurors' work into a document the court can act on. The foreperson links the two parts, since the foreperson signs every indictment and records the number of jurors who concurred, filing that record with the clerk under a rule that keeps it from public view unless the court orders otherwise.³ The next subsection takes the vote first, because the return has nothing to deliver until the required number of jurors has agreed to indict.

Twelve-Juror Concurrence

Rule 6(f) sets the voting threshold, the twelve-juror concurrence rule: a grand jury may indict only if at least 12 jurors concur.⁴ To concur means to vote in favor of the charge, so only affirmative votes count toward the twelve. A juror who is absent, who abstains, or who votes against the charge adds nothing to the total. The figure is also a fixed number rather than a share of whoever is in the room. A federal grand jury has between 16 and 23 members, and 12 of them must agree to vote an indictment.⁵ The same twelve are therefore required whether 23 jurors attend or only 17. Students lose this point when they treat the threshold as a majority of those present, since a majority rule would let nine of sixteen jurors indict, and the Rule does not permit that.

Because the number is fixed, the share of the body that must agree rises as the body shrinks. At the maximum size of 23, twelve is a bare majority, which matches the common-law practice under which a charge could issue only if at least 12 grand jurors agreed.⁶ Federal grand jurors sit for a long term, so absences and withdrawals can pull the roster below 23, and with the body reduced to 16 the requirement of 12 votes amounts to a three-fourths vote.⁷ The federal rule thus carries forward the common-law count of twelve and lets the proportion change while the count stays put.

The fixed floor has two parts to its logic. The functional reason is that a charge should rest on the same minimum of agreement however many jurors happen to attend. If the threshold were a share of attendance, an indictment returned on a thin day would reflect the judgment of only a handful of citizens. The incentive reason is subtler, because the prosecutor effectively controls when the grand jury convenes and what it hears.⁸ A floating threshold would reward scheduling a vote on a day when few jurors can come. A fixed twelve removes that reward, since every absence makes the vote harder to win and never easier. That result fits the federal view of the grand jury as a shield that screens out unfounded prosecutions.⁹

Other jurisdictions that use grand juries set the number differently: all require the concurrence of at least a majority of the empaneled jurors, some accept that simple majority, and most states with grand juries use smaller bodies that must reach two-thirds or three-fourths.¹⁰ The federal figure of twelve is the one this chapter applies.

The pair holds attendance constant at seventeen and moves only the number concurring, which is the variable Rule 6(f) uses. The vocabulary follows the outcome. The grand jury's formal charging instrument is the indictment, also called a true bill, and a decision not to indict is a no true bill.¹¹ Older usage called the refusal an ignoramus or a no bill, a finding the common-law grand jury returned when the required jurors would not support the prosecutor's proposed charge.¹² A no true bill is not an acquittal, because no trial has occurred, and the prosecutor remains free to put the matter before another grand jury, much as a court that voids an indictment on a pretrial objection sends the prosecutor back to a lawfully constituted one.¹³

Rule 6(f) itself attaches one further consequence to a failed vote. If a complaint or information is already pending against the defendant and twelve jurors do not concur, the foreperson must promptly report the lack of concurrence to the magistrate judge in writing.¹⁴ The written report tells the court that the grand jury has acted and declined, so the pending charge is not left waiting on a grand jury decision that has already been made. The mechanics of returning an indictment that does clear the threshold are the subject of the next subsection.

The twelve-juror floor is a fact that may have to be proved long after the vote, and Rule 6(c) creates the proof. The foreperson, or another juror the foreperson designates, records the number of jurors concurring in every indictment and files the record with the clerk, and the record may not be made public unless the court so orders.¹⁵ Each feature has its reason. A tally made at the moment of the vote is more reliable than anyone's later recollection, and recollection is a poor substitute in any event because the jurors' discussion is kept secret. Keeping the filed record non-public follows the same logic: a public tally would show how closely divided the jurors were and would expose them to the public pressure that grand jury secrecy exists to prevent.¹⁶ The court-order exception lets a party whose challenge turns on the vote count ask the court to open the record.

The record matters most in connection with the safe harbor in Rule 6(b)(2), met earlier in the discussion of motions to dismiss. That provision forbids dismissing an indictment because a grand juror was not legally qualified when the record shows that at least twelve qualified jurors concurred. The foreperson's record is the evidence the safe harbor needs. Because it states a number and does not name who voted which way, the safe arithmetic assumes that any unqualified juror was among those concurring and subtracts that juror from the total.

The pair holds the unqualified juror constant and moves only the recorded count. A count filed at the time of the vote turns what would otherwise be a dispute over the jurors' memories into arithmetic, and that is why the foreperson's record is part of the rule and not a clerical afterthought.

Return and Signatures

Once twelve jurors have voted to indict, the decision exists only inside the jury room, and Rule 6(f) prescribes how it reaches the court. The grand jury, or its foreperson or deputy foreperson, must return the indictment to a magistrate judge in open court.¹⁹ Each element of that instruction has its own job. The recipient is a judicial officer rather than the prosecutor who asked for the indictment, so the court itself receives the grand jury's decision from the grand jury's own representative. The setting is open court, which gives the receipt an identifiable, official moment that becomes part of the court's record. And because the deputy foreperson acts as the foreperson whenever the foreperson is absent, the return does not stall on one juror's absence.²⁰ Return in open court does not make the indictment public, since, as the discussion of sealed indictments showed, the magistrate judge who receives the return is also the officer who may direct that it be kept secret.

The Rule also relaxes where the return must physically happen. To avoid unnecessary cost or delay, the magistrate judge may take the return by video teleconference from the court where the grand jury sits.²¹ The option exists for the situation in which the grand jury and the magistrate judge are in different places, because otherwise someone would have to travel simply to deliver a document the jurors have already approved. Two limits keep the shortcut from changing what a return is. The choice belongs to the magistrate judge, as the word may indicates, and the video link must run from the court where the grand jury sits, so the grand jury's representative still appears in a courthouse before a judicial officer. Only the location of the participants changes, and the function of the return stays the same.

The return procedure describes what happens when the grand jury indicts. Rule 6(f) also tells the foreperson what to do when the grand jury does not, but only in one setting. If a complaint or information is pending against the defendant and twelve jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge.²² The duty has two triggers: a charge must already be pending, and the vote must have fallen short of twelve. Where no charge is pending, nothing is left waiting on the grand jury, so the report would tell the court nothing. Where a complaint or information is pending, that charge is one the prosecutor filed without a grand jury's approval, and the court needs to learn from the grand jury that the approval did not come.

The form of the report follows from the same logic. The Rule assigns the task to the foreperson rather than the prosecutor for an incentive reason: the prosecutor wanted the indictment and has a stake in how its failure is described, while the foreperson speaks for the jurors. A writing replaces a remark that could later be disputed with a record, and the requirement of promptness keeps the pending charge from sitting on the docket as though an indictment might still arrive. The report does not end the matter for good. A grand jury's refusal to indict does not stop the prosecutor from presenting the evidence to another grand jury, and double jeopardy does not protect the accused from successive grand jury investigations before trial begins.²³

Two signatures appear on a returned indictment, and they do different work. The foreperson signs all indictments under Rule 6(c), and the deputy foreperson takes over that duty when acting in the foreperson's absence.²⁴ The foreperson's signature marks the document as the grand jury's act, yet its practical importance is modest, because a missing foreperson signature is generally not fatal to the indictment.²⁵ Rule 7(c)(1) separately requires the prosecutor to sign, and that signature carries real weight because a grand jury cannot force a prosecutor to bring charges the prosecutor does not want to bring.²⁶ Students lose this point when they treat both signatures as equally essential, since only the prosecutor's signature is tied to a power the grand jury lacks.

The prosecutor's signature has a history that explains its place. Federal grand juries apparently could force a prosecution on their own initiative when the Constitution was adopted, through a presentment, which is a charge a grand jury issues without the prosecutor's request. As the executive branch came to treat prosecution as its own function, federal prosecutors rejected any duty to convert presentments into indictments, and Rule 7 recognized that authority by speaking only of prosecution by indictment and by requiring the attorney for the government to sign.²⁷ Lower courts then treated the act of signing as discretionary, so a prosecutor has no obligation to turn an accusation the grand jury favors into a formal charge.²⁸ The result is a two-key design. The grand jury's vote checks the prosecutor's wish to charge, because twelve jurors must agree, and the prosecutor's signature checks the grand jury, because agreement alone cannot compel a charge.