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Letter: Grand Jury questions

Mary Bardin writes:
I see postings of cases indicted by Grand Jury, but I don't see anything posted about cases not indicted. I do not understand the system. How are people chosen to be on the Grand Jury? Are there attorneys at the Grand Jury? Who decides what cases go to Grand Jury? I know it is very secretive, but what happens to the cases without enough evidence? Are the cases not indicted held over and taken again. How does this work? I have never been in Grand Jury, but have friends that were, but these people can't explain to me. I have done some medical/legal consulting, but no one has explained the process to me. I have researched but still can't understand the process--nosey by nature I guess.

Mary, those are great questions. We reached out to Brian Wright, Commonwealth's Attorney for Adair and Casey Counties, and he has provided detailed responses to all of your questions about the Grand Jury process in Kentucky. Click the article headline to see his response.

By Brian Wright
Commonwealth's Attorney, 29th Circuit

  1. Selection for grand jury - Basically this is a random process by which grand jurors are selected from a larger pool of potential jurors. Prior to each jury panel's term of service, the circuit clerk requests a juror list through the Administrative Office of the Courts (AOC). AOC will then randomly generate a list of names by computer (I think it is usually a couple hundred names every time a new jury is empaneled - the circuit clerk can answer that part of the question better). Those names are randomly selected from a master list that includes all persons who live in the particular county where the jury is being empaneled - e.g., Adair County - based on the county's voter registration and licensed driver lists (it may also include persons that list Adair as their home county on a census response or on their income tax return - I'm not completely sure about that part). Those potential jurors are mailed juror questionnaires that they are asked to complete and return to the local circuit clerk's office along with a summons directing them to report for jury duty. That list of potential jurors makes up the venire - i.e., the entire panel of jurors - who will serve for a certain period of time in the circuit court of the particular county. Those jurors are given a jury orientation date and they are brought in so that the judge can formally empanel them and make sure they are all qualified to serve as jurors. A prospective juror is disqualified to serve on jury duty for the following reasons: not being a U.S. resident; not being a resident of this county; inability to understand the English language; physical/mental disability that renders the person incapable of performing jury service effectively; having served on another jury within the previous 24 months; being presently under indictment; having been convicted of a felony and not having had their civil rights restored; or if they are less than 18 years old. Those jurors who are qualified then serve as the jury panel for a given period of time - some counties keep the jury panel for one month, some keep the same jury panel for up to one year. In Adair/Casey, the circuit court jury panels generally serve for six-month periods (this has been extended during Covid), and a new panel is brought in approximately every six months. I am not sure how long the district court jury panels serve - the circuit clerk can answer that question. Once the circuit court jury is empaneled and everyone is qualified, then the judge will randomly select a grand jury from that panel. The clerk will usually will draw 14 names, which will include 12 grand jurors and 2 alternates. If additional alternates are needed, the clerk will randomly select a name from the remaining jury panel. Those grand jurors are then administered a separate grand jury oath and they serve as grand jurors until the next panel is brought in. The jurors who are not selected for grand jury will serve as jurors for any trials that are conducted during their term of jury service.

  2. Are there attorneys at the Grand Jury? - Yes - the Commonwealth's Attorney and/or his/her assistant will be present when the grand jury hears testimony - but not while the grand jury deliberates. Kentucky Rule of Criminal Procedure (RCr) 5.14 states that the Commonwealth's Attorney, or his/her assistant, shall attend the grand jurors when requested by them, or on his/her own initiative, and will give the grand jurors legal advice. The attorney for the Commonwealth also examines witnesses and drafts indictments for the grand jury (per RCr 5.14). RCr 5.18 describes who else can be present while the grand jury hears testimony (attorney for the Commonwealth; stenographer or operator of a recording device appointed by the attorney for the Commonwealth; witness; an interpreter if needed; or a parent, guardian, or custodian of a minor witness or other person under a disability). No person can be present while the grand jury is deliberating.

  3. Cases that are not indicted - Those cases are dismissed and may be expunged; those cases may also be resubmitted to another grand jury. For an indictment to be returned, 9 or more grand jurors must agree to the indictment. Grand jurors will hear testimony about a case and then deliberate based on the evidence and the law. RCr 5.22 details what happens when a grand jury fails to indict someone whose case has been considered by the grand jury. Basically, the case is dismissed, the defendant is to be released from custody (if he is in custody), the defendant's bail is to be discharged and any bond money posted shall be refunded. KRS 431.076(1)(c) now also provides that a case may be dismissed and expunged if felony charges are originally filed in district court but do not result in an indictment or a criminal information being filed. The law does permit a case to be submitted to another grand jury if a grand jury fails to return an indictment. RCr 5.24 addresses the secrecy of grand jury proceedings and states that violation of the Rule shall be punishable as a contempt of court. By deciding which cases to indict and which cases to not indict - whether based on a determination that no crime has been committed or where there is not sufficient evidence to believe the accused committed a crime - the grand jury safeguards the rights of the victim, the accused, and society.

  4. Who decides what cases go to a grand jury? - The District Court, the Commonwealth's Attorney, and the Grand Jury members themselves. Cases come to the grand jury primarily through two avenues: either a case is referred to the grand jury by the district court or a case is directly presented to the grand jury. Cases that come from the district court are either bound over to the grand jury following a preliminary hearing before the district judge or the preliminary hearing can be waived by the defendant and the case can be submitted to the grand jury following that waiver. Cases that are directly presented are first screened by my office in order for me to evaluate the propriety of the case; what charge(s) will be appropriate for the grand jury to consider; and what witness(es) would need to be subpoenaed to appear before the grand jury. Cases that are presented directly to the grand jury are usually presented in that manner because of the nature of the charges; for example, the urgency of the situation or the necessity of secrecy in the matter for the protection of the victims or witnesses in the matter or the uncertainty of a particular case that is simply presented to a grand jury comprised of citizens to weigh evidence and determine what charges, if any, would be appropriate. Additionally, a grand jury can decide to deliberate a case based on information learned by members of the grand jury during their term of service.

This story was posted on 2021-06-02 21:13:43
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