SPECIAL GRAND JURIES IN VIRGINIA

Special grand juries have substantial power to conduct an investigation and limited power to return a “true bill” of indictment.  Most grand juries are not well informed of their power and in fact may be misinformed.  The state provides a handbook for Virginia Grand Jurors which provides some useful information for Grand Jurors, but fails to provide to them the actual legislation authorizing their actions.  The legislative branch of the government has empowered special grand jurors by legislation found in Article 3 of Chapter 13 of Title 19.2 of the Virginia Code, sections 19.2-206-19.2-215. There simply is not a whole lot of law in Virginia by which to guide a special grand jury.

As the Court of Appeal stated in Vihko v. Commonwealth, 10 Va. App. 498, 501 (1990), “By statute and established practice, grand juries are endowed with broad powers of inquisition and examination and are accorded wide discretion and relative autonomy in performing these duties. See Code §§ 19.2-191 — 19.2-215; Blair v. United States, 250 U.S. 273, 282 (1919). The regular grand jury’s function, as both an investigating and indicting body, is augmented by the special investigating grand jury in those cases where more extensive, exhaustive, or specialized investigation is required. While the Commonwealth typically brings before the regular grand jury the evidence considered by the special grand jury, the sole function of the special grand jury is to gather evidence and synthesize its findings into a report, which may be presented to the regular grand jury. Thus, the special grand jury is invested by statute with much broader investigative powers….. See Code § 19.2-206 – 19.2-215.”

When a special grand jury is convened upon the request of the attorney for the Commonwealth, and when a majority of not less than five members concur, the special grand jury may return a “true bill” of indictment, upon the testimony of, or evidence provided , by any witness who was called by the grand jury, upon evidence presented or sent to it.

Authority:

§ 19.2-213.  Report by special grand jury; return of true bill

At the conclusion of its investigation and deliberation, a special grand jury impaneled by the court on its own motion or on recommendation of a regular grand jury shall file a report of its findings with the court, including therein any recommendations that it may deem appropriate, after which it shall be discharged. Such report shall be sealed and not open to public inspection, other than by order of the court.

A majority, but not less than five, of the members of a special grand jury convened upon request of the attorney for the Commonwealth must concur in order to return a “true bill” of indictment. A “true bill” may be returned upon the testimony of, or evidence produced by, any witness who was called by the grand jury, upon evidence presented or sent to it.

How Special Grand Juries are Impaneled

The circuit court must empanel a special grand jury upon the recommendation of a majority of the members of a regular grand jury if the court finds probable cause to believe that a crime has been committed which should be investigated by a special grand jury impaneled to “to investigate and report on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency or official thereof.”

If the circuit court fails to do so, a petition for mandamus should be filed.

The circuit court has the discretion, that is it may but is not required to empanel a special grand jury (1) at any time upon its own motion, (ii) upon recommendation of a minority of the members of a regular grand jury that a special grand jury be impanelled, to investigate and report on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency or official thereof, or (iii) upon request of the attorney for the Commonwealth to investigate and report on any condition that involves or tends to promote criminal activity and consider bills of indictment to determine whether there is sufficient probable cause to return each such indictment as a “true bill.”

Authority:

§ 19.2-206.  When impanelled

A. Special grand juries may be impanelled by a circuit court (i) at any time upon its own motion, (ii) upon recommendation of a minority of the members of a regular grand jury that a special grand jury be impanelled, to perform the functions provided for in subdivision (2) of § 19.2-191, or (iii) upon request of the attorney for the Commonwealth to investigate and report on any condition that involves or tends to promote criminal activity and consider bills of indictment to determine whether there is sufficient probable cause to return each such indictment as a “true bill.”

B. A special grand jury shall be impanelled by a circuit court upon the recommendation of a majority of the members of a regular grand jury if the court finds probable cause to believe that a crime has been committed which should be investigated by a special grand jury impanelled to perform the functions provided for in subdivision (2) of § 19.2-191.

§ 19.2-191.  Functions of a grand jury

The functions of a grand jury are twofold:

(1) To consider bills of indictment prepared by the attorney for the Commonwealth and to determine whether as to each such bill there is sufficient probable cause to return such indictment “a true bill.”

(2) To investigate and report on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency or official thereof. These functions may be exercised by either a special grand jury or a regular grand jury as hereinafter provided.

The court cannot shut the special grand jury down within six months.

The court cannot simply shut the special grand jury down within six months after it has been impanelled.  The legislature specifically limits their discharge to the conclusion of its investigation, deliberation and report.  At the conclusion of its investigation and deliberation, a special grand jury impanelled by the court on its own motion or on recommendation of a regular grand jury shall file a report of its findings with the court, including therein any recommendations that it may deem appropriate, after which it shall be discharged.

Authority:

§ 19.2-213.  Report by special grand jury; return of true bill

At the conclusion of its investigation and deliberation, a special grand jury impanelled by the court on its own motion or on recommendation of a regular grand jury shall file a report of its findings with the court, including therein any recommendations that it may deem appropriate, after which it shall be discharged. Such report shall be sealed and not open to public inspection, other than by order of the court.

A majority, but not less than five, of the members of a special grand jury convened upon request of the attorney for the Commonwealth must concur in order to return a “true bill” of indictment. A “true bill” may be returned upon the testimony of, or evidence produced by, any witness who was called by the grand jury, upon evidence presented or sent to it.

§ 19.2-213.1.  Discharge of special grand jury

If a special grand jury has not filed a report pursuant to § 19.2-213 within six months of its impanelling, the circuit court appointing it shall discharge it; provided, however, if such court, in its discretion, determines that the special grand jury is making progress in its investigation, the court may direct that special grand jury to continue its investigation pursuant to this article.

Special Counsel and Specialized Personnel to Assist the Special Grand Jury

 

The legislature authorizes the court to designate special counsel to assist it in its work upon the request of the special grand jury and also appropriate specialized personnel for investigative purposes.

The Court of Appeal stated in Vihko v. Commonwealth, 10 Va. App. 498, 502 (1990), stated, “The Code provides for the appointment of special Commonwealth’s attorney(s) and specialized investigatory personnel to assist the special grand jury in its investigatory and reporting work. Code § 19.2-211. These special investigatory personnel may, when requested, conduct an investigation, interrogate witnesses, testify before the grand jury, render investigatory results, and otherwise participate in the investigation as the grand jury deems necessary. These functions fulfill the purpose for which they are authorized and appointed, and the propriety of the special grand jury’s utilization of forensic experts is beyond question. Code § 19.2-211; see Lujan v. State, 85 Nev. 16, 18, 449 P.2d 244, 245 (1969); see also Annot., Presence of Unauthorized Persons During State Grand Jury Proceedings as Affecting Indictment, 23 A.L.R. 4th 397 (1983). The role of special personnel is not limited to educating the grand jurors in the areas of expertise in order that they may successfully conduct their own investigation and examination, and the role of special personnel is not limited simply to providing documentary evidence and reports. They may, and most often do, conduct the investigation. The limitation which the statute places on the appointed personnel is that they may not participate in the grand jury’s deliberations. Code § 19.2-210.”

The Court of Appeals went on to state, “So long as the grand jury arrived at its conclusions through untrammeled deliberations, it may then direct special counsel to draft its report. … The delegation of clerical and preparatory tasks by the grand jury is proper. The report drafted by counsel becomes the report of the grand jury upon their adoption of it.”

Authority:

§ 19.2-211.  Provision for special counsel and other personnel

At the request of the special grand jury, the court may designate special counsel to assist it in its work, and may also provide it with appropriate specialized personnel for investigative purposes.

The Special Grand Jury is Not Controlled by the Commonwealth Attorney

The Special Grand Jury is not to be controlled by the Commonwealth Attorney.  In fact, when the special grand jury is impanelled upon the motion of the court or recommendation of a regular grand jury, he may be present during the investigatory state only when his presence is requested by the special grand jury and may interrogate witnesses provided the special grand jury requests or consents to such interrogation.  The Commonwealth Attorney shall not be present while the Special Grand Jury discusses, evaluates or considers the testimony of a witness or is deliberating in order to reach decisions or prepare its report, unless his legal advice is requested by the special grand jury.

Authority:

§ 19.2-210.  Presence of attorney for the Commonwealth

The attorney for the Commonwealth shall not be present at any time while the special grand jury is in session except that during the investigatory stage of its proceedings he may be present. When the special grand jury is impanelled upon motion of the court or recommendation of a regular grand jury, he may be present during the investigatory stage only when his presence is requested by the special grand jury and may interrogate witnesses provided the special grand jury requests or consents to such interrogation. When the special grand jury was impanelled upon his request, he may examine any witness called to testify or produce evidence, but his examination of a witness shall in no way affect the right of any grand juror to examine the witness.

The attorney for the Commonwealth shall not be present during or after the investigative stage of the proceedings at any time while the special grand jury is discussing, evaluating or considering the testimony of a witness or is deliberating in order to reach decisions or prepare its report, except that he may be present when his legal advice is requested by the special grand jury.

The power to issue subpoenas

Subpoena from the special grand jury, are not subpoena from the Circuit Court, but are those of the special grand jury and thus should not be styled

Virginia:

In the Circuit Court of the City/County of _______________

Citizens of _________________,

Petitioners,

v.                                                            Case No. …..

Citizens of _________________,

Defendants

Instead the subpoena are being issued pursuant to § 19.2-208 and should be styled in the following fashion:

COMMONWEALTH OF VIRGINIA:

BEFORE THE SPECIAL GRAND JURY OF THE CITY/COUNTY OF _________________________________

Empanelled on _______[date]

Subpoena

            The special grand jury may want to recite or reference § 19.2-208 in the subpoena for its authority to issue the subpoena and to give the recipient notice of the manner in which they might object to either testimony or production of documents.

Additionally, the subpoena should probably be executed by the foreman of the special grand jury.

Authority:

§ 19.2-208.  Subpoena power of special grand jury

The special grand jury may subpoena persons to appear before it to testify and to produce specified records, papers, and documents or other tangible things, but before any witness testifies, he shall be warned by the foreman that he need not answer any questions or produce any evidence that would tend to incriminate him, and that the witness may have counsel of his own procurement present when he appears to testify, and at the same time the foreman also shall warn each witness that he may later be called upon to testify in any case that might grow out of the investigation and report of the special grand jury.

A witness who has been called to testify or produce specified records, papers and documents or other tangible things before a grand jury requested by the attorney for the Commonwealth, and who refuses to testify or produce specified records, papers and documents or other tangible things by expressly invoking his right not to incriminate himself, may be compelled to testify or produce specified records, papers and documents or other tangible things by the presiding judge. Such witness who refuses to testify or produce specified records, papers and documents or other tangible things after being ordered to do so by the presiding judge may be held in contempt and may be incarcerated until the contempt is purged by compliance with the order or the grand jury is discharged. When a witness is compelled to testify or produce specified records, papers and documents or other tangible things after expressly invoking his right not to incriminate himself, and the presiding judge has determined that the assertion of the right is bona fide, the compelled testimony, or any information directly or indirectly derived from such testimony or other information, shall not be used against the witness in any criminal proceeding except a prosecution for perjury.

Notwithstanding the provisions of this section, all provisions of this Code relative to immunity granted to witnesses who testify before a grand jury shall remain applicable.

The foreman shall administer the oath prescribed by law for witnesses, and any member of the special grand jury may examine a witness.

Court Reporter, Notes, Tapes and Transcripts

The state must provide a court reporter to record and transcribe all oral testimony taken before a special grand jury, whose notes, tapes and transcriptions are for the sole use of the special grand jury, the contents of which are not to be divulged except as authorized by statute.  If any witness is subsequently prosecuted for perjury, upon motion of either the Commonwealth Attorney or the defendant, both shall have access to the testimony given by the defendant when testifying before the special grand jury.

Additionally, the evidence may be reviewed by the Commonwealth or defendant in connection with a criminal prosecution on conditions described by statute.

Authority:

§ 19.2-212.  Provision for court reporter; use and disposition of notes, tapes and transcriptions

A. A court reporter shall be provided for a special grand jury to record, manually or electronically, and transcribe all oral testimony taken before a special grand jury, but such reporter shall not be present during any stage of its deliberations. The notes, tapes and transcriptions of the reporter are for the sole use of the special grand jury, and the contents thereof shall not be divulged by anyone except as hereinafter provided. After the special grand jury has completed its use of the notes, tapes and transcriptions, the foreman shall cause them to be sealed, the container dated, and delivered to the court.

The court shall cause the sealed container to be kept safely. If any witness testifying before the special grand jury is prosecuted subsequently for perjury, the court, on motion of either the attorney for the Commonwealth or the defendant, shall permit them both to have access to the testimony given by the defendant when a witness before the special grand jury, and the testimony shall be admissible in the perjury case.

If no prosecution for perjury is instituted within three years from the date of the report of the special grand jury, the court shall cause the sealed container to be destroyed; however, on motion of the attorney for the Commonwealth, the court may extend the time period for destruction if the grand jury was impanelled at the request of the attorney for the Commonwealth.

B. Upon motion to the presiding judge, the attorney for the Commonwealth shall be permitted to review any evidence that was presented to the special grand jury, and shall be permitted to make notes and to duplicate portions of the evidence as he deems necessary for use in a criminal investigation or proceeding. The attorney for the Commonwealth shall maintain the secrecy of all information obtained from a review or duplication of the evidence presented to the special grand jury. Upon motion to the presiding judge by a person indicted after a special grand jury investigation, similar permission to review, note or duplicate evidence shall be extended if it appears that the permission is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him, or to adequately prepare his defense.

Other relevant statutes:

§ 19.2-207.  Composition of a special grand jury

Special grand juries shall consist of not less than seven and not more than 11 members, and shall be summoned from a list prepared by the court. Members of a special grand jury shall possess the same qualifications as those prescribed for members of a regular grand jury, including indifferent in the cause to be conducted by the special grand jury. In order to determine a potential juror’s qualifications, the presiding judge shall examine each juror individually and under oath. He shall then certify in writing and not under seal that he has examined the members of the special grand jury and has found that they are qualified and are impartial and disinterested in the subject matter and outcome of the investigation. The examination shall be recorded by a court reporter and conducted pursuant to the requirements of secrecy provided for in this chapter. The court shall appoint one of the members as foreman.

§ 19.2-209.  Presence of counsel for a witness

Any witness appearing before a special grand jury shall have the right to have counsel of his own procurement present when he testifies. Such counsel shall have the right to consult with and advise the witness during his examination, but shall not have the right to conduct an examination of his own of the witness.

§ 19.2-213.1.  Discharge of special grand jury

If a special grand jury has not filed a report pursuant to § 19.2-213 within six months of its impanelling, the circuit court appointing it shall discharge it; provided, however, if such court, in its discretion, determines that the special grand jury is making progress in its investigation, the court may direct that special grand jury to continue its investigation pursuant to this article.

§ 19.2-214.  Prosecutions resulting from report

Any bill of indictment for alleged criminal offenses, which may follow as a result of the report of the special grand jury, shall be prepared by the attorney for the Commonwealth for presentation to a regular grand jury.

§ 19.2-215.  Costs of special grand jury

All costs incurred for services provided by the court for a special grand jury shall be paid by the Commonwealth.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

Contact:

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000
(804) 783-2105 fax