Frequently Asked Questions

Questions regarding Grand Jury Procedures and Members:

1.

Q. Is a grand jury permitted to remove one or more of its members?

A. No, only the court can remove a sitting grand juror, and it can only be done for cause.

2.

Q. Does a grand jury have to follow the prior grand jury’s procedures manual?

A. No, each grand jury sets its own procedures, but it is more practical to follow a local manual with whatever variations the sitting grand jury deems necessary.

3.

Q. Can a grand juror who wasn’t on the grand jury when evidence was taken during an investigation vote on the final report of that investigation?

A. Penal Code section 908.1 states that a person selected to fill a vacancy on the grand jury “may not vote…on any matter upon which evidence has been taken by the grand jury prior to the person’s selection.” 

4.

Q. Are grand jurors required to file a Form 700 with the county upon becoming grand jurors?

A. Yes, according to the Fair Political Practices Commission.

5.

Q. Can a grand juror serve more than two consecutive terms on a grand jury?

A. Section 901(b) of the Penal Code seems to allow for only two consecutive terms.  However many counties allow this, so we recommend consultation with the grand jury’s legal advisor on this issue.

6

Q. Can a grand juror participate and vote on a final report by conference call or other absentee method?

A. A grand juror may not vote by proxy because he or she must be able to hear and take part in the deliberations leading up to a vote.  However, the grand jury can adopt a rule to allow a juror who for good cause cannot be present during a meeting to “attend” it by conference call, thus allowing the juror to participate in the deliberations and voting.

7.

Q. How many grand jurors may be reappointed to a second term?

A. Penal Code section 901(b) provides that a presiding judge may appoint up to 10 jurors who served on the previous jury.

8.

Q. Can a Superior Court seat a grand jury every other year rather than annually?

A. No; Article 1, Section 23 of the California Constitution requires that at least one grand jury be impaneled each year in each county.  Penal Code section 905 reiterates this requirement.

9

Q. When does a grand jury’s term end?

A. When its successor grand jury is impaneled and sworn unless it has been sooner discharged by the court.  A court, without impaneling a new grand jury, can hold over a grand jury, thus extending its term.

10.

Q. May a sworn-in alternate juror participate in the grand jury proceedings, such as sitting in on interviews, before being impaneled?

A. No; alternates cannot participate in any way in grand jury proceedings.  They are not members of the grand jury until impaneled.  Section 939 of the Penal Code specifically provides that “no person other than grand jurors shall be permitted to be present…”  Not even a judge can be present during deliberations unless asked for advice.  Allowing an alternate to sit in on an interview would also violate Penal Code section 929 regarding disclosure of the identity of persons giving information to the grand jury.

11.

Q. May a sitting grand juror be involved in political campaign activities?

A. While a grand juror does not lose his/her rights as a citizen to engage in the political process, a grand juror may not relate his/her status as a grand juror or otherwise indicate that his/her choice has something to do with his/her grand juror status or obligations.  Many grand jurors just decide not to take stances on political candidates or issues during their term of service to avoid conflicts of interest or potential allegations of bias.

12.

Q. What happens if a grand jury discovers mid-investigation that one of the jurors has a conflict of interest and should never have been involved?

A. The juror with the conflict of interest should be recused from the rest of investigation and the writing of the report and not participate in any deliberations or vote on the matter.

13.

Q. Can a current or former employee of a local governmental agency be on a grand jury?

A. Yes, but if employed within three years, the juror must report that employment to the presiding judge and the foreperson and recuse him/herself from any investigation or report on such agency. See Penal Code section 916.2.

14.

Q. Can a foreperson bar a disruptive juror from attending meetings?

A. No; if the foreperson cannot end this behavior, he/she can only ask the supervising judge to remove the disruptive juror.  Only the court has this removal authority.

15.

Q. Can members of a grand jury be excluded from meetings of a committee of which they are not members?

A. There is no authority in the Penal code for limiting a grand juror’s participation based on committee assignment, except where the juror must recuse due to a real or perceived conflict of interest.

16.

Q. Is there a statutory requirement that grand juries keep or store its records in any particular location or for any particular length of time?

A. No; there is no such requirement.  A grand jury should adopt its own rules of procedure with assistance of counsel regarding this matter pursuant to Penal Code section 916.  Your legal advisor should advise the grand jury how long to retain its records and documents in case they are needed by the current grand jury or for possible litigation.

17.

Q. May grand juries use email amongst its members and still maintain confidentiality?

A. It is up to each grand jury to decide this and document the practice in its Rules of Procedure.  By keeping any confidential material in password-protected attachments and not in the body of the email message, adequate protection of confidentiality can be maintained. The assistance of the county Information Technology experts should be sought.

Questions regarding Grand Jury Investigations:

18

Q. Can a grand jury investigate a complaint regarding a criminal matter (even where an appeal is being processed)?

A. Yes, a grand jury does have this power, but we recommend that the grand jury consult with its legal advisor before starting the investigation.

19.

Q. Can a grand jury use evidence gathered by its predecessor in its investigation and report?

A. While the current grand jury can request and review records of a previous grand jury, it cannot rely on this material without its own verification of this evidence in its own investigation.  See Penal Code section 939.9.

20.

Q. Can a grand jury (or jurors) discuss its investigation with a prior grand jury (or jurors) in confidence?

A. Sections 924 through 924.3 of the Penal Code provide no exception for talking in confidence.  A grand jury must maintain confidentiality of its proceedings and votes.

21.

Q. Is a grand jury permitted to investigate charter schools?

A. Yes, on the same subjects as non-charter schools, i.e., administration, security and procedures, but not curriculum, policy or personnel.

22.

Q. Can a local governmental agency refuse to produce records requested by a grand jury?

A. No, with those few exception where the confidentiality requirements of such records (e.g., juvenile court records) may outweigh the grand jury’s investigative function.  See City of Woodlake v. The Tulare County Grand Jury (197 Cal. App. 4th 1293 (2011); see also “Don’t Take ‘No’ for an Answer in Pursuit of Agency Records”, Vol.12, No.5, CGJA Grand Jurors’ Journal, October 2011.

23.

Q. Does the grand jury have authority to review and investigate complaints of prisoners which arise from a prison or jail within the county?

A. Yes, if the complaint involves the condition or management of the prison or jail.

24.

Q. What should a grand jury do if it has a reasonable basis to believe its investigation has uncovered criminal activity?

A. Immediately contact your District Attorney.  No report should be issued until after the matter is discussed with your legal advisor.

25.

Q. Is a grand jury permitted to investigate a nonprofit organization established by, or operated on behalf of, a public entity?

A. Yes; but not otherwise.  See Penal Code section 933.6.  If a local governmental agency is providing funding or grants to a non-profit not established by it, or operated on its behalf, a grand jury can only investigate whether the agency is getting what it expected from the funding but may not conduct a general investigation into the operation and finances of the nonprofit.

26

Q. Is there any required number or type of agencies a grand jury must investigate?

A. Yes; a grand jury must investigate at least one county agency, and additionally inquire into the prisons/jails in the County and into the willful or corrupt misconduct of a public officer.

27.

Q. Is it proper for a grand jury to respond to a complaint by stating whether or not it will investigate the complaint?

A. No, this would clearly violate the confidentiality requirements. However, a grand jury may adopt a procedural rule that it will notify individual complainants on a case by case basis whether the grand jury has jurisdiction to investigate such complaint.

28.

Q. Can the grand jury investigate and report on a topic that is the subject of a pending civil lawsuit?

A. Yes, but the jury should avoid any comment about the conduct of the lawsuit itself because the courts and judges are state agencies and officials, and are outside the scope of the grand jury’s jurisdiction.

29.

Q. Can the grand jury investigate allegations of police misconduct, and in connection with the investigation, review confidential police personnel records?

A. A grand jury may investigate alleged police misconduct and may examine peace officer personnel records, including citizens’ complaints, without a subpoena or court order. Penal Code section 832.7.

30.

Q. Are we required to launch an investigation on every complaint we receive?

A. No. The grand jury has complete discretion in deciding which, if any, citizen complaints to investigate.

31.

Q. Is there a "statute of limitations" that relates to grand jury investigations?

A. No. The law does not prohibit the grand jury from investigating events that happened in the past. We recommend, however, that the jury ordinarily focus its watchdog investigations on current or recent events or practices, since the goal of the watchdog function is to improve the operations of local government. In contrast to watchdog investigations, there is a six-year statute of limitations for bringing an accusation to remove a person from a public office.

32.

Q. Can a local official require that a grand jury submit its interview questions to the witness in advance?

A. No; submitting questions in advance would improperly reveal the nature, scope and/or direction of the grand jury’s investigation and would violate the grand jury’s confidentiality obligation.  See also Penal Code section 924.1

33.

Q. Can a grand jury be compelled to use an intermediary to set up interviews?

A. No; section 929 of the Penal Code prevents disclosure of the identity of any person giving information to the grand jury.  Therefore, the grand jury should not disclose to anyone whom it is calling as a witness.

34.

Q. Is it a violation of grand jury confidentiality obligations to submit prepared interview questions in advance to a department head or other interviewee?

A. Yes, if the questions reveal the nature, scope or direction of the grand jury investigation. Questions asking for statistical-type information can safely be submitted to an agency in advance.

35.

Q. May a witness be represented by counsel while his/her testimony is being taken by the grand jury?

A. Yes; but only if the testimony of the witness is being taken under oath. See Penal Code section 939.22.

36.

Q. Must a witness testifying before a grand jury be put under oath?

A. No; this is entirely within the grand jury’s discretion.

37.

Q. What's the difference between an oath and an admonition?

A. An admonishment is a directive to an interviewee that he/she may not reveal questions asked by the jurors, the interviewee’s responses to the questions, or any other matters concerning the investigation that the interviewee learned during his/her interview. An oath is a promise to tell the truth during the interview.

38.

Q. Who can administer an oath or an admonition?

A. Any juror can give the admonition. In contrast, Penal Code section 939.4 provides that “The foreman may administer an oath to any witness appearing before the grand jury.”

39.

Q. Is there anyone the grand jury must interview when conducting an investigation?

A. Penal Code section 933.05 requires the grand jury to “meet with the subject of the investigation regarding the investigation, unless the court, either on its own determination or upon request of the foreperson…determines that such a meeting would be detrimental.” While only a “meeting” is required (unless excused by the court) we recommend that the jury use this opportunity to interview the subject in order to develop and/or verify information related to the investigation.

40.

Q. Can we interview private individuals?

A. Yes. There is nothing in the Penal Code that would prohibit a grand jury from interviewing private persons who have information about the topic under investigation.

41.

Q. What can we do if a proposed interviewee refuses to attend the interview?

A. A judge, the DA or the DA’s investigator may issue a subpoena on the grand jury’s behalf, to require a person to attend an interview related to a pending investigation. Penal Code section 939.2.

42.

Q. Can we record an interview? Can the interviewee?

A. The grand jury can record an interview, but only with the consent of the interviewee. However, the jury should first ask itself whether recording would be a good idea. Recording could inhibit the sharing of information, since some people clam up in the presence of a recording device. An interviewee cannot record the interview; doing so would violate grand jury confidentiality.

43.

Q. Do we always have to interview three people to verify each fact in our report?

A. No. We recommend that as a general rule, the grand jury triangulate each fact, that is, make sure each fact is supported by three sources. The sources can be any combination of interviews, records or observations. However, highly reliable government records need not be confirmed. For example, the grand jury would not need to confirm official federal census information.

Questions regarding Grand Jury Reports:

44.

Q. Does the grand jury have to submit a final report on its county’s prisons/jails?

A. No, a grand jury is only required to inquire into them but is not required to submit a final report.

45.

Q. Are members of a grand jury permitted to file a minority report? 

A. No, the grand jury can only act through a super-majority.  Minority reports are not permitted, and the Court will refuse to allow them to be released.

46.

Q. Does Penal Code section 933(c) authorize a grand jury to require an appointed department head, e.g., a police chief, to respond to grand jury findings and recommendations?

A. No; section 933(c) requires that governing bodies must respond to findings and recommendations pertaining to matters under their control within 90 days, and every elected officer or agency head to comment within 60 days.  “Elected” is the operative word.  The grand jury may, however, request a response from an appointed department head.

47.

Q. Can a grand jury publish evidentiary material in its final report?

A. Yes; but only with approval of the presiding or supervising judge.  See Penal Code section 929.  But even with such approval a grand jury cannot disclose any witnesses’ names or facts which would identify such people.  In approving a final report for releases to the public, judges will generally approve including good data supporting the findings and recommendations so long as the grand jury’s sources are not revealed.

48.

Q. Is there a “drop dead” date by which a final report must be published?

A. Yes, the date is the end of the grand jury’s term.  There is no grace period.  Penal Code section 933(a) provides:  “Final reports on any appropriate subject may be submitted to the presiding judge of the superior court at any time during the term of service of a grand jury…”  A grand jury has no power to issue reports after its term ends.

49.

Q. Can a grand jury change its report before it is publicly distributed?

A. Yes, the requirement that the final report be given to the department head at least two business days before it is made public is in part to give the department head an opportunity to point out something in the report the grand jury should change.

50.

Q. Do we have to show our draft reports to our legal advisor?

A. No. However, we recommend that you show a draft of each report to your advisor (unless he or she is disqualified, due to a conflict of interest) because your counsel can verify the report’s references to the law, help the jury avoid claims of defamation, and point out other possible problems with the report.

51.

Q. Can we ask persons who are not local officials to respond to a grand jury report?

A. There is no authority for a grand jury to direct or request a private person to respond to a grand jury report.

52.

Q. What should we do if a board or official refuses to follow the recommendations in our report (or a report issued by last year's grand jury)?

A. The grand jury has no enforcement powers and cannot make a local official or government comply with its recommendations. However, if the problem continues to exist, a later grand jury can conduct a new investigation on that topic and issue its own report, or if appropriate, initiate an accusation proceeding or refer the issue to the DA for consideration of a criminal prosecution. Note that each jury can issue only one report on a particular topic (a grand jury has no authority to issue an “interim report”; each report is a final report).

53.

Q. Must grand juries evaluate responses to the previous jury’s reports?

A. There is no legal requirement to do so, but CGJA strongly recommends that juries do in order to maintain public pressure on government entities to treat grand jury reports seriously.