Frequently Asked Questions

The information provided in these answers is based solely on CGJA’s familiarity with grand jury law and practices in California.  It is not intended to be legal advice, and should not be relied upon as such.  Grand jurors should consult with their authorized legal counsel whenever legal issues arise.

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         Grand Jury Procedures and Members

         Grand Jury Investigations

         Grand Jury Interviews

         Grand Jury Reports

  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 must adopts its own procedures.  But rather than draft a new set of rules, it is more practical to adopt and follow a local manual with whatever variations the sitting grand jury deems necessary.
   
4.
 
Q. Are grand jurors required to file a Form 700 (a Statement of Economic Interests) 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, some courts allow a juror to sit for more than two years, so we recommend consultation with the court or grand jury’s legal advisor on this issue.
   
6
 
Q. Can a grand juror vote on a final report by proxy, 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.  The Superior Court can extend the grand jury’s term by not discharging it or impaneling a new grand jury.
   
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. Allowing an alternate to sit in on an interview would violate Penal Code section 929 regarding disclosure of the identity of persons giving information to the grand jury and section 924.1, which prohibits the disclosure of evidence.
   
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 should not indicate his/her status as a grand juror when making political statements or imply that his/her position has something to do with his/her grand juror status or information gained during confidential grand jury proceedings.  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. In addition, the jury should consult with its legal advisor to determine if the investigation is so tainted by the appearance of impropriety that it should be passed forward to the succeeding grand jury.
   
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 that 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 conflict of interest.
   
16. Q. Is there a statutory requirement that grand juries keep or store their records in any particular location or for any particular length of time?
A. Penal Code section 933 requires the grand jury to maintain a copy of each report and all the responses to it for a minimum of five years. Exactly where these documents must be stored is not specified, but we recommend that they be kept in a place readily accessible to the jury for research purposes. The reports and responses should also be posted on the grand jury’s website. The code does not require the retention of any other records, but we suggest that any records that might prove valuable to future grand juries be passed to the succeeding jury as allowed by Penal Code §924.4. We also recommend that the grand jury include a records retention policy in its Rules of Procedure, which each jury is required to adopt per Penal Code section 916.
   
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 may be sought if necessary.
   
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  Questions Regarding Grand Jury Investigations:
18
 
Q. Can a grand jury investigate a complaint regarding a criminal matter (either before or during the trial, or while an appeal is pending)?
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. The grand jury must take care to avoid interfering with a criminal prosecution or the appearance that it is investigating the court (which is a state agency, outside the grand jury’s jurisdiction).
   
19.
 
Q. Can a grand jury use evidence gathered by its predecessor in its investigation and report?
A. While the current grand jury can review any files and records a previous grand jury passed forward to it, the current jury cannot rely on that material without its own verification of the evidence in its own investigation.  See Penal Code section 939.9.
   
20.
 
Q. Can a grand jury (or jurors) discuss an ongoing investigation with prior grand jurors in confidence?
A. No. Sections 924 through 924.3 of the Penal Code provide no exception for talking in confidence to former grand jurors.  A grand jury must maintain the confidentiality of its proceedings, deliberations, 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. Is a supermajority vote needed before a committee of the grand jury conducts an interview or requests that an entity provide copies of specific records?
A. Yes, unless the entire jury, by a supermajority vote, has already authorized a full investigation.  Penal Code section 916 provides that  “all public actions” of the grand jury require the concurrence of a supermajority of the panel. We believe “public action” means any action that would reveal to a member of the public confidential information, such as the existence or nature of an investigation. Actions such as an interview or a request for documents would reveal such information; therefore they require supermajority authorization.  The supermajority can authorize a full investigation, including any interviews or document requests the committee might decide are needed, or limit its authorization to specific interviews or requests and decide later whether to allow a full investigation.
   
23.
 
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 or psychiatric 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.
   
24.
 
Q. Does the grand jury have the 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.
   
25.
 
Q. What should a grand jury do if it has a reasonable basis to believe its investigation has uncovered criminal activity?
A. The grand jury should immediately contact the District Attorney for assistance. No report should be issued until after the matter is discussed with the grand jury’s legal advisor.
   
26.
 
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 neither established by it, nor operated on its behalf, a grand jury can only investigate whether the governmental agency is getting what it expected from the funding but may not conduct a general investigation into the operation and finances of the nonprofit.
   
27
 
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 or function, and additionally inquire into the prisons/jails in the county and into the willful or corrupt misconduct of a public officer.
   
28.
 
Q. Is it proper for a grand jury to respond to a complaint by stating whether it has chosen to 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 when the grand jury does not have the jurisdiction to investigate the complaint (for example, if it relates to a federal agency or a private individual).
   
29.
 
Q. Can the grand jury investigate and report on a topic that is the subject of a pending civil lawsuit?
A. The grand jury should consult with its legal advisor before starting any investigation into a matter that is in litigation. The Penal Code does not prohibit a grand jury from investigating a matter that is being litigated. However, the jury might want to refrain from doing so in order to avoid confusing witnesses, interfering with the attorney/client relationship, or appearing that the jury is “taking sides” in the dispute. If the jury writes a report, it 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.
   
30.
 
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.
   
31.
 
Q. Is a grand jury required to launch an investigation on every complaint it receives?
A. No. The grand jury has complete discretion in deciding which, if any, citizen complaints to investigate.
   
32.
 
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 an explicit statute of limitations – six years - for bringing an accusation to remove a person from a public office.
   
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  Question Regarding Grand Jury Interviews
33.
 
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.
   
34.
 
Q. Can a grand jury go through an intermediary, such as an official’s secretary, to set up interviews?
A. There is nothing in state law that expressly prohibits the grand jury from scheduling an interview through an official’s or board’s secretary, as long as the nature of the investigation is not revealed to that person. However, in order to limit speculation about the investigation, we recommend that the grand jury attempt to schedule interviews directly with the interviewee. If the juror scheduling the interview is required to speak to the official’s subordinate, he or she should merely say that the grand jury would like to “speak with” the official, and avoid mention of an interview. When the official calls back, the juror should then schedule the interview.
   
35.
 
Q. May an interviewee be represented by counsel while is being interviewed by the grand jury?
A. Yes; but only if the interviewee is placed under oath. See Penal Code section 939.22. Most grand juries do not routinely place interviewees under oath.
   
36.
 
Q. Must a witness testifying before a grand jury be put under oath?
A. No, but Penal Code section 939.22 provides that if an oath is administered, the person being interviewed may have his or her counsel present. For this reason, many grand juries do not place interviewees under oath.
   
37.
 
Q. What is 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 by an interviewee 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(e) requires the grand jury to “meet with the subject of the investigation… unless the court… determines that such a meeting would be detrimental.” We believe that “the subject of the investigation” means the department head or other official or board in charge of the matter under investigation. While only a “meeting” is required, the grand jury should use this opportunity to interview the official to develop and/or verify information related to the investigation.  We also recommend that the grand jury routinely conduct an exit interview with the subject of the investigation to ensure the accuracy of its report, as allowed by section 933.05(d).
   
40.
 
Q. Can the grand jury 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 the grand jury 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 the grand jury record an interview? Can the interviewee?
A. The grand jury can record an interview, but only with the consent of the interviewee. However, before deciding to record an interview, the jury should ask itself whether that would be a good idea. Recording could inhibit the sharing of information, since some people clam up in the presence of a recording device. Note that an interviewee cannot record the interview; doing so would violate grand jury confidentiality.
   
43.
 
Q. Does the grand jury always have to interview three people to verify each fact in its 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, research, 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.
   
44. Q. How can the grand jury protect a whistleblower?
A. A whistleblower is a public employee or contractor who provides information to the grand jury that might put his or her job at risk. In order to encourage candor from these sources, the grand jury must hide their identities to prevent possible retaliation by the public entity. The names or facts that could lead to the identity of a source of information must never appear in a grand jury report. The jury should also be sure to interview enough employees or contractors holding similar jobs so that the entity cannot determine who provided the information in question.
   
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  Questions Regarding Grand Jury Reports:
45.
 
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.
   
46.
 
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.
   
47.
 
Q. Does Penal Code section 933(c) authorize a grand jury to require an appointed department head, such as a police chief, to respond to grand jury findings and recommendations?
A. No. Section 933(c) requires that governing bodies respond to findings and recommendations pertaining to matters under their control within 90 days, and that elected officers or agency heads respond within 60 days.  “Elected” is the operative word.  The grand jury may, however, request a response from an appointed department head.
   
48.
 
Q. Can a grand jury publish evidentiary material in its final report?
A. A grand jury report can discuss or have attached to it evidentiary material (such as transcripts of interviews, or other unverified evidence) but only with the explicit approval of the presiding or supervising judge.  See Penal Code section 929.  But even with that approval, the evidentiary material cannot reveal the name of a witness or facts that would identify any witness.
   
49.
 
Q. Is there a “drop dead” date by which a grand jury must submit its final reports to the court?
A. Yes. The date is the end of the grand jury’s term; the term ends when the jury is discharged by the court.  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 submit reports after its term ends.
   
50.
 
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 board or department head at least two business days before it is made public is in part to give them an opportunity to point out something in the report the grand jury should change.
   
51.
 
Q. Must the grand jury show its draft reports to its legal advisor?
A. No. However, we strongly recommend that the grand jury show a draft of each report to its advisor (unless he or she is disqualified due to a conflict of interest) because 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.
   
52.
 
Q. Can the grand jury ask persons who are not local public 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.
   
53.
 
Q. What may the grand jury do if a board or official refuses to follow the recommendations in its 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. 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).
   
54.
 
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 evaluate responses and follow up to see if the officials and entities have done what they represented in their responses they would do. This process, if conducted routinely year to year, will help maintain public pressure on government entities to treat grand jury reports seriously.
   
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