The Grand Jury
By Gregg D. Thomas and Carol Jean LoCicero
Both the Florida and federal judicial systems employ grand juries. Because those systems are similar, the Florida grand jury system will be discussed first. At the conclusion of this chapter, the Florida statewide grand jury and the differences present in the federal grand jury system will be noted.
Traditionally, grand juries served as a shield between unjust prosecution by the state and the individual. Grand juries serve dual functions. The grand jury’s primary role is to determine whether sufficient evidence exists to justify indicting an accused individual. 1 To make such determinations, a grand jury also serves as an investigating body with subpoena powers. 2 In Florida, a grand jury indictment is required only to try a person for a capital offense; i.e., one where the death penalty may be given. 3 Otherwise, the state attorney has concurrent authority to file a formal accusation of the commission of a crime (an ‘information’). 4 The information is used routinely to charge individuals in Florida. In addition to capital cases, grand juries often are utilized for controversial cases such as those involving alleged wrongdoing by public officials.
A grand jury must consist of between 15 and 21 persons. 5 Grand jurors are appointed for one term of court, normally five to six months of intermittent service. 6 The concurrence of 12 grand jurors is necessary to indict an individual. 7 Whether or not an indictment is returned, the grand jury may issue presentments or reports recording their findings. 8 In Florida, grand juries may investigate and report on official misconduct and matters generally concerning the public welfare – even if no criminal activity is suspected.
The grand jury must be distinguished from the petit or trial jury. The petit or trial jury normally consists of six members 9 (12 in capital cases and in cases of land condemnation). 10 The trial jury is the body which determines the ultimate guilt or innocence of the accused following a trial. Unlike the trial jury, however, the grand jury simply makes a predicate determination of whether there is probable cause that a crime has been committed and that the person accused committed the crime. In contrast to the trial jury’s strict standard of guilt beyond a reasonable doubt, 11 this probable cause standard has been defined as ‘a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in the belief that the named suspect is guilty of the offense charged.’ 12 In essence, the grand jury merely initiates a criminal prosecution.
In practice, the prosecuting attorney selects those cases he believes warrant prosecution. The prosecutor then determines whether to proceed by indictment or information. If the prosecutor is required to or chooses to seek an indictment, he then presents his case to a grand jury by interrogating the witnesses he has subpoenaed and presenting other evidence relevant to the alleged offense. The grand jurors themselves also may question witnesses and request additional witnesses or evidence. After that evidence is presented to the grand jury, it decides whether there is probable cause to indict the accused. The accused is not given the opportunity to present evidence in his defense or cross-examine witnesses at the grand jury phase. If the accused is subpoenaed to testify before a state grand jury, that testimony cannot be used against him at trial.
Persons appearing under subpoena before a grand jury are absolutely privileged from liability for libel and slander in conjunction with testimony given before the grand jury. 13 Grand jury witnesses, however, are subject to conviction for the crime of perjury. 14
Whether or not an indictment is returned, the grand jury subsequently may issue a report or presentment. That report will contain the grand jury’s findings and may make recommendations. Florida Statutes Section 905.28(1) (2012) provides a mechanism for redacting or suppressing presentments which name unindicted individuals:
A report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.
That provision is intended to prohibit the release of presentments until the expiration of the 15-day period (if no motion to repress is filed) or the resolution of a motion to repress occurs. The Second District Court of Appeal in Tribune v. State (In re Grand Jury Investigation, Spring Term, 1988), 528 So. 2d 51, 53 (Fla. 2d DCA 1988) (hereinafter ‘Afendoulis‘), held that motions to repress or expunge and proceedings concerning such motions are secret.
In essence, the grand jury is the prosecutor’s mechanism. In large part, the prosecutor is the only official present. The presiding judge rarely participates in a grand jury session. In fact, the judge normally appears only to resolve legal issues which arise (for instance, questions concerning witness immunity).
Historically, grand juries proceed in secret. The grand jury session, deliberations, and voting are closed. 15 The courts so jealously guard that veil of secrecy they have closed proceedings merely ancillary to the grand jury session. In Palm Beach Newspapers, Inc. v. Doe, 460 So. 2d 406, 409 (Fla. 4th DCA 1984), the court held that the grand jury statute required closure of ancillary hearings conducted out of the grand jury’s presence, but while the grand jury was in session. As discussed, the court in Afendoulis determined the grand jury statute mandated closure of motions to repress and hearings on the motions. In sum, although most of the interests in grand jury secrecy are protected if the grand jury session itself is closed, the courts have been receptive to arguments which urge that the cloak of secrecy be extended beyond the grand jury session itself. That cloak, however, does not exempt criminal investigative records compiled independent of, and prior to, a grand jury session, although presented to the grand jury, from disclosure under the Florida Public Records Act. 16
The United States Supreme Court has enumerated the policies underlying grand jury secrecy:
- The fear that witnesses will not come forward voluntarily if their identity is not protected;
- The fear that witnesses will be less likely to give full and frank testimony if their identity is known so that they become subject to retribution or inducements;
- The risk that the indicted will flee if indictments are made public prior to arrest;
- The danger that a potential defendant might influence the votes of grand jurors; and
- The protection of the reputation of an individual who is accused but not indicted by the grand jury. 17
Florida Statutes Section 905.24 (2012), codifies those policies and mandates: ‘Grand jury proceedings are secret, and a grand juror or an interpreter appointed pursuant to s. 90.6063(2) shall not disclose the nature or substance of the deliberations or vote of the grand jury.’ Although there are no criminal sanctions which apply to a violation of that section, the courts routinely rely on that provision to deny access to grand jury-related matters.
In addition, Florida Statutes Section 905.27(2012) prohibits grand jurors, state attorneys and all other court personnel from disclosing to anyone, except under certain narrowly-specified circumstances, the testimony of a witness examined before the grand jury or other evidence received by it. The statute declares it unlawful:
for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, . . . in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding. 18
In effect, the statute attempts to prevent the press and grand jury witnesses from forever publishing truthful information concerning merely the gist of a grand jury witness’ testimony. The United States Supreme Court, however, deemed this statute unconstitutional insofar as it applied to witnesses speaking about the nature of their own grand jury testimony after the investigation has been completed. 19 Florida Statutes Section 905.27 (2012), no longer should impede state grand jury witnesses from discussing with reporters their grand jury testimony, especially once the grand jury proceeding has concluded.
Reporters also are free to observe the coming and going of witnesses into the grand jury room. Normally, the state attorney, who guides, counsels and strongly influences the conduct of the grand jury, announces, in general terms, the subject of the grand jury inquiry. Often leaks occur and the diligent reporter may gather information from sources close to the grand jury, the grand jury’s target and the court’s files themselves.
Of course, there are potential risks involved in publishing grand jury-related information. Privacy rights may be implicated. For example, if a grand jury witness’ testimony containing derogatory or very personal information concerning an unindicted individual is published, the individual may have an action for invasion of privacy or negligent violation of the grand jury statute – especially because the state has declared as a matter of public policy that such information is secret. 20 The United States Supreme Court, in 1988, addressed a case concerning the publication of statutorily confidential rape victim information. 21 The majority held that as long as the information is obtained lawfully and is of public significance, the First Amendment supersedes the statutory limitation. However, the state may be able to proscribe such a publication when its interest is shown to be very compelling and there are no less drastic means of achieving the result. 22
The greatest risk is the probability the reporter will be subpoenaed to reveal the source of a leak and risk contempt should she refuse to divulge the source’s identity. For example, Florida Statutes Section 905.17(3) (2012), prohibits anyone from being present while the grand jurors deliberate and vote. That section also proscribes the release of the notes, records, and transcripts of a grand jury. An intentional violation of those provisions constitutes indirect criminal contempt of court. 23 If information is leaked to the press, the prosecutor or the court might seek to punish the source by contempt.
The Florida Supreme Court has addressed similar situations on two occasions. 24 Both times the court decided that the newsgathering process and the need to protect confidential sources of information outweighed the state’s interest in a possible prosecution. In fact, in Morgan v. State, 337 So. 2d 951, 956 (Fla. 1976), the Florida Supreme Court overturned a contempt citation involving a reporter who refused to divulge the name of the individual who leaked a grand jury presentment in contravention of Florida Statutes Section 905.24.
Florida Statutes Section 905.31 (2012) creates a statewide grand jury. The statewide grand jury is comprised of 18 members, 15 of whom constitute a quorum. 25
The purpose of the statewide grand jury is to enable the state to combat organized criminal activity that involves more than one county. 26 Through the Act, the Legislature sought to improve the evidence-gathering process for crimes which cross county lines. 27 A statewide grand jury, like a county grand jury, may return indictments and issue presentments. 28
The Governor may petition the Florida Supreme Court to impanel a statewide grand jury ‘[w]henever the Governor, for good and sufficient reason, deems it to be in the public interest to impanel a statewide grand jury.’ 29 No comparable mechanism exists in the county grand jury system. The Governor must state the general crimes or wrongs to be investigated and the fact that those activities affect more than one county. 30 The Florida Supreme Court may, in its discretion, impanel a statewide grand jury pursuant to the Governor’s request. 31
Florida Statutes Section 905.395 (2012) prescribes penalties for disclosure, broadcast or publication of the ‘proceedings or identity of persons referred to or being investigated by the statewide grand jury.’ 32 The additional secrecy provisions concerning county grand juries also apply to statewide grand juries. 33
Federal grand juries are organized under the supervision and direction of the chief judge of a federal district court. They are comprised of between 16 and 23 members. 34 The concurrence of 12 members is required to return an indictment. 35
Several differences exist between the federal and Florida state grand jury systems. First, an indictment from a federal grand jury (versus an information) must issue before an individual can be tried for any felony offense arising under federal law. 36 Federal grand juries lack the civil investigative power accorded Florida grand juries except in one narrow area of investigative responsibility granted special federal grand juries.
Special federal grand juries may be impanelled by the chief judges of the various federal districts to investigate criminal activity. 37 The special grand juries are utilized to conduct lengthy and complex investigations. They are authorized to submit reports:
- concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or
- regarding organized crime conditions in the district. 38
The secrecy rules attending a federal grand jury are less stringent than those pertaining to Florida grand juries. As in Florida, no person other than the grand jurors themselves may be privy to the grand jury’s deliberations or the vote of any juror. 39 Jurors, attorneys, and other court personnel attending the grand jury are prohibited from disclosing the testimony and other matters occurring before the grand jury unless directed to make such disclosure by the court in certain limited circumstances. 40 Unlike Florida, federal witnesses, however, are generally free to announce their own testimony and other occurrences in the grand jury room while they were present. 41 A federal prosecutor may reveal internal deliberations within the prosecutor’s office, as long as he or she does not directly reveal grand jury proceedings. 42 In certain limited circumstances, a federal judge may limit the extent of a witness’ freedom to speak regarding grand jury matters. The court has discretion to determine whether or not an indictment shall be kept secret until the defendant is in custody or permitted to post bail. 43
In addition, a court has the discretion to permit or prohibit the disclosure of grand jury materials. 44 In 2004, the United States Court of Appeals for the Eleventh Circuit reversed and vacated an order from the United States District Court for the Middle District of Florida compelling the disclosure of grand jury transcripts in the Aisenberg case. 45 In 1997, the Aisenberg’s child was abducted and to date, remains missing. 46 The Aisenbergs were indicted and charged with making false statements of material facts to law enforcement officials and six counts of making false statements to law enforcement official during the initial missing child report and subsequent investigation. 47 Ultimately, the indictment against the Aisenbergs was dismissed. 48 Consequently, the Aisenbergs moved for an award of attorney’s fees and the disclosure of the grand jury transcripts to support their claims for attorney’s fees. 49
The district court ordered a wholesale disclosure of all of the grand jury transcripts in the Aisenberg case. Under Federal Rule of Criminal Procedure 6(e)(3), a district court has inherent authority to require the disclosure of grand jury material in narrow and exceptional circumstances.50 The Eleventh Circuit reversed and vacated the order and held that the district court abused its discretion by ordering the disclosure of the grand jury transcripts because the Aisenberg case was not an exceptional case and the Aisenberg’s failed to meet the requisite burden to overcome historical and well-settled grand jury secrecy principles. 51 Specifically, the Aisenberg’s did not show a compelling and a particularized need for disclosure, that the need for disclosure was greater that the need for continued secrecy, and that their request was structured to cover only the material needed. 52 As a result, the court ordered the grand jury transcripts to remain sealed.
1 Fla. Stat. 905.16 (2012).
2 See Fla. Stat. 905.185 (2012).
3 Fla. Const. Art. I, Sec. 15(a).
5 Fla. Stat. 905.01(1), Fla. Stat. (2012).
6 See Fla. Stat. 905.095 (2012).
7 Fla. Stat. 905.23 (2012).
8 Fla. Stat. 905.165 (2012).
9 Fla. Const. Art. 1, Sec. 22.
10 See Fla. Stat. 913.10 (2012) and Fla. Stat. 73.071(1) (2012), respectively.
11 15 Fla. Jur. 2d Criminal Law Sec. 1881 (2013).
12 14 Fla. Jur. 2d Criminal Law Sec. 58 (2013).
13 19A Fla. Jur. 2d Defamation & Privacy Sec. 87 (2013).
14 See Fla. Stat. 905.27(1)(b) (2012).
15 Fla. Stat. 905.24 (2012).
16 Tribune v. State (In re Grand Jury Investigation, Spring Term, 1988), 543 So. 2d 757, 759 (Fla. 2d DCA 1989).
17 Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
18 Fla. Stat. 905.27(2) (2012).
19 Butterworth v. Smith, 494 U.S. 624, 626 (1990).
20 See The Florida Star v. B.J.F., 499 So. 2d 883 (Fla. 1st DCA 1986), rev’d 491 U.S. 524 (1989).
21 The Florida Star v. B.J.F., 491 U.S. 524, 526 (1989).
22 Id. at 541.
23 Fla. Stat. 905.17(4) (2012).
24 Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976).
25 Fla. Stat. 905.37(3) (2012).
26 Fla. Stat. 905.32 (2012).
28 See Fla. Stat. 905.34 (2012).
29 Fla. Stat. 905.33(1) (2012).
32 Fla. Stat. 905.395 (2012).
33 See Fla. Stat. 905.34 (2012).
34 18 U.S.C. 3321.
35 Fed. R. Crim. P. 6(f).
36 U.S. Const. amend. V.
37 18 U.S.C. 3331, et. seq..
38 18 U.S.C. 3333(a).
39 Fed. R. Crim. P. 6(d).
40 Fed. R. Crim. P. 6(e)(2)-(3).
41 Fed. R. Crim. P. 6(e)(2).
42 See In re Sealed Case, 192 F.3d 995, 1002-04 (D.C. Cir. 1999).
43 Fed. R. Crim. P. 6(e)(4).
44 See United States of America v. Aisenberg, 358 F.3d 1327, 1349 (11th Cir. 2004).
45 Id. at 1331.
47 Id. at 1332.
48 Id. at 1334.
49 Id. at 1335-36.
50 Id. at 1347.
51 Id. at 1349-52.
52 Id. at 1350-51.
Gregg D. Thomas is a member of the law firm Thomas & LoCicero PL in Tampa and South Florida. Mr. Thomas graduated with honors from the University of Florida College of Law in 1976, where he was executive editor of the Law Review. Before joining Thomas & LoCicero, he was a partner at Holland & Knight LLP for 22 years and clerked for two federal judges in the Middle District of Florida. He chaired the 1987 Media Law Conference and represents various media clients throughout Florida. In 1990, Mr. Thomas successfully argued Butterworth v. Smith, a United States Supreme Court case concerning the First Amendment rights of a reporter who was subpoenaed before a Florida grand jury and then silenced for life about his testimony. The Court’s unanimous decision ensures that the government cannot silence reporters.
Carol Jean LoCicero is a partner in the media law firm of Thomas & LoCicero PL in Tampa and South Florida. She received her J.D. with honors from the University of Florida College of Law in 1986, where she was elected to the Order of the Coif. Ms. LoCicero has represented various media interests in attempts to gain access to grand jury-related matters and participated in a case before the United States Supreme Court, which resulted in a declaration that Florida’s permanent ban on speech by grand jury witnesses is unconstitutional. Her practice includes access to court records and proceedings, defamation, invasion of privacy, reporter subpoenas, Public Records Act and Sunshine Act litigation, and trademark matters.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.