CHAPTER 2. GRAND JURY AND SPECIAL GRAND JURY
IC 35-34-2
Chapter 2. Grand Jury and Special Grand Jury
IC 35-34-2-1
"Target" defined
Sec. 1. As used in this chapter:
"Target" means a person who has been charged by information foran offense the grand jury is investigating, or who is a subject of thegrand jury investigation.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-2
Number; impaneling; scope of function and authority; convening
Sec. 2. (a) A grand jury shall consist of six (6) grand jurors andone (1) alternate and may be impaneled by the circuit court or asuperior court with criminal jurisdiction. A grand jury shall hear andexamine evidence concerning crimes and shall take action withrespect to this evidence as provided by law.
(b) The court shall call the grand jury into session at the requestof the prosecuting attorney. The court may also convene the grandjury without a request from the prosecuting attorney. The grand juryshall be convened by the judge issuing an order requiring the jury tomeet at a time specified.
(c) A grand jury may not remain in session for more than six (6)months.
(d) An alternate impaneled under this section shall appear andhear all evidence presented to the grand jury but may not comment,deliberate, or vote unless there is not a quorum of grand jurors for aparticular session.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.23; P.L.4-1998, SEC.12.
IC 35-34-2-3
Drawing, selecting, and impaneling; discharge of panel or juror;grounds; foreman and clerk; minutes; record transcript; oath;instructions; report of offense
Sec. 3. (a) The jurors on a grand jury and one (1) alternate shallbe drawn, selected, and impaneled by the procedure set out inIC 33-28-5.
(b) Whenever the court finds that the original panel was notselected in substantial conformity with the requirements of law forthe selection of the panel, the court shall discharge the panel andsummon another panel.
(c) Whenever the court finds that a grand juror:
(1) is disqualified from service under law;
(2) is incapable of performing the juror's duties because of biasor prejudice;
(3) is guilty of misconduct in the performance of the juror'sduties that might impair the proper functioning of the grandjury; (4) is under the age of eighteen (18) years;
(5) is not a resident of the county;
(6) is an alien;
(7) is a mentally incompetent person;
(8) is a witness for the prosecution;
(9) has such a state of mind in reference to a target that the jurorcannot act impartially and without prejudice to the substantialrights of that person;
(10) holds a juror's place on the grand jury by reason of thecorruption of the officer who selected and impaneled the grandjury; or
(11) has requested or otherwise caused any officer or anofficer's deputy to place the juror upon the grand jury;
the court shall refuse to swear that grand juror or, if the juror hasbeen sworn, shall discharge that grand juror and swear another grandjuror.
(d) After a grand jury has been impaneled, the court that called thegrand jury shall appoint one (1) of the grand jurors as foreman andone (1) as clerk. During any absence of the foreman or clerk, thegrand jury shall select one (1) of their number to act as foreman orclerk. The clerk shall keep minutes of the grand jury proceedings.The court shall supply a means for recording the evidence presentedbefore the grand jury and all of the other proceedings that occurbefore the grand jury, except for the deliberations and voting of thegrand jury and other discussions when the members of the grand juryare the only persons present in the grand jury room. The evidenceand proceedings shall be recorded in the same manner as evidenceand proceedings are recorded in the court that impaneled the grandjury. When ordered by the court, a transcript or a copy of therecording shall be prepared and supplied to the requesting party. Ifthe transcript is supplied, it shall be at the cost of the party requestingit. If a copy of the recording is supplied, the party requesting it isresponsible for the actual cost of reproduction. If a transcript hasalready been prepared, the requesting party is responsible for theactual cost of obtaining the copy. If the court finds the requestingparty is an indigent defendant, the cost of the transcript or copy ofthe recording supplied to the defendant shall be paid by the county.
(e) The following oath must be administered to the grand jury:
"You, and each of you, do solemnly swear or affirm that youwill diligently inquire and make true presentment of all offensescommitted or triable within this county, of which you have orcan obtain legal evidence; that you will present no personthrough malice, hatred, ill will, nor leave any unpresentedthrough fear, favor, or affection, or for any reward, or thepromise or hope thereof, but in all your indictments you willpresent the truth, the whole truth, and nothing but the truth; thatyou will not disclose any evidence given or proceeding hadbefore the grand jury; that you will keep secret whatever you orany other grand juror may have said or in what manner you orany other grand juror may have voted on a matter before the
grand jury.".
(f) The court shall provide a printed copy of the provisions of thischapter to the grand jury upon the request of any member of thegrand jury. In addition, the court shall give the grand jurors anyinstructions relating to the proper performance of their duties that thecourt considers necessary.
(g) If a member of the grand jury has reason to believe that anoffense has been committed which is triable in the county, themember may report this information to fellow jurors, who may theninvestigate the alleged offense.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,P.L.204, SEC.24; P.L.320-1983, SEC.14; P.L.312-1985, SEC.3;P.L.169-1988, SEC.6; P.L.33-1989, SEC.124; P.L.4-1998, SEC.13;P.L.98-2004, SEC.144; P.L.118-2007, SEC.29.
IC 35-34-2-4
Conduct of proceedings
Sec. 4. (a) The proceedings of a grand jury are not valid unless atleast five (5) of its members are present.
(b) The foreman shall administer an oath to any witness appearingbefore the grand jury.
(c) The prosecuting attorney, his staff and any witness theprosecuting attorney or the grand jury requests to be present may bepresent at any time during grand jury proceedings, except asprovided in subsection (h).
(d) The grand jury may request assistance from a clerk, or otherpublic servant, authorized by the court to assist the grand jury in theadministrative conduct of its proceedings. Such a clerk or otherpublic servant may be present during any grand jury proceedings,except as specified in subsection (h).
(e) The person recording the proceedings may be present duringthe proceedings except as specified in subsection (h).
(f) The grand jury may request the court to provide an interpreterto assist the grand jury in understanding the testimony of anywitness, and the court shall provide an interpreter when requested.Before assuming his duties with the grand jury, an interpreter shalltake an oath before the grand jury that he will faithfully interpret alltestimony of the witness and that he will keep secret all mattersbefore the grand jury that are within his knowledge. He may bepresent as requested by the grand jury, except as set out in subsection(h).
(g) When a person held in official custody is a witness before thegrand jury, a public servant assigned to guard him may accompanyhim in the grand jury room. However, before entering the grand juryroom for that purpose, the public servant shall take an oath before thegrand jury that he will keep secret all matters before the grand jurythat are within his knowledge.
(h) During the deliberations and voting of the grand jury, only thegrand jurors may be present in the grand jury room.
(i) Grand jury proceedings shall be secret, and no person present
during a grand jury proceeding may, except in the lawful dischargeof his duties or upon written order of the court impaneling the grandjury or the court trying the case on indictment presented by the grandjury, disclose:
(1) the nature or substance of any grand jury testimony; or
(2) any decision, result, or other matter attending the grand juryproceeding.
However, any court may require any person present during aproceeding to disclose the testimony of a witness as direct evidencein a prosecution for perjury.
(j) The grand jury shall be the exclusive judge of the facts withrespect to any matter before it.
(k) The court and the prosecuting attorney shall be the legaladvisors of the grand jury, and the grand jury may not seek or receivelegal advice from any other source.
(l) The grand jury may not, without court permission, exercise anyof its functions in any place other than that designated by the court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-5
Subpoenas; contents; failure to obey; contempt
Sec. 5. (a) A subpoena duces tecum or subpoena ad testificandumsummoning a witness to appear before the grand jury shall be issuedby the clerk upon the request of the grand jury or prosecutingattorney. The subpoena must contain a statement of the generalnature of the grand jury inquiry.
(b) If the subpoena is issued to a target, the subpoena shall alsocontain a statement informing the target that:
(1) he is a subject of the grand jury investigation;
(2) he has the right to consult with an attorney and to beassisted by an attorney under section 13 of this chapter; and
(3) if he cannot afford an attorney, the court inpaneling thegrand jury will appoint one for him, upon request.
(c) If a witness fails to appear at the time and place stated in thesubpoena, the court may hold him in contempt of court, unless he hadfiled a motion to quash the subpoena and the motion has beengranted or was pending at the time he was to have appeared.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.320-1983,SEC.15; P.L.170-1984, SEC.2.
IC 35-34-2-5.5
Target witnesses; right to counsel; removal of attorney
Sec. 5.5. (a) A target subpoenaed under section 5 of this chapteris entitled to the assistance of his attorney when the person isquestioned in the grand jury room, subject to this section.
(b) The target's attorney:
(1) must take an oath of secrecy administered by the foreman;
(2) while in the grand jury room may not, without firstobtaining the consent of the prosecutor and the foreman:
(A) address the grand jury or the prosecuting attorney; (B) make objections or arguments;
(C) question any person; or
(D) otherwise participate in the proceeding; and
(3) may advise the client so long as the conversation is notoverheard by any member of the grand jury.
(c) The court that impaneled the grand jury may remove anyattorney from the grand jury room and may find him to be incontempt of court if the attorney has violated the requirements ofsubsection (b) or has otherwise disrupted or unnecessarily delayedthe grand jury proceeding.
As added by P.L.170-1984, SEC.3.
IC 35-34-2-6
Motion to quash subpoena duces tecum; use immunity
Sec. 6. (a) Any witness may file a motion to quash a subpoenaduces tecum directed to that witness. The motion must include astatement of the facts and grounds in support of the objection to thesubpoena. The court shall:
(1) promptly conduct a hearing on the motion; and
(2) at the conclusion of the hearing, enter findings in support ofits ruling.
(b) A target who is subpoenaed may move to quash a subpoenabased upon his privilege against self-incrimination. The court shallgrant the motion, unless the prosecuting attorney makes a writtenrequest that the target be granted use immunity in accordance withsection 8 of this chapter. Upon request by the prosecuting attorney,the court shall grant use immunity to the target and order him tocomply with the subpoena.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-7
Witnesses; refusal to answer; compelling testimony
Sec. 7. (a) If a witness before the grand jury refuses to answer anyquestion or produce any item, the prosecutor may inform the court,in writing, of the question asked or item sought and the reason givenfor the refusal. The court shall, after a hearing, decide whether thewitness is required to answer the question or produce the item andthe witness shall be informed immediately of the court's decision.
(b) If the court determines that the witness must answer thequestion or produce the item and the witness continues to refuse, heshall be brought before the court and the court shall proceed as if thewitness had refused in open court.
(c) If the court determines that the witness may properly refuse toanswer a question or produce an item based upon his privilegeagainst self-incrimination, the prosecutor may request the court togrant use immunity to the witness under section 8 of this chapter.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-8
Witnesses; use immunity Sec. 8. (a) Upon request by the prosecuting attorney, the courtshall grant use immunity to a witness before the grand jury. Thecourt shall instruct the witness by written order or in open court thatany evidence the witness gives before the grand jury, or evidencederived from that evidence, may not be used in any criminalprosecution against that witness, unless the evidence is volunteeredby the witness or is not responsive to a question by the grand jury orthe prosecutor. The court shall then instruct the witness that he mustanswer the questions asked and produce the items requested.
(b) A grant of use immunity does not prohibit the use of evidencethe witness gives in a prosecution for perjury under IC 35-44-2-1.
(c) If a witness refuses to give evidence after he has been granteduse immunity, he shall be brought before the court and the court shallproceed as if the witness had refused in open court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-9
Right to testify before grand jury; target of investigation;notification; waiver of immunity; calling of witnesses
Sec. 9. (a) Except as provided by subsection (b) of this section, noperson has a right to appear as a witness before the grand jury or topresent any evidence or information to the grand jury.
(b) A target of a grand jury investigation shall be given the rightto testify before the grand jury, provided he signs a waiver ofimmunity. The prosecuting attorney shall notify a target of hisopportunity to testify unless:
(1) notification may result in flight or endanger other persons orobstruct justice; or
(2) the prosecutor is unable, with reasonable diligence, to notifyhim.
(c) The prosecuting attorney or grand jury may call as a witnessin a grand jury proceeding any person believed to possess relevantinformation or knowledge.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-10
Unauthorized disclosure of grand jury information; offense;production of transcript
Sec. 10. (a) Except when required to do so by law, a person whohas been present at a grand jury proceeding and who knowingly orintentionally discloses:
(1) any evidence or testimony given or produced;
(2) what a grand juror said; or
(3) the vote of any grand juror;
to any other person, except to a person who was also present orentitled to be present at that proceeding or to the prosecuting attorneyor his representative, commits unauthorized disclosure of grand juryinformation, a Class B misdemeanor.
(b) The transcript of testimony of a witness before a grand jurymay be produced only: (1) for the official use of the prosecuting attorney; or
(2) upon order of:
(A) the court which impaneled the grand jury;
(B) the court trying a case upon an indictment of the grandjury; or
(C) a court trying a prosecution for perjury;
but only after a showing of particularized need for thetranscript.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,SEC.4.
IC 35-34-2-11
Access to local government facilities for care or custody of persons
Sec. 11. The grand jury shall have free access, at all reasonabletimes, to any county, city, or town facility where persons are held incare or custody of such county, city, or town, for the purpose ofexamining their condition and management.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-12
Identification of target and offense; validity of indictment;concurrence of five grand jurors; signatures; endorsement
Sec. 12. (a) Before the grand jury proceeds to deliberate onwhether to issue an indictment, the prosecuting attorney shall, on therecord:
(1) identify each target of the grand jury proceeding; and
(2) identify each offense that each target is alleged to havecommitted.
(b) Before an indictment is valid, at least five (5) grand jurorsmust concur in the finding of the indictment, and it must be:
(1) signed by the prosecuting attorney or his deputy;
(2) endorsed with the phrase "a true bill"; and
(3) signed by the foreman of the grand jury or five (5) membersof the grand jury.
(c) An indictment is not valid unless the offense that theindictment charges the defendant committed is an offense that iscontained on the record under subsection (a).
(d) An indictment is not valid if it indicts the target of a previousgrand jury who:
(1) was identified under subsection (a)(1);
(2) was the target of a previous grand jury that proceeded todeliberate on whether to issue an indictment, and voted not toindict the defendant for the offense identified to the previousgrand jury under subsection (a)(2); and
(3) was alleged to have committed an offense identified to aprevious grand jury under subsection (a)(2).
However, if the prosecuting attorney shows that there is newlydiscovered material evidence that was not presented to the previousgrand jury before the grand jury's failure to indict, then theindictment is not defective.As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,SEC.2.
IC 35-34-2-13
Extension of term; limitation
Sec. 13. The judge of any court having criminal jurisdiction may,upon due cause shown by petition of the prosecuting attorney of thejudicial circuit, extend the terms of the members of a grand jury thenconvened for an additional term of three (3) months or more, asrequested by the prosecuting attorney. The terms of the members ofany grand jury may be so extended for successive periods ofincrements of three (3) months or more, to a total length of no morethan two (2) years.
As added by P.L.171-1984, SEC.75.
IC 35-34-2-14
Special grand jury; powers and duties; term
Sec. 14. (a) The judge of any court having criminal jurisdictionmay, upon due cause shown by petition of the prosecuting attorneyof the judicial circuit, order the clerk of the courts, or juryadministrator (as defined in IC 33-28-5-3) to draw the names ofcompetent persons to be summoned to serve on a special grand jury,which shall serve in addition to the grand jury regularly summonedand convened pursuant to law.
(b) A special grand jury has the powers and duties of a grand juryprescribed by law.
(c) The members of the special grand jury serve terms of three (3)months or more, as requested by the prosecuting attorney. The termsof members of a special grand jury shall be extended for the sameperiod of time and in the same manner in which the terms of grandjury members may be extended under section 13 of this chapter.
As added by P.L.171-1984, SEC.76. Amended by P.L.98-2004,SEC.145; P.L.118-2007, SEC.30.
IC 35-34-2-15
Special grand jury; number and names to be drawn; investigationof panel; issuance of venires or summonses
Sec. 15. When names of grand jurors are ordered drawn to besummoned under section 14 of this chapter, the judge shall specifythe number of names to be drawn, and shall enter an order insufficient time before the grand jury session to permit counsel toknow and investigate the panel of special grand jurors. The order ofnames listed in the panel and called for service and entered in theorder book of the court shall be the same as that provided inIC 33-28-5. The clerk shall issue summonses for such jurors as thecourts may direct. The sheriff or bailiff shall then call the specialgrand jurors to the jury box in the same order as that in which theirnames were drawn from the jury pool and certified thereto.
As added by P.L.171-1984, SEC.77. Amended by P.L.98-2004,SEC.146; P.L.118-2007, SEC.31.