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 for
an offense the grand jury is investigating, or who is a subject of the
grand 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 and
one (1) alternate and may be impaneled by the circuit court or a
superior court with criminal jurisdiction. A grand jury shall hear and
examine evidence concerning crimes and shall take action with
respect to this evidence as provided by law.
(b) The court shall call the grand jury into session at the request
of the prosecuting attorney. The court may also convene the grand
jury without a request from the prosecuting attorney. The grand jury
shall be convened by the judge issuing an order requiring the jury to
meet 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 and
hear all evidence presented to the grand jury but may not comment,
deliberate, or vote unless there is not a quorum of grand jurors for a
particular 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 shall
be drawn, selected, and impaneled by the procedure set out in
IC 33-28-5.
(b) Whenever the court finds that the original panel was not
selected in substantial conformity with the requirements of law for
the selection of the panel, the court shall discharge the panel and
summon 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 bias
or prejudice;
(3) is guilty of misconduct in the performance of the juror's
duties that might impair the proper functioning of the grand
jury;
(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 juror
cannot act impartially and without prejudice to the substantial
rights of that person;
(10) holds a juror's place on the grand jury by reason of the
corruption of the officer who selected and impaneled the grand
jury; or
(11) has requested or otherwise caused any officer or an
officer's deputy to place the juror upon the grand jury;
the court shall refuse to swear that grand juror or, if the juror has
been sworn, shall discharge that grand juror and swear another grand
juror.
(d) After a grand jury has been impaneled, the court that called the
grand jury shall appoint one (1) of the grand jurors as foreman and
one (1) as clerk. During any absence of the foreman or clerk, the
grand jury shall select one (1) of their number to act as foreman or
clerk. The clerk shall keep minutes of the grand jury proceedings.
The court shall supply a means for recording the evidence presented
before the grand jury and all of the other proceedings that occur
before the grand jury, except for the deliberations and voting of the
grand jury and other discussions when the members of the grand jury
are the only persons present in the grand jury room. The evidence
and proceedings shall be recorded in the same manner as evidence
and proceedings are recorded in the court that impaneled the grand
jury. When ordered by the court, a transcript or a copy of the
recording shall be prepared and supplied to the requesting party. If
the transcript is supplied, it shall be at the cost of the party requesting
it. If a copy of the recording is supplied, the party requesting it is
responsible for the actual cost of reproduction. If a transcript has
already been prepared, the requesting party is responsible for the
actual cost of obtaining the copy. If the court finds the requesting
party is an indigent defendant, the cost of the transcript or copy of
the 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 you
will diligently inquire and make true presentment of all offenses
committed or triable within this county, of which you have or
can obtain legal evidence; that you will present no person
through malice, hatred, ill will, nor leave any unpresented
through fear, favor, or affection, or for any reward, or the
promise or hope thereof, but in all your indictments you will
present the truth, the whole truth, and nothing but the truth; that
you will not disclose any evidence given or proceeding had
before the grand jury; that you will keep secret whatever you or
any other grand juror may have said or in what manner you or
any 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 this
chapter to the grand jury upon the request of any member of the
grand jury. In addition, the court shall give the grand jurors any
instructions relating to the proper performance of their duties that the
court considers necessary.
(g) If a member of the grand jury has reason to believe that an
offense has been committed which is triable in the county, the
member may report this information to fellow jurors, who may then
investigate 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 at
least five (5) of its members are present.
(b) The foreman shall administer an oath to any witness appearing
before the grand jury.
(c) The prosecuting attorney, his staff and any witness the
prosecuting attorney or the grand jury requests to be present may be
present at any time during grand jury proceedings, except as
provided in subsection (h).
(d) The grand jury may request assistance from a clerk, or other
public servant, authorized by the court to assist the grand jury in the
administrative conduct of its proceedings. Such a clerk or other
public servant may be present during any grand jury proceedings,
except as specified in subsection (h).
(e) The person recording the proceedings may be present during
the proceedings except as specified in subsection (h).
(f) The grand jury may request the court to provide an interpreter
to assist the grand jury in understanding the testimony of any
witness, and the court shall provide an interpreter when requested.
Before assuming his duties with the grand jury, an interpreter shall
take an oath before the grand jury that he will faithfully interpret all
testimony of the witness and that he will keep secret all matters
before the grand jury that are within his knowledge. He may be
present 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 the
grand jury, a public servant assigned to guard him may accompany
him in the grand jury room. However, before entering the grand jury
room for that purpose, the public servant shall take an oath before the
grand jury that he will keep secret all matters before the grand jury
that are within his knowledge.
(h) During the deliberations and voting of the grand jury, only the
grand 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 discharge
of his duties or upon written order of the court impaneling the grand
jury or the court trying the case on indictment presented by the grand
jury, disclose:
(1) the nature or substance of any grand jury testimony; or
(2) any decision, result, or other matter attending the grand jury
proceeding.
However, any court may require any person present during a
proceeding to disclose the testimony of a witness as direct evidence
in a prosecution for perjury.
(j) The grand jury shall be the exclusive judge of the facts with
respect to any matter before it.
(k) The court and the prosecuting attorney shall be the legal
advisors of the grand jury, and the grand jury may not seek or receive
legal advice from any other source.
(l) The grand jury may not, without court permission, exercise any
of 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 testificandum
summoning a witness to appear before the grand jury shall be issued
by the clerk upon the request of the grand jury or prosecuting
attorney. The subpoena must contain a statement of the general
nature of the grand jury inquiry.
(b) If the subpoena is issued to a target, the subpoena shall also
contain 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 be
assisted by an attorney under section 13 of this chapter; and
(3) if he cannot afford an attorney, the court inpaneling the
grand jury will appoint one for him, upon request.
(c) If a witness fails to appear at the time and place stated in the
subpoena, the court may hold him in contempt of court, unless he had
filed a motion to quash the subpoena and the motion has been
granted 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 chapter
is entitled to the assistance of his attorney when the person is
questioned 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 first
obtaining 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 not
overheard by any member of the grand jury.
(c) The court that impaneled the grand jury may remove any
attorney from the grand jury room and may find him to be in
contempt of court if the attorney has violated the requirements of
subsection (b) or has otherwise disrupted or unnecessarily delayed
the 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 subpoena
duces tecum directed to that witness. The motion must include a
statement of the facts and grounds in support of the objection to the
subpoena. The court shall:
(1) promptly conduct a hearing on the motion; and
(2) at the conclusion of the hearing, enter findings in support of
its ruling.
(b) A target who is subpoenaed may move to quash a subpoena
based upon his privilege against self-incrimination. The court shall
grant the motion, unless the prosecuting attorney makes a written
request that the target be granted use immunity in accordance with
section 8 of this chapter. Upon request by the prosecuting attorney,
the court shall grant use immunity to the target and order him to
comply 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 any
question or produce any item, the prosecutor may inform the court,
in writing, of the question asked or item sought and the reason given
for the refusal. The court shall, after a hearing, decide whether the
witness is required to answer the question or produce the item and
the witness shall be informed immediately of the court's decision.
(b) If the court determines that the witness must answer the
question or produce the item and the witness continues to refuse, he
shall be brought before the court and the court shall proceed as if the
witness had refused in open court.
(c) If the court determines that the witness may properly refuse to
answer a question or produce an item based upon his privilege
against self-incrimination, the prosecutor may request the court to
grant 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 court
shall grant use immunity to a witness before the grand jury. The
court shall instruct the witness by written order or in open court that
any evidence the witness gives before the grand jury, or evidence
derived from that evidence, may not be used in any criminal
prosecution against that witness, unless the evidence is volunteered
by the witness or is not responsive to a question by the grand jury or
the prosecutor. The court shall then instruct the witness that he must
answer the questions asked and produce the items requested.
(b) A grant of use immunity does not prohibit the use of evidence
the 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 granted
use immunity, he shall be brought before the court and the court shall
proceed 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, no
person has a right to appear as a witness before the grand jury or to
present any evidence or information to the grand jury.
(b) A target of a grand jury investigation shall be given the right
to testify before the grand jury, provided he signs a waiver of
immunity. The prosecuting attorney shall notify a target of his
opportunity to testify unless:
(1) notification may result in flight or endanger other persons or
obstruct justice; or
(2) the prosecutor is unable, with reasonable diligence, to notify
him.
(c) The prosecuting attorney or grand jury may call as a witness
in a grand jury proceeding any person believed to possess relevant
information 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 who
has been present at a grand jury proceeding and who knowingly or
intentionally 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 or
entitled to be present at that proceeding or to the prosecuting attorney
or his representative, commits unauthorized disclosure of grand jury
information, a Class B misdemeanor.
(b) The transcript of testimony of a witness before a grand jury
may 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 grand
jury; or
(C) a court trying a prosecution for perjury;
but only after a showing of particularized need for the
transcript.
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 reasonable
times, to any county, city, or town facility where persons are held in
care or custody of such county, city, or town, for the purpose of
examining 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 on
whether to issue an indictment, the prosecuting attorney shall, on the
record:
(1) identify each target of the grand jury proceeding; and
(2) identify each offense that each target is alleged to have
committed.
(b) Before an indictment is valid, at least five (5) grand jurors
must 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) members
of the grand jury.
(c) An indictment is not valid unless the offense that the
indictment charges the defendant committed is an offense that is
contained on the record under subsection (a).
(d) An indictment is not valid if it indicts the target of a previous
grand jury who:
(1) was identified under subsection (a)(1);
(2) was the target of a previous grand jury that proceeded to
deliberate on whether to issue an indictment, and voted not to
indict the defendant for the offense identified to the previous
grand jury under subsection (a)(2); and
(3) was alleged to have committed an offense identified to a
previous grand jury under subsection (a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the previous
grand jury before the grand jury's failure to indict, then the
indictment 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 the
judicial circuit, extend the terms of the members of a grand jury then
convened for an additional term of three (3) months or more, as
requested by the prosecuting attorney. The terms of the members of
any grand jury may be so extended for successive periods of
increments of three (3) months or more, to a total length of no more
than 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 jurisdiction
may, upon due cause shown by petition of the prosecuting attorney
of the judicial circuit, order the clerk of the courts, or jury
administrator (as defined in IC 33-28-5-3) to draw the names of
competent persons to be summoned to serve on a special grand jury,
which shall serve in addition to the grand jury regularly summoned
and convened pursuant to law.
(b) A special grand jury has the powers and duties of a grand jury
prescribed 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 terms
of members of a special grand jury shall be extended for the same
period of time and in the same manner in which the terms of grand
jury 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; investigation
of panel; issuance of venires or summonses
Sec. 15. When names of grand jurors are ordered drawn to be
summoned under section 14 of this chapter, the judge shall specify
the number of names to be drawn, and shall enter an order in
sufficient time before the grand jury session to permit counsel to
know and investigate the panel of special grand jurors. The order of
names listed in the panel and called for service and entered in the
order book of the court shall be the same as that provided in
IC 33-28-5. The clerk shall issue summonses for such jurors as the
courts may direct. The sheriff or bailiff shall then call the special
grand jurors to the jury box in the same order as that in which their
names 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.