LOUISIANA STATUTORY LAW AND CRIMINAL PROCEDURE

LOUISIANA STATUTORY LAW AND CRIMINAL PROCEDURE

TITLE XII

THE GRAND JURY

Art.
431. Oath of grand jury.
432. Charge to grand jury.
433. Persons present during grand jury sessions.
434. Secrecy of grand jury meetings; procedures for crimes in other parishes.
435. Meetings of grand jury.
436. The foreman; rules of procedure.
437. Inquiry into offenses; authority and duties.
438. Duty of grand juror having knowledge of offense; investigation.
439. Subpoena of witnesses to appear before the grand jury.
439.1. Witnesses; authority to compel testimony and evidence.
440. Administration of oath to witnesses.
441. Administration of oath to other persons.
442. Evidence to be received by grand jury.
443. When indictment to be found.
444. Action by grand jury.

Art. 431. Oath of grand jury
The grand jurors shall take the following oath when impaneled:
“As members of the grand jury, do you solemnly swear or affirm that you will DILIGENTLY INQUIRE INTO AND TRUE PRESENTMENT MAKE of all indictable offenses triable within this parish which shall be given you in charge, OR WHICH SHALL OTHERWISE COME TO YOUR KNOWLEDGE; that you will keep secret your own counsel and that of your fellows and of the state, and will not, except when authorized by law, disclose testimony of any witness examined before you, nor disclose anything which any grand juror may have said, or how any grand juror may have voted on any matter before you; that you will not indict any person through malice, hatred, or ill will, NOR FAIL TO INDICT ANY PERSON THROUGH FEAR, FAVOR, AFFECTION, OR HOPE OF REWARD OR GAIN; but in all of your indictments you will present the truth, according to the best of your skill and understanding?”
The oath shall be read to the grand jury by the clerk, who shall then ask each juror: “Do you take this oath or affirmation?”
The oath shall be administered to every grand juror appointed to fill a vacancy in the grand jury and to every grand juror who was not present at the taking of the oath by the grand jury.

Official Revision Comment
(a) The oath in this article generally conforms to the provisions of Art. 204 of the 1928 Code of Criminal Procedure.

The direct procedure for administering the oath is based in large measure upon American Law Institute Code of Criminal Procedure, § 126. It is more effective than the procedure of Art. 204 of the 1928 Code, under which the oath was administered in full to the foreman, followed by an oath of the other grand jurors that they heard the oath administered to the foreman and would keep that oath.

(b) “Oath” is defined in Art. 934(8) to include affirmation. See also, Article 14. Under Revised Statute 13:910, the judge may direct the minute clerk to administer the oath required by law of all witnesses and jurors.

A proper entry in the minutes of the court can serve as proof that the oath has been administered. However, it does not appear that proof is limited to such an entry. In State v. Folke, 2 La.Ann. 744 (1847), there was no minute entry concerning the administration of the oath, but a motion to quash was denied on the grounds that sufficient proof was available from the wording of the indictment, “The Grand Jurors . . . duly empaneled and sworn,” and by the clerk’s affidavit that the jurors had been duly sworn.

(c) Under Art. 382 prosecutions for felonies must be instituted by grand jury indictment or by information. THE NEBULOUS “PRESENTMENT,” REFERRED TO IN ART. 204 OF THE 1928 CODE AS A DIRECT MEANS OF INSTITUTING PROCEEDINGS, IS NOT INCLUDED HERE. HOWEVER, THE GRAND JURY MAY RETURN AN INDICTMENT ON ITS OWN INITIATIVE AND THIS IS TANTAMOUNT TO A “PRESENTMENT.” See Articles 437 and 444 and Comment (e) thereunder.

(d) The exception to the oath of secrecy, permitting a disclosure of testimony when authorized by law, is elaborated upon in Article 434.

(e) The last paragraph of this article, requiring administration of the oath to a grand juror who reports for duty after the oath has been administered to the others is retained from Article 204 of the 1928 Code. State v. Furco, 51 La.Ann. 1082, 25 So. 951 (1899); State v. Ross, 212 La. 405, 31 So.2d 842 (1947).

Historical and Statutory Notes
Source:
Former Revised Statute 15:204; American Law Institute Code of Criminal Procedure, §126; Illinois Code of Criminal Procedure, § 112﷓2; Acts 1966, No. 310, § 1.

Art. 432. Charge to grand jury
After the oath is administered to the members of the grand jury, the judge shall charge them orally in open court upon their duties, rights, and powers. Upon completion of the charge the judge shall give the grand jury a written copy of the charge.

At any time thereafter, the judge, on his own initiative or on request of the grand jury, may give the grand jury additional charges concerning their duties, rights, and powers. Such additional charges shall be given in open court, and a written copy thereof shall thereafter be given to the grand jury.

Official Revision Comment
(a) This article follows Article 205 of the 1928 Code of Criminal Procedure. Deletion of the term “instruction” is a purely stylistic change, because there is no distinction between the words “charge” and “instruction.” Only the word “charge” is employed in comparable Section 127 of the American Law Institute Code of Criminal Procedure.

(b) It is implicit in this article, as in Art. 205 of the 1928 Code, that each juror must be given the same charge. However, a rigid compliance with that implication has not been required by the courts. For example, if a grand juror is not charged at the same time the others are charged, and identical charges are not given, the grand jury remains competent to act. State v. Smith, 158 La. 129, 103 So. 534 (1925). Also, there is no requirement that the judge repeat the charge anew to the full jury after filling a vacancy. State v. Furco, 51 La.Ann. 1082, 25 So. 951 (1899).

(c) The requirement that the charge be given orally in open court and then reduced to writing is retained from a 1940 amendment to Art. 205 of the 1928 Code to prevent recurrence of the complaint that arose in State ex rel. De Armas v. Platt, 193 La. 928, 192 So. 659 (1939). In the De Armas case the relator urged that the district judge called the jury into private consultation, and give them certain secret and improperly restrictive instructions.

(d) Former Revised Statute 15:205.1 to 15:205.4, providing for certain mandatory special charges, are repealed by Section 5 of the Code statute and are not retained in this Code nor elsewhere in the law. The special charges required by R.S. 15:205.1 (charge in Orleans Parish on liquor laws), 15:205.2 (charge on crimes of bribery, public intimidation, etc.), and 15:205.3 (charge on duty of fiduciaries to account) were not of general application. When such charges serve a useful purpose they can be voluntarily given by the judge or requested by the grand jury. The special charge of R.S. 15:205.4, concerning a grand juror’s duty to inform the jury of known crimes was unnecessary. The grand juror’s duty is set out in Art. 438 and comes within the general charge upon the duties, rights, and powers of the grand jury.

Historical and Statutory Notes
Source:
Acts 1966, No. 310, § 1; cf. former R.S. 15:205.

Art. 433. Persons present during grand jury sessions
A. (1) Only the following persons MAY be present at the sessions of the grand jury:

(a) The district attorney and assistant district attorneys or any one or more of them;

(b) The attorney general and assistant attorneys general or any one of them;

(c) The witness under examination;

(d) A person sworn to record the proceedings of and the testimony given before the grand jury; and

(e) An interpreter sworn to translate the testimony of a witness who is unable to speak the English language.

(2) An attorney for a target of the grand jury’s investigation may be present during the testimony of said target. The attorney shall be prohibited from objecting, addressing or arguing before the grand jury; however he may consult with his client at anytime. The court shall remove such attorney for violation of these conditions. If a witness becomes a target because of his testimony, the legal advisor to the grand jury shall inform him of his right to counsel and cease questioning until such witness has obtained counsel or voluntarily and intelligently waived his right to counsel. Any evidence or testimony obtained under the provisions of this Subparagraph from a witness who later becomes a target shall not be admissible in a proceeding against him.

B. NO PERSON, OTHER THAN A GRAND JUROR, SHALL BE PRESENT WHILE THE GRAND JURY IS DELIBERATING AND VOTING.

C. A person who is intentionally present at a meeting of the grand jury, except as authorized by Paragraph A of this article, shall be in constructive contempt* of court. Amended by Acts 1972, No. 409, § 1; Acts 1986, No. 725, § 1; Acts 1992, No. 308, § 1.

*Constructive contempt. Constructive (or indirect) contempts are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. Constructive contempts were formerly called “consequential,” and this term is still in occasional use.

Official Revision Comment
Some of the more important reasons for the secrecy of grand jury meetings provided for in Arts. 433 and 434 are: “. . . (1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation . . ..” United States v. Rose, 215 F.2d 617, 628 (3rd Cir.1954). See also State v. Revere, 232 La. 184, 94 So.2d 25 (1957) for a similar list of reasons.

(a) Paragraph A of this article adds to the list of persons permitted to be in attendance at a grand jury session. Former Revised Statute 15:215, besides jurors and the witness testifying, permitted the district attorney, a stenographer, and an interpreter to be present. Paragraph A of the above article adds: (1) assistant district attorneys, and permits their presence either alone or with the district attorney, and (2) a person sworn to record the proceedings of, and the testimony given before, the grand jury. This latter provision conforms with the proposed amendment to Federal Rule 6(d), and fills a gap recognized by the court in State v. Revere, supra, wherein the court said: “A `monitor’ or `operator’ of a recording machine is not one of those enumerated [in R.S. 15:215], and we must conclude that until provision is made in our law for the presence of such persons, it is not province of the court to hold they are included.” Id. at 199, 94 So.2d at 31. Permitting the attendance of a person “sworn to record,” rather than a “stenographer” as in former Revised Statute 15:215, allows the use of modern recording devices and avoids Revere type distinctions.

(b) Paragraph B carries forward the provision of Article 19 of the 1928 Code that no person (not even the district attorney) shall be present during the deliberations and voting by the grand jury. See Art. 64.

(c) Paragraph C is new. See Articles 24 and 25 on contempt.

(d) Under State v. Revere, supra, an indictment is subject to a motion to quash if an unauthorized person is present at a grand jury meeting whether or not the presence works to prejudice the defendant. This view was adopted by the court because: First, the defendant has no way of proving prejudice, which may take many rather intangible forms. Second, it is the possibility of prejudice and influence on the grand jurors that must be guarded against. In summarizing these arguments, the court stated, “. . . the mere presence of an unauthorized person in the grand jury room is violative of a substantial right of the citizen and cannot, if we are to preserve the safeguards of our heritage in grand jury proceedings, be abridged through the subterfuge of shifting to that citizen the burden of proving such an invasion of his substantial rights was prejudicial.” Id. at 203, 94 So.2d at 32. The federal courts have followed the same “prejudice presumed” rule which was applied in the Revere case. United States v. Borys, 169 F.Supp. 366 (Alas.1959), approving People v. Minet, 296 N.Y. 315, 73 N.E.2d 529 (1947). This article does not purport to change the Revere rule. However, neither the Revere rule nor the contempt provision of Paragraph C should apply if an unauthorized person inadvertently enters the grand jury room and is promptly removed.

Historical and Statutory Notes
Source:
Former R.S. 15:19, 15:215; A.L.I. Code of Crim.Proc., § 133; I11.Code of Crim.Proc., § 112﷓6(a); Acts 1966, No. 310, § 1.

Art. 434. Secrecy of grand jury meetings; procedures for crimes in other parishes
A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.

B. Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish.

C. Any person who violates the provisions of this article shall be in constructive contempt of court. Amended by Acts 1972, No. 450, § 1.

Official Revision Comment
(a) The secrecy provisions of the 1928 Code of Criminal Procedure were incomplete and inadequate. Article 215 of that Code in general terms required secrecy and specifically required that a stenographer or an interpreter had to be sworn to secrecy. Under special evidence rules of Article 470 and 471 of the 1928 Code, grand jurors and the district attorney are incompetent to testify as to grand jury proceedings or as to the evidence upon which an indictment was found, but those provisions have been somewhat limited by the jurisprudence, as will be pointed out later. The above article is based upon Louisiana jurisprudence interpreting the sketchy provisions of the 1928 Code, suggestions made by the Advisors, and some appropriate provisions of the American Law Institute Code of Criminal Procedure §§ 143 to 145.

(b) The obligation of secrecy applies to the grand jury and “all other persons present at a grand jury meeting.” This includes the district attorney and his assistants, the stenographer or other person who records the proceedings, any interpreter, and witnesses who appear before the grand jury. The 1928 Code provisions were clear in imposing secrecy upon grand jurors, stenographers, and interpreters (Articles 204 and 215), but there was no direct statutory imposition of secrecy upon witnesses who appeared before the grand jury. The court, however, construed the oath required of witnesses (former Article 212), which says nothing of secrecy, and the general mandate of secrecy in former Article 215, to require secrecy of a witness. State v. Revere, 232 La. 184, 94 So.2d 25 (1957). The above article follows that scheme and reaches grand jurors and all other persons present at a grand jury meeting. The secrecy required of a witness appearing before the grand jury does not preclude the witness from discussing his knowledge of the facts of a case with defense counsel, or with anyone else. Furthermore, the article expressly permits the witness to discuss his testimony given before the grand jury with those having a legitimate interest in that testimony, i.e., defense counsel, the district attorney, or the court. The secrecy required of a witness serves to restrain him from disclosing matters which he learns by being present at the grand jury meeting, such as (1) what offenses are under investigation, (2) which persons are under investigation, and (3) the names of persons who have been, or will be, called to testify. The scope of the witness’s obligation of secrecy is also stated in the oath required of the witness. Article 440. As thus stated, the witness’s obligation of secrecy affords a large measure of protection to grand jury proceedings but does not curtail a defense attorney’s discovery of facts concerning the case.

(c) The obligation of secrecy is extended beyond the source provisions of the 1928 Code, to include all persons having confidential access to information concerning grand jury proceedings. This embraces stenographers employed in the district attorney’s office and certain deputy sheriffs or clerks. Since some of those persons may not be required to take the oath of secrecy prescribed by Article 441, it will be incumbent upon the district attorney or the court, as the case may be, to explain the obligation of secrecy to them.

(d) In addition to the limitation upon the witness’s obligation of secrecy (Comment (b) above), two general exceptions to the rule of secrecy are stated.

The first exception permits revelation, after indictment to specified properly interested persons, and testimony concerning, statutory irregularities in grand jury proceedings. This codifies, in broadened form, the rule of State v. Revere, supra, and State v. Kifer, 186 La. 674, 173 So. 169 (1937). In the Revere case the court held it is permissible to show that an unauthorized person, a recording machine operator, was present during a grand jury session; in the Kifer case the court permitted disclosure that the district attorney appeared before the jury during its deliberations. The rationale of these cases is that persons under investigation have a basic right to have the grand jury proceed in the ways specified by statute. This right logically extends to other matters. Examples of other statutory irregularities which should be open to disclosure include: (1) deciding an indictment by lot instead of by vote, (2) returning an indictment with less than the required vote, and (3) returning an indictment from a meeting held without a quorum.

The second exception, in conformity with the evidence rule of Revised Statute 15:471, permits disclosure of grand jury testimony to show perjury. Under Revised Statute 14:124 inconsistent statements made before the grand jury and at the subsequent trial of the case constitute perjury, unless the defendant can affirmatively establish that both statements were honestly believed to be true when they were made.

(e) THE STATUTORY OBLIGATION OF SECRECY DOES NOT PRECLUDE REVELATION OF TESTIMONY TO SHOW THAT A PERSON’S CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED. In State v. Smalling, 240 La. 887, 906, 125 So.2d 399, 405 (1960), the court said: “THE INDICTMENT . . . IS THE FOUNDATION OF THE CRIMINAL CASE, AND IF IT IS GROUNDED, IN WHOLE OR IN PART, ON EVIDENCE SECURED IN VIOLATION OF A CONSTITUTIONAL RIGHT, IT IS AN ABSOLUTE NULLITY.” Although the court in that case did not deal with the rule of secrecy required by statute (former Revised Statute 15:215), IT NECESSARILY FOLLOWS THAT A REVELATION OF TESTIMONY MAY BE REQUIRED IN ORDER TO DETERMINE IF A PERSON’S CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED IN THE GRAND JURY ROOM. The recent case of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), makes the Fifth Amendment privilege against self-incrimination applicable to state proceedings. In view of the nebulous extent of such constitutional rights, AND THE FACT THAT SUCH RIGHTS CAN NEVER BE ABROGATED BY STATE STATUTE, it was not deemed necessary or advisable to attempt the formulation of an exception to conform with the Smalling decision.

(f) The second paragraph, providing a sanction of contempt, is new. A similar provision is found in Illinois Code of Criminal Procedure, § 112﷓6.

Historical and Statutory Notes
Source:
Former R.S. 15:215; A.L.I. Code of Crim.Proc., §§ 143, 144, 145; Ill. Code of Crim.Proc., § 112﷓6(b); Acts 1966, No. 310, § 1.

Art. 435. Meetings of grand jury
The grand jury shall meet as directed by the court, or may meet on its own initiative at the direction of nine of its members, at any time and place within the parish. Nine grand jurors shall constitute a quorum, and nine grand jurors must concur to find an indictment. Amended by Acts 1975, Ex. Sess., No. 45, § 2, eff. Feb. 20, 1975.

Official Revision Comment

(a) This article makes no change in the law. The quorum requirement of nine grand jurors conforms with Constitution (1921) Article. VII, § 42. The above article omits the requirements that the grand jury shall consist of twelve members and that nine jurors must concur to find an indictment, because those rules are stated in Articles 413 and 383, respectively.

(b) The normal meeting place of the grand jury is the parish seat BUT MEETINGS MAY BE HELD ELSEWHERE IN THE PARISH. The provision that nine grand jurors, rather than a majority as in former Revised Statute 15:207, may fix the time and place of a meeting is in line with the general rule that grand jury action requires a vote of nine of its members. See Article 444(B). The calling of a grand jury meeting “at the direction” of nine members implies that reasonable notice of the meeting will be given to all grand jurors.

Since a grand jury is “authorized to act on evidence submitted to it, . . .” and “its members are also required, . . . to act upon facts within their own knowledge . . . it . . . follows that they do not require permission of the court to investigate crime, but are bound to take the initiative and determine for themselves the character of the evidence, or the sufficiency of the facts, necessary to their findings.” State v. Johnson, 116 La. 856, 864, 41 So. 117, 119 (1906). In the Johnson case, which was decided before there was a statutory authority like former Revised Statute 15:207 and this article, it was held proper for the grand jury to visit the scene of a homicide without permission of the court. SUCH AUTHORITY TO HOLD MEETINGS ON THEIR OWN INITIATIVE IS RETAINED IN THIS ARTICLE.

Historical and Statutory Notes
Source:
Former Revised Statute 15:206, 15:207; Acts 1966, No. 310, § 1.

Art. 436. The foreman; rules of procedure
The foreman of the grand jury shall preside over all hearings. He may delegate duties to other grand jurors and may determine rules of procedure. A grand juror who objects to a rule of procedure made by the foreman may apply to the court for a determination of the matter.

Official Revision Comment
(a) The cumbersomely stated provision of former Revised Statute 15:210.2, under which the grand jury was to establish rules by a vote of nine members, was seldom followed. The Federal Rules, the Uniform Rules, and many state laws, have no provision for adopting the rules by which grand jury proceedings are to be conducted. This article follows Illinois Code of Criminal Procedure, § 1124(b), the most workable statute found. The Texas rule similarly and very simply provides that “The foreman shall . . . conduct its business in an orderly manner.” Texas Code of Criminal Procedure, Art. 379.

(b) The authority of any grand juror to appeal to the court prevents autocratic control by the foreman.

Historical and Statutory Notes
Source:
Illinois Code of Criminal Procedure, § 112﷓4(b); Acts 1966, No. 310, § 1.

Art. 437. Inquiry into offenses; authority and duties
The grand jury shall inquire into all capital offenses triable within the parish. IT MAY INQUIRE INTO OTHER OFFENSES TRIABLE BY THE DISTRICT COURT OF THE PARISH, and shall inquire into such offenses when requested to do so by the district attorney or ordered to do so by the court.

Official Revision Comment
(a) The general permissive authority, stated in the second sentence, to inquire into all offenses triable by the district court of the parish, is broader than the provisions of Art. 209 of the 1928 Code of Criminal Procedure, which did not extend to noncapital crimes unless the grand jury’s attention was directed to an offense by the court or by the district attorney. However, a broader inquisitorial power existed under an unrepealed provision of the Revised Statutes of 1870 which was incorporated into the 1950 Revised Statutes as former Revised Statute 15:209.1. It required a member of the grand jury to bring to the attention of his fellow members any violation of the criminal law which came to his personal knowledge, or of which he had been informed. Professor Slovenko states: “In effect, the integration of the 1870 provision was simply an adoption of the jurisprudence. Applying the 1870 provision, which was not expressly superseded by the 1928 Code, and the pre﷓codal jurisprudence relating thereto, the Louisiana Supreme Court ruled that the grand jury could return an indictment regardless of how the information on which it acted came to its attention.” Slovenko, The Jury System in Louisiana Criminal Law, 17 La.L.Rev. 655, 657 (1957). See State v. Vial, 153 La. 883, 96 So. 796 (1923), and State v. Richey, 195 La. 319, 196 So. 545 (1940). The omission of the prerequisite that the grand jury’s attention be directed to the crime by the court or district attorney, therefore, conforms with the jurisprudence based upon the broad provision of former Revised Statute 15:209.1. See Article 438.

ONE WRITER HAS SUGGESTED THAT, BECAUSE OF THEIR IGNORANCE OF THEIR POWERS OF INDEPENDENT INVESTIGATION, GRAND JURIES OFTEN FAIL TO EXERCISE THE POWERS FULLY, IF AT ALL. Note, 37 Minn.L.Rev. 586, n. 46 (1953). THE COURT IN ITS CHARGE TO THE GRAND JURY, SHOULD INCLUDE A BRIEF STATEMENT OF THE JURY’S POWER TO INITIATE THE INVESTIGATION OF CRIMES. See Comment (d) to Article 432.

(b) The grand jurors’ duty to inquire into all capital offenses, and other offenses brought to their attention by the court or the district attorney, is retained from Article 209 of the 1928 Code of Criminal Procedure.

(c) The phrase “offenses triable by the district court” excludes crimes triable only in the city court (violations of municipal ordinances) and offenses subject to exclusive handling as juvenile cases. The term “offense” is broadly defined in Art. 933(1) to include both felonies and misdemeanors.

Historical and Statutory Notes
Source:
Former Revised Statute Statute 15:209; Acts 1966, No. 310, § 1.

Art. 438. Duty of grand juror having knowledge of offense; investigation
IF A GRAND JUROR KNOWS OR HAS REASON TO BELIEVE THAT AN OFFENSE TRIABLE BY THE DISTRICT COURT OF THE PARISH HAS BEEN COMMITTED, HE SHALL DECLARE SUCH FACT TO HIS FELLOW JURORS, WHO MAY INVESTIGATE IT. IN SUCH INVESTIGATION OR ANY SUBSEQUENT CRIMINAL PROCEEDING THE GRAND JUROR SHALL BE A COMPETENT WITNESS.

Official Revision Comment
(a) This article complements Article 437, which empowers the grand jury to inquire into all offenses triable within the parish. It conforms, in substance, with former Revised Statute 15:209.1 and with Sec. 136 of the American Law Institute Code of Criminal Procedure. The American Law Institute provision is found, with minor variations, in twenty-two states.

(b) This article does not include the penal sanction provided for in Article 209.1 of the 1928 Code. This omission is in accord with the American Law Institute Code and the laws of other states that impose a duty on jurors to inform the jury of crimes. The individual grand juror’s duty to inform of crimes is not a duty which is appropriately or effectively enforceable by penal sanction.

(c) The declaration in the last sentence that a grand juror shall be considered a competent witness is carried forward from former Article 209.1. It answers any claim that a grand juror, with knowledge of an offense, should be precluded from testifying because of his status as a grand juror or because of the rule of secrecy which surrounds grand jurors. A similar provision is found in Section 136 of the American Law Institute Code, which is the principal source of this article.

Historical and Statutory Notes
Source:
A.L.I. Code of Criminal Procedure, § 136; former Revised Statute 15:209.1; Acts 1966, No. 310, § 1.

Art. 439. Subpoena of witnesses to appear before the grand jury
Upon request of the grand jury OR the district attorney, the court shall issue a subpoena for a witness to appear before the grand jury to testify when questioned by the grand jury or district attorney, or both, concerning an offense under investigation. Upon request of the grand jury or the district attorney, the court may also issue a subpoena duces tecum. The issuance, service, and return of a subpoena provided for in this article and the effect of the return and the enforcement of the subpoena shall be as provided in Articles 731 through 737.

Subpoena duces tecum /ss(b)piyn3 d(y)iiwsiyz tiykam/. A court process, initiated by party in litigation, compelling production of certain specific documents and other items, material and relevant to facts in issue in a pending judicial proceeding, which documents and items are in custody and control of person or body served with process. See Fed.R.Civil P. 45, and Fed.R.Crim.P. 17.

Official Revision Comment

Contumacious failure of the person subpoenaed to appear or to comply with a subpoena duces tecum is punishable as a constructive contempt of court under the general contempt provisions of Article 23(2).

Historical and Statutory Notes
Source:
Acts 1966, No. 310, § 1; cf. former Revised Statute 15:214.

Art. 439.1. Witnesses; authority to compel testimony and evidence
A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.

B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment

(1) the testimony or other information from such individual may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.

C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.

D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law. Added by Acts 1972, No. 410, § 1.

Art. 440. Administration of oath to witnesses
A witness who is to testify before the grand jury shall first be sworn by the foreman, in accordance with Article 14, to testify truthfully and to keep secret, except as authorized by law, matters which he learns at the grand jury meeting. Amended by Acts 1988, No. 515, § 3, eff. Jan. 1, 1989.

Official Revision Comment
(a) It is appropriate that the language employed in the witness’s oath to tell the truth should be the same in both civil and criminal proceedings. Therefore, the Code of Civil Procedure language “to speak the truth and nothing but the truth” is employed.

(b) See Comments (b) and (d) under Article 434 for discussion of the scope of and the exceptions to the witness’s obligation of secrecy. The exceptions to the witness’s obligation of secrecy are recognized in the oath “to keep secret, except as authorized by law, matters he learns at the grand jury meeting.” (Emphasis supplied.)

(c) Refusal to take the oath and refusal to testify will be a constructive contempt of court under Article 23(2). Accord: Code of Criminal Procedure Article 224.

(d) Administration of the oath by the foreman of the grand jury conforms with Article 212 of the 1928 Code. Accord: American Law Institute Code of Criminal Procedure, § 137. The phrase “or . . . acting foreman” is not retained, because the functions of an acting foreman are provided for in Article 415(3).

Historical and Statutory Notes
Source:
Former Revised Statute 15:212, 15:366; Code of Criminal Procedure Article 1633; Acts 1966, No. 310, § 1.

Section 12 of Acts 1988, No. 515 (§ 1 of which enacts the new Louisiana Code of Evidence and § 3 of which amends this article) provides:

“Section 12. (1) The provisions of this Act shall govern and regulate all civil proceedings commenced and criminal prosecutions instituted on or after the effective date of this Act.

“(2) Furthermore, it shall govern and regulate all hearings, trials or retrials, and other proceedings to which it is applicable which are commenced on or after the effective date of this Act, except to the extent that its application in a particular action pending when the Act takes effect would not be feasible or would work injustice, in which event former evidentiary rules apply.

“(3) All of the provisions of this Act shall become effective on January 1, 1989.”

Art. 441. Administration of oath to other persons
Before being permitted to function in their respective capacities, the court shall administer an oath, to persons employed to record and transcribe the testimony and proceedings, and to interpreters, to faithfully perform their duties and keep secret the grand jury proceedings.

Official Revision Comment
This article implements the obligation of secrecy stated in Article 434. The penalty for refusal to take the oath of secrecy is that the person will be denied access to the grand jury proceedings.

Historical and Statutory Notes
Source:
Acts 1966, No. 310, § 1.

Art. 442. Evidence to be received by grand jury
A grand jury shall hear all evidence presented by the district attorney. It may hear evidence for the defendant, but is under no duty to do so.

WHEN THE GRAND JURY HAS REASON TO BELIEVE THAT OTHER AVAILABLE EVIDENCE WILL EXPLAIN THE CHARGE, IT SHOULD ORDER THE EVIDENCE PRODUCED.

A grand jury should receive only legal evidence and such as is given by witnesses produced, or furnished by documents and other physical evidence. HOWEVER, NO INDICTMENT SHALL BE QUASHED OR CONVICTION REVERSED ON THE GROUND THAT THE INDICTMENT WAS BASED, IN WHOLE OR IN PART, ON ILLEGAL EVIDENCE, OR ON THE GROUND THAT THE GRAND JURY HAS VIOLATED A PROVISION OF THIS ARTICLE.

Official Revision Comment
(a) The rule of the 1928 Code of Criminal Procedure regarding evidence receivable by a grand jury, appeared in the form of a definite limitation. Former Article 213 stated that the grand jury “can receive no other than legal evidence.” (Emphasis supplied.) However, former Article 213 was construed by the Louisiana Supreme Court as no more than a direction to the grand jury that it must limit itself in its investigations to the consideration of legal evidence. It could not be employed as authority for a review of the legality of the evidence upon which the indictment was found. State v. Simpson, 216 La. 212, 43 So.2d 585 (1949); see also State v. Britton, 131 La. 877, 60 So. 379 (1913), and State v. Dallao, 187 La. 392, 175 So. 4 (1937). To permit a review of the evidence considered by the grand jury would destroy the veil of secrecy which surrounds the proceedings and testimony presented to the grand jury. It would also require a complete recordation and transcription of testimony before the grand jury. It is significant that the 1964 Pennsylvania Rules of Criminal Procedure, Rule 208, prohibits the transcription of testimony before the grand jury.

The Louisiana jurisprudence is codified by employing the word “should” in the grand jury directive of the third paragraph. The article also expressly prohibits the challenging of an indictment on the ground that it is based, in whole or in part, on illegal evidence. Similarly, the American Law Institute Code of Criminal Procedure rule that the indictment must be based on sufficient legal evidence provides that no indictment or conviction shall be set aside on the ground that there was not sufficient legal evidence.

(b) The Louisiana rule under Art. 213 of the 1928 Code, that only legal evidence should be received by the grand jury is retained, even though it is not a ground for challenging the sufficiency of indictments. It will, through appropriate instructions to the grand jury, guide the grand jury in a proper performance of its duty.

Cf. State v. Smalling, 240 La. 915, 125 So.2d 409 (1960), held that where a grand jury illegally compelled a defendant to give self-incriminating testimony, an information based on such unconstitutionally procured testimony was fatally defective.

(c) The first paragraph retains the rule of Article 214 of the 1928 Code that the defendant has no right to have evidence on his behalf received by the grand jury, but that the grand jury may receive it. The rule is rephrased in conformity with a clearer statement of the rule in Sec. 139 of the American Law Institute Code of Criminal Procedure.

(d) The district attorney is the legal advisor to the grand jury, charged with the duty of presenting evidence to the grand jury. Article 64. In recognition of this, the above article, following Section 112﷓4(a) of the 1963 Illinois Code of Criminal Procedure, specifically directs the grand jury to hear all evidence presented to them by the district attorney. Other available evidence which may explain the charge “should” also be produced and considered by the grand jury. The direction to consider additional relevant evidence conforms with Article 214 of the 1928 Code and Section 139 of the American Law Institute Code of Criminal Procedure. The word “should” is employed advisedly, rather than the completely mandatory term “shall,” or the discretionary word “may” of corresponding Section 139 of the American Law Institute Code. The provision for ordering the production of other evidence which may explain the charge against a defendant is consistent with the grand jury’s general investigatory powers under Article 438.

Historical and Statutory Notes
Source:
Former Revised Statute 15:213, 15:214; American Law Institute Code of Criminal Procedure, §§ 138, 139; Acts 1966, No. 310, § 1.

Art. 443. When indictment to be found
The grand jury shall find an indictment, charging the defendant with the commission of an offense, when, in its judgment, the evidence considered by it, if unexplained and uncontradicted, warrants a conviction.

Official Revision Comment

This article follows the source provision, under which an indictment had to rest upon evidence establishing a prima facie case of guilt. Under this rule an indictment may be found either on the basis of evidence adduced from witnesses or on the knowledge of the grand jurors. State v. Dallao, 187 La. 392, 175 So. 4 (1937), appeal dismissed, 302 U.S. 635, 58 S.Ct. 51, 82 L.Ed. 494 (1937), rehearing denied, 302 U.S. 777, 58 S.Ct. 138, 82 L.Ed. 601 (1937); State v. Vial, 153 La. 883, 96 So. 796 (1923).

Historical and Statutory Notes
Source:
Former Revised Statute 15:209; Acts 1966, No. 310, § 1.

Art. 444. Action by grand jury
A. A grand jury shall have power to act, concerning a matter, only in one of the following ways:
(1) By returning a true bill;
(2) By returning not a true bill; or
(3) By pretermitting entirely the matter investigated.

The grand jury is an accusatory body and not a censor of public morals. It shall make no report or recommendation, other than to report its action as aforesaid.
B. At least nine members of the grand jury must concur in returning “a true bill” or “not a true bill.” A matter may be pretermitted by a vote of at least nine members of the grand jury, or as a consequence of the failure of nine of the grand jury members to agree on a finding.
C. A grand jury may make such reports or requests as are authorized by law.

Official Revision Comment
(a) Paragraph A follows Article 210 of the 1928 Code of Criminal Procedure as to the types of action which may be taken by the grand jury after it investigates a crime, and also continues the prohibition against the making of general reports and denunciations. The statement that the grand jury is not a censor of public morals is continued from Article 210 of the 1928 Code, and helps to clarify the meaning of the prohibition.

(b) The return of “not a true bill” does not operate as an acquittal, and does not preclude a subsequent charge of the crime by an information filed by the district attorney or by an indictment returned by a subsequent grand jury. In State v. Vincent, 36 La.Ann. 770, 772 (1884) the court stated that after an indictment has been presented “‘and the grand jury, not being satisfied by the evidence or for other causes, have not found a true bill against the accused, it is the same as if the matter had never been before a grand jury, and the district attorney, in commencing new proceedings, has the right to select indictment or information as provided by the Constitution.’ . . . A contrary contention would give to such a finding of the grand jury, the effect of a valid plea of autrefois acquit, of which it does not possess the essential elements.” (Quoting from State v. Ross, 14 La.Ann. 367 (1859).)

Historical and Statutory Notes
Source:
Former R.S. 15:206, 15:210; Acts 1966, No. 310, § 1.

*****

PRESENTMENT POWER

Presentment. The written notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government. A presentment is an accusation, initiated by the grand jury itself, and in effect an instruction that an indictment be drawn. A written accusation of crime made and returned by the grand jury upon its own initiative in the exercise of its lawful inquisitorial powers, is in the form of a bill of indictment, and in practice is signed individually by all the grand jurors who return it. – Black’s Law Dictionary

Indictments are originated by a prosecutor while Presentments are originated by a grand jury. The constitutional authority for grand jury presentment power is the Constitution’s Fifth Amendment.

No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . Fifth Amendment

Grand juries that are aware of their power to function independently can overcome efforts by district attorneys, sheriffs and other office holders to cover up crimes committed by public servants and their affiliates. Grand juries are lawfully obliged to investigate ALL criminal acts, including those committed under color of law. Under the watchful eyes of competent grand juries, legal privilege and de facto immunity will cease to exist.

Independent investigation of criminal activity by those holding positions in government is the most neglected function of grand juries. It is also the most important.

GRAND JURIES AND THE “OTHER FUNCTION”
Our form of government was designed to assure equality under the law. In theory, no one is immune from prosecution for criminal acts. For that reason, grand juries have been called the People’s Panel and the Fourth Branch of Government. Citizens chosen to exercise the power of grand jurors have a responsibility to investigate and expose all criminal acts including those committed under color of law.
The purpose of this leaflet is to inform grand jurors of their lawful power and duty to independently investigate criminal activity regardless of official position. A grand jury has the authority to demand prosecution by issuing a Presentment where justified. Once armed with this knowledge and the inherent threat to expose such misconduct, grand juries will be able to overcome prosecutors’ efforts to cover-up crimes committed by government agents, officers and officials.

POWER IN CONSTITUTION
The most important and most neglected function of grand juries is to independently investigate criminal activity by those holding positions in government. Authority for doing this is provided in the Fifth Amendment to the U.S. Constitution which says grand juries are to perform two functions: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”
A “Presentment” is defined in Black’s Law Dictionary as, “an accusation, initiated by the grand jury itself, and in effect an instruction that an indictment be drawn. A written accusation of crime made and returned by the grand jury upon its own initiative in the exercise of its lawful inquisitorial powers, is in the form of a bill of indictment, and in practice is signed individually by all the grand jurors who return it.”
The grand jury’s two different functions can be described simply. Presentments are originated by a grand jury. Indictments are originated by a prosecutor. The Presentment power authorizes grand juries to independently investigate and demand prosecution for crimes committed by those otherwise shielded from accountability. When grand juries properly exercise their power, prosecutors and others in government are unable to act above the law. Unfortunately, the power is not adequately exercised.
POWER NOT USED
It is intuitively obvious the only reason grand juries need to issue Presentments is that prosecutors sometimes fail to prosecute. That might happen if crimes have been committed by government agents or officers, if the prosecutor has a corrupt self-interest in protecting wrongdoers by not prosecuting or if the prosecutor is directly involved in committing a crime.
In practice, government agents and officials are often immune from prosecution for three reasons: (1) Citizens chosen to serve on grand juries are generally not aware of their powers and duties (2) Courts and Government lawyers do not tell grand jurors about their power to issue Presentments and such information is deliberately and systematically suppressed, (3) The first two reasons allow government lawyers to have a de facto monopoly on criminal prosecutions.
JURY MANIPULATION
Recent events demonstrate the unrealized potential of grand juries to render justice and control the outcome of national events by preventing cover-ups.
Oklahoma City federal grand juror Hoppy Heidelberg performed an invaluable public service in October, 1995 by providing insight into how grand juries are manipulated. “Prosecutors treated us like idiots. It was like a programming sort of thing. They wanted to make sure he (Timothy McVeigh) looked like the man in the black hat… It was silly.”
Mr. Heidelberg was dismissed by the Court for violating his oath to keep jury matters secret. He had granted interviews to a magazine while the jury continued to work on the federal building bombing case. In subsequent newspaper and radio interviews, Mr. Heidelberg revealed prosecutors did not provide information about the possible involvement of others in the explosion and never mentioned the possibility of multiple bombs.
Mr. Heidelberg was also concerned that jurors were not allowed to directly question witnesses but were required to log their questions, give them to prosecutors and let prosecu- tors ask the screened and modified questions. (See pages 7-8 and 12 of the green “Handbook For Federal Grand Jurors” distributed by the court for the authorized procedure.)
Under those circumstances, and without support from other jurors, a real investigation was circumvented. If an independent grand jury had properly exer- cised its investigatory powers, they could even have prevented the premature demolition of the federal building which destroyed vital evidence.
WHAT CAN GRAND JURIES DO?
In addition to direct questioning of witnesses, grand juries can independently issue subpoenas for witnesses or documents and have the U.S. Marshal serve them. Any twelve Marchers of a panel can vote to issue a Presentment. If the U.S. Attorney refuses to prosecute, the grand jury can request the Court to appoint a special prosecutor.
In 1992, a special grand jury in Denver asked President- elect Bill Clinton to appoint a special prosecutor after U.S. Attorney Michael Norton refused to prosecute Dept. of Energy officials and Rockwell Interna- tional employees for environmen- tal crimes. Judge Sherman Finesilver had threatened twelve grand jurors for violating secrecy rules.
Jurors went public with a demand to prosecute individuals who polluted the air, water and soil with plutonium and other highly toxic substances at the Rocky Flats nuclear weapons plant. The jury’s action resulted in Congressional hear- ings and forced the Judge to release the grand jury’s report to the public. Clinton did not appoint a special prosecutor but took the unprecedented (although maybe unrelated) action of requesting that all U.S. Attorneys resign.
WHERE CRIME CAN BE FOUND
If the English historian Lord Acton was right that power corrupts, the logical place to look for crime and corruption is among those who hold powerful positions in government and are tempted to abuse their power. Citizens in general and the vast majority of grand jurors have been passive and derelict in performing the duties of citizenship. The Congressional hearings by politicians are not an effective method to discover and weed out the broad spectrum of criminal conduct and corruption by government agents.
That is the job of the grand jury.