106.Grand Jury Proceedings
Key Concepts
- The primary function of the grand jury is to determine whether probable cause exists to return a true bill of indictment charging the defendant with a criminal offense.
- The grand jury may also be used to investigate an offense, either upon the grand jury’s own initiative or through a prosecutor convening a special grand jury to investigate drug offenses.
- Technical errors committed by the grand jury rarely cause an indictment to be fatally defective.
Overview of Grand Jury Functions
A grand jury is a group of eighteen people who are impaneled by the superior court for a term of twelve months (nine grand jurors are replaced every six months). G.S. 15A-622(b). Two grand juries may exist concurrently in a county. The senior resident superior court judge may set the terms of grand jurors at six months if grand jury service is placing a disproportionate burden on them (if that occurs, one-half of the grand jurors are replaced every three months).
A grand jury’s primary responsibility is to hear evidence in felony cases (and related misdemeanors) submitted to them by a prosecutor in a bill of indictment (G.S. 15A-627) and to decide whether there is probable cause for the charge—that is, whether to return a “true bill” of indictment. G.S. 15A-628. At least twelve votes are required to return a true bill. G.S. 15A-623(a).
The grand jury has no authority to call its own witnesses. Only witnesses who have been notified or formally subpoenaed by the judge or prosecutor may appear before the grand jury. G.S. 15A-626. Grand jury proceedings are secret, and the presiding judge may order that a bill of indictment be sealed and kept secret until the defendant is arrested or appears before the court. G.S. 15A-623. Unless the indictment has been sealed, the presiding judge must immediately cause the indictment to be served on the defendant. G.S. 15A-630; but see State v. Crudup, 277 N.C. App. 232 (2021) (finding no prejudicial error under the statute where "although Defendant was not timely served with the indictment, such delay was not jurisdictional, and he has not shown he was prejudicially harmed by the delay").
A grand jury must also inspect the jail and report the results of its inspections to the court. G.S. 15A-628(a)(5).
See generally G.S. 15A-621 through -630 (grand jury proceedings and operation); G.S. 15A-641 -646 (form and use of indictments, informations and presentments); G.S. 15-144 through -151 (content of indictments for specific crimes); and G.S. 15-153, 15-155, and 15A-623(c) (consequence of particular defects in indictments).
Grand Jury Investigations; Issuance of Presentment
Upon request by the prosecutor or the presiding judge, or upon its own initiative, a grand jury may investigate any offense. If it finds probable cause to accuse a person of an offense as a result of its investigation, it may issue a presentment. G.S. 15A-628(a)(4). A presentment is not a criminal pleading and does not institute a criminal proceeding. G.S. 15A-923(a). A presentment is an accusation of crime made by the grand jury, instructing the district attorney to investigate the case and submit a bill of indictment when appropriate. G.S. 15A-641(c). The superior court has original jurisdiction to try a misdemeanor when the charge is initiated by presentment and a bill of indictment is thereafter returned. State v. Birdsong, 325 N.C. 418 (1989); State v. Gunter, 111 N.C. App. 621 (1993); State v. Cole, 294 N.C. 304 (1978); G.S. 7A-271(a)(2). The prosecutor may not submit both a presentment and a corresponding proposed indictment to the grand jury at the same time, because the indictment is supposed to be in response to, and after further investigation prompted by, the grand jury's presentment. See G.S. 15A-641; State v. Baker, 263 N.C. App. 221 (2018).
When is presentment used?
Presentments are somewhat rare in practice. While it is possible for the grand jury to act entirely on its own in issuing a presentment, the process more often begins with the prosecutor writing a “draft” or “proposed” presentment, which is submitted to the grand jury along with the testimony of a witness. So in effect, the prosecutor is asking the grand jury (through a draft presentment) to tell the prosecutor (through an issued presentment) to come back and ask the grand jury (though a proposed indictment) to institute a charge (through an issued indictment).
Why would the state seek a presentment, rather than submitting a normal indictment to the grand jury? Usually, this occurs because the state wishes to initiate a misdemeanor prosecution in superior court, rather than district court: “the State might use the presentment process when it expects a district court trial to be lengthy, involve several witnesses, etc., and if the defendant is convicted, an appeal for a trial de novo in superior court is highly likely. So one trial instead of two may ultimately save time and effort. Other reasons include cases that involve public figures or officials or cases that have received significant publicity.” Bob Farb, "Indicting for a Misdemeanor in Superior Court After a Grand Jury Presentment," N.C. Criminal Law Blog, Oct. 16, 2013.
Drug-Trafficking Investigative Grand Jury
A district attorney, with the approval of a committee of at least three members of the North Carolina Conference of District Attorneys and with consent of the Attorney General, may request formation of an investigative grand jury to investigate suspected drug-trafficking (G.S. 90-95(h) and (i)) and continuing criminal enterprise (G.S. 90-95.1) offenses under procedures described in G.S. 15A-622(h). Unlike normal grand jury proceedings involving other crimes, a prosecutor is present in the grand jury room and examines witnesses. G.S. 15A-623. The prosecutor may grant immunity to witnesses who testify, and may make selective disclosures of the proceedings to law enforcement officers as needed. Grand jury testimony may be used at trial when it is relevant and otherwise admissible; its use is not limited to impeachment or corroboration. State v. Minter, 111 N.C. App. 40 (1993) (grand jury testimony properly used to impeach witness). Also note that unlike regular grand jury proceedings, a transcript of these proceedings will be made and provided to the prosecutor pursuant to G.S. 15A-623(h), and that record may be subject to discovery under G.S. 15A-623(h)(2) and 15A-903.
Grand Jury’s Venue for Issuing Indictment or Presentment
The grand jury has venue to issue an indictment or presentment in any case where the county in which it is sitting has venue for trial under the laws concerning trial venue. G.S. 15A-631; State v. Flowers, 318 N.C. 208 (1986); State v. Brown, 85 N.C. App. 583 (1987); State v. Carter, 96 N.C. App. 611 (1989). See the related entries on Jurisdiction and Venue for more information.
Effect of Alleged Errors in Grand Jury Proceedings
- Failure to Call All Witnesses Listed
An indictment is not defective because only one of two witnesses listed on indictment was called to testify. State v. McLain, 64 N.C. App. 571 (1983). - Absence of Prosecutor’s Signature on Indictment
A prosecutor’s failure to sign an indictment does not invalidate the indictment. G.S. 15A-644(a)(4) (“An indictment must contain […] the signature of the prosecutor, but its omission is not a fatal defect”); State v. Mason, 279 N.C. 435 (1971). Additionally, if the indictment was signed by an unauthorized person other than the prosecutor (e.g., a former prosecutor who left the office before the grand jury heard the case), the invalid signature should be considered mere surplusage rather than a fatal defect. See State v. Sellers, 273 N.C. 641 (1968) (decided prior to the adoption of G.S. 15A-644, but holding that "where an indictment is signed by anyone without authority, the signature is mere surplusage and cannot vitiate it"). - Grand Jury Foreperson’s Errors
- An indictment is not defective because there was a failure to mark the names of witnesses who testified before the grand jury. G.S. 15A-623(c); State v. Sinclair, 191 N.C. App. 485 (2008); State v. Dukes, 305 N.C. 387 (1982).
- A grand jury foreperson’s failure to attest the concurrence of at least 12 grand jurors in returning a true bill in compliance with G.S. 15A-644(a)(5) does not invalidate the indictment because the foreperson signed the indictment attesting that a true bill was returned. State v. House, 295 N.C. 189 (1978).
- Foreperson's inadvertent failure to sign the indictment did not invalidate it, where the “report of grand jury” for the session, signed by foreperson, confirmed that a true bill of indictment was returned against the defendant. State v. Spinks, 24 N.C. App. 548 (1975).
- An indictment returned by grand jury is not defective even though the foreperson failed to mark the box indicating a true bill or not a true bill when the court’s minutes showed that all bills of indictment were returned as true bills. State v. Midyette, 45 N.C. App. 87 (1980).
- Indictment May Be Based Solely on Hearsay Testimony
An indictment may be based solely on hearsay testimony, such as a law enforcement officer who investigated a crime but did not have first-hand knowledge. State v. Wall, 273 N.C. 130 (1968).
For a discussion of case law and related issues on indictments or other types of criminal process, see the related entry on Criminal Pleadings.
Reconvening Grand Jury
At the request of the prosecutor, or upon the court's own motion, a superior court judge may order the grand jury reconvened from a recess "for the purpose of dealing with a matter requiring grand jury action." G.S. 15A-622(g). Assuming without deciding that a district attorney’s application under G.S. 15A-622(g) to reconvene a grand jury must be in writing, the court in State v. Parker, 119 N.C. App. 328 (1995), ruled that a district attorney’s oral application to reconvene a grand jury was a technical violation that did not make an otherwise valid indictment defective.
