RULE 6. THE GRAND JURY(a) Formation of the Grand Jury.
(1) Formation at a Regular Term. The judge of the court authorized by law to charge the grand jury and to receive the report of that body shall, on the first day of each term of court at which a grand jury is required to be impaneled, direct the names of all the qualified jurors in attendance upon the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The twelve qualified jurors whose names are first drawn shall, with the foreperson, be the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
(2) Formation at a Special Term. The judge presiding at any special term of the court may impanel a grand jury in the same manner and of like powers as at a regular term.
(3) Formation of Concurrent Grand Juries. If the expeditious administration of justice so requires, the court may likewise impanel a second grand jury to operate concurrently with the first.
(4) Oath of Grand Jurors. The following oath shall be administered to all members of the grand jury including the foreperson: "You as members of the grand jury do solemnly swear (or affirm) that you will diligently inquire, and true presentment make, of all offenses given you in charge, or otherwise brought to your knowledge, committed or triable within this county; that you will keep secret the state's counsel, the other jurors', and your own; that you will present no person from hatred, malice, or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof, but that you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God".
(5) Charge to the Grand Jury. After the grand jury has been impaneled and sworn, the judge shall instruct it concerning its powers and duties and expound the law to it as the judge shall deem proper.
(b) Vacancies on the Grand Jury.
(1) Vacancy as to Grand Juror. If any grand juror becomes unable from any cause to serve out the term, or is excused on any ground, the court shall fill the vacancy from the original panel, if any, or if none from other qualified veniremen selected as in Subdivision (2).
(2) Vacancy as to Grand Jury Foreperson. If for any reason the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one according to Subdivision (g) until such time as the foreperson is able to serve or until expiration of his or her term.
(c) Disqualification of Grand Jury by Interest.
(1) Disqualification. No member of the grand jury shall be present during or take part in the consideration of a charge or the deliberation of the other jurors thereon if the member:
(A) is charged with an indictable offense; or
(B) is a prosecutor; or
(C) the offense was committed against the member's person or property; or
(D) is related to the person charged or to the victim of the alleged crime by blood or marriage within the sixth degree, computing by the civil law.
(2) Filling Vacancy Created by Disqualification. If due to the exclusion of an interested grand juror the jurors in the investigation of any matter are reduced below the number of twelve (12), the vacancy shall be filled according to Subdivision (b) only during such investigation.
(d) Powers of the Grand Jury. The grand jury shall have inquisitorial powers over and shall have authority to return a presentment of all indictable or presentable offenses found to have been committed or to be triable within the county. The grand jurors are entitled to free access, at all proper hours, to all county offices and buildings and to the examination, without charge, of all records and other papers of any of the county officers in any way connected with their duties.
(e) Duties of the Grand Jury. It is the duty of the grand jury to:
(1) inquire into, consider, and act upon all criminal cases submitted to it by the district attorney general; and
(2) inquire into any report of a criminal offense brought to its attention by a member of the grand jury; and
(3) inquire into the condition and management of prisons and other county buildings and institutions within the county; and
(4) inquire into the condition of the county treasury; and
(5) inquire into the correctness and sufficiency of the bonds of county officers; and
(6) inquire into any abuse of office by state or local officers; and
(7) report the results of its actions to the court.
(f) Individual Grand Juror's Duty to Inform. If a member of the grand jury knows or has reason to believe that a public offense, indictable or triable in the county, has been committed, he or she shall declare the same to the other jurors, who shall thereupon investigate it.
(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson. The judge of the court authorized by law to charge the grand jury and to receive the report of that body shall appoint the foreperson of the grand juries in the counties of their respective jurisdictions. If concurrent grand juries are impaneled, a foreperson shall be appointed for each grand jury. Every person appointed as a foreperson shall possess all the qualifications of a juror. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment; however, in the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time. It shall be the duty of forepersons of grand juries to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced; and such forepersons are directed out of term to advise the district attorney general with respect to law violations and furnish names of witnesses, whom the district attorney general may, if he or she deem proper, order summoned to go before the grand jury at the next term. In term time, the foreperson or the district attorney general may order the issuance of subpoenas for witnesses to go before the grand jury. The foreperson may vote with the grand jury and this vote shall count toward the twelve necessary for the return of an indictment. A foreperson shall receive as compensation a sum to be determined by the county legislative body, to be paid out of the county treasury in the same manner as jurors are paid, and shall receive no other compensation for these services. Such compensation shall not be less than ten dollars ($10.00) per day for each day the grand jury of which he or she is foreperson is actually in session and such sum shall not be diminished during the term of appointment.
(h) Duties of District Attorney General Regarding Grand Jury.
(1) Attendance. Whenever required by the grand jury, the prosecuting attorney may attend before it for the purpose of giving legal advice as to any matters cognizable by them, but shall not be present, nor shall any other officer or person when the question is taken upon the finding of an indictment.
(2) Preparation of Indictments. The district attorney general shall have indictments ready for the grand jury in all cases where the defendants have been bound over to answer a criminal charge, or are in the custody of the sheriff, so that the same may be acted upon without delay, and the witness dismissed until the day set for trial.
(i) Duties of Clerks Regarding Grand Jury.
(1) Furnishing Information to District Attorney General. The clerk shall furnish the district attorney general, on the first day of the term, with the names of the prosecutor, defendant, and witnesses in each case.
(2) Issuing Subpoenas for Witnesses. The clerk of the court, on the application of the grand jury, shall issue subpoenas, in such cases, for any witnesses the jury may require to give evidence before them.
(3) Issuing Process Between Terms. The district attorneys general may call upon the clerks of their various courts for process, between the terms of their respective courts, to secure the attendance of witnesses before the grand juries on the first day of the succeeding term if, in their opinion, it is necessary to secure the ends of justice and protect the interests of the State.
(j) Witnesses Before Grand Jury.
(1) Sending for Witnesses by Grand Jury. The grand jury shall send for witnesses whenever they, or any of them, suspect that an indictable offense has been committed.
(2) Process for Grand Jury Witnesses. Process for witnesses sent for by a grand jury shall be directed to the sheriff or other lawful officer, and may also be executed and returned, during the term of his or her appointment, by any officer appointed by the court to wait upon the grand jury.
(3) Failure of Witnesses to Attend. Such witnesses, being subpoenaed and failing to attend, will be liable, and may be proceeded against as other defaulting witnesses.
(4) Oath of Grand Jury Witnesses. Witnesses thus summoned may be sworn by the clerk, or by the foreperson of the grand jury, who shall indorse the fact on the subpoena, and sign his or her name to such indorsement officially.
(5) Power of Grand Jury Foreperson to Administer Oath. The foreperson of the grand jury shall have power to administer oaths to all witnesses brought before the grand jury to testify as to the violations of the criminal laws in all cases where the clerks of the criminal and circuit courts may administer said oath.
(6) Compelling Witnesses to Testify. A person refusing to testify before the grand jury may be compelled to testify by the court on motion of the district attorney general and upon a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify.
(7) Immunity of Certain Witnesses From Prosecution. No witness shall be indicted for any offense in relation to which the witness has been compelled to testify before the grand jury by the district attorney general.
(8) Detention of Grand Jury Witnesses Sought to Be Limited. The district attorney general shall endeavor to so manage the state's business as to detain witnesses only one (1) day for appearance before the grand jury.
(9) Limited Claim of Attendance of Witnesses Living Within Ten Miles. Witnesses who live within ten (10) miles of the court can claim only one (1) day's attendance before the grand jury, unless longer detained by order of the court.
(k) Secrecy of Proceedings; Exception.
(1) Grand Jury Proceedings Secret. Every member of the grand jury shall keep secret the proceedings of that body, and the testimony given before them except as provided in subdivision (2) below.
(2) Exception to Rule of Secrecy. A member of the grand jury may be required by the court to disclose the testimony of a witness examined before them, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any witness charged with perjury.
(l) Grand Jurors as Petit Jurors.
(1) When Grand Jurors May Serve as Petit Jurors. Except as provided in subdivision (2), the grand jurors may act as petit jurors in either civil or criminal cases when not engaged in the business of the grand jury.
(2) When Grand Jurors May Not Serve as Petit Jurors. No grand juror may sit as a petit juror for any cause involving a defendant in any criminal cause heard by the grand jury of which he or she is a member.
This rule substantially reflects existing law, but with some important differences. The provision allowing concurrent grand juries is new. The voting power of the grand jury foreperson is made explicit. The judge's charge to the grand jury "shall instruct it concerning its powers and duties and expound the law to it as the judge shall deem proper." The Commission thus adopted the language of T.C.A. s 40-1601 to be included in the rules, but deliberately did not include the provisions of T.C.A. ss 40-1602, 40-1603 and 40-1604 requiring special charges upon a multiplicity of offenses that often are totally irrelevant to the inquiries of a given grand jury. The Commission was of the opinion that every grand jury need not be charged on all of the laws set out (often in very general terms, e.g., the "laws regulating the operation of vehicles upon streets and highways"), but that the judge could exercise discretion as to what was likely to be relevant "and expound the law . . . as the judge shall deem proper."
Witness immunity provided in Rules 6(j)(6) and (7) requires comment. The first provision says: "A person refusing to testify before the grand jury may be compelled to testify by the court on motion of the District Attorney General and upon a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify." This rule is triggered by the refusal of a witness to testify before a grand jury.
The second says: "No witness shall be indicted for any offense in relation to which the witness has been compelled to testify before the grand jury by the District Attorney General." This is substantially what is contained in T.C.A. s 40-1623, which says "Immunity of witnesses.--No witness shall be indicted for any offense in relation to which he has testified before the grand jury." Note that the rule says "has been compelled to testify . . . by the District Attorney General" rather than "has testified."
Rule 6(j)(6) carries the subtitle "Compelling Witnesses to Testify." It provides a tool whereby one can be required to give up an asserted Fifth Amendment right, but not until the witness is explicitly given a grant of immunity from prosecution (not just indictment, so one already indicted could be so compelled) for any offense in relation to which the witness has been ordered to testify.
Rule 6(j)(7) is subtitled "Immunity of Certain Witnesses from Prosecution" and is no more than T.C.A. s 40-1623, clarified by language expressly limiting the immunity to indictment for offenses about which the witness was compelled to testify by the District Attorney General. The statute, as construed by our Supreme Court, gave immunity only to witnesses brought before the grand jury by compulsion. Colley v. State, 179 Tenn. 651 (1943); Wireman v. State, 146 Tenn. 676 (1922). This rule grants immunity only to those witnesses compelled to testify by the District Attorney General, or the District Attorney General's assistant or agent, by virtue of subpoena or order of the judge. The Commission does not desire to depart from the scope of the immunity given under T.C.A. s 40-1623, and the cases decided thereunder, expressly further limiting the immunity by the language "has been compelled to testify . . . by the District Attorney General."
The Commission views the immunity rules as being limited strictly to the instances addressed by them. Rule 6(j)(6) is triggered only where there is a Fifth Amendment or other refusal of a witness to testify and an explicit court order to do so; Rule 6(j)(7) is triggered only when the District Attorney General compels the witness to testify.
The General Assembly, by Chapter 727, Public Acts, effective July 1, 1978, has provided a procedure designed to give citizens free access to the local grand jury. Under the Act, persons applying to testify before the grand jury are not immune from prosecution based upon or related to their testimony, except under express grant of immunity by the grand jury. The Act expressly states that it is supplemental to existing law.