Grand Jury Litigation Guide - About Virginia Grand Juries

The Grand Jury Litigation Guide contains the information you'll need to investigate, uncover and challenge unconstitutional discrimination in the selection of the grand jury that indicted your client.

I. HOW VIRGINIA GRAND JURIES WORK

A. Function of Virginia Grand Juries

The function of a Virginia grand jury is two-fold. First, it must "consider bills of indictment prepared by the attorney for the Commonwealth and. . .determine whether as to each such bill there is sufficient probable cause to return such indictment 'a true bill.'" Second, the grand jury must "investigate and report on any condition that involves or tends to promote criminal activity, either in the community or by any governmental authority, agency or official thereof." Va. Code § 19.2-191.

B. When and How Impaneled

The Virginia Code provides that "there shall be a regular grand jury at each term of the circuit court of each county and city." Id. at § 19.2-193. Term dates vary among judicial circuits. See http://www.courts.state.va.us/courts/circuit.html (listing term dates for each judicial district in Virginia). The entire body comprises at least five, but no more than seven, citizens of the Commonwealth who are at least 18 years-old. Id. at § 19.2-195. Grand juries in Virginia are comparatively smaller than those of many other states, some of which have grand juries containing as many as 23 members (e.g., Maryland, Massachusetts, New York, Vermont). Virginia grand jurors must be residents of Virginia for at least one year, and residents of the county or corporation in which the court sits for at least six months. Id.

Each year in June, July, or August, the judge or judges presiding over the circuit court of each county or city select at least 60, but no more than 120, Virginia citizens who are at least 18 years of age. Id. at § 19.2-194. Names often are selected from voter registration lists or drivers' license records. The statute does not require that the process be randomized, nor does it require that the grand jury represent a cross-section of the community. Rather, it provides that prospective jurors be persons of "honesty, intelligence and good demeanor and suitable in all respects to serve as grand jurors." Id.

The judge(s) then gives the list of potential jurors to the clerk of court. Id. At least 20 days in advance of each term, the clerk issues a venire facias to the sheriff, charging him to summon at least five, but no more than nine, persons from the list to serve on the grand jury for that term. Id. No person is asked to serve more than once until all others have served. Id. From the group of individuals who are summoned, the court selects a foreman. Id. at § 19.2-197. The statute does not prescribe guidelines for the selection of a foreman, neither does it require that the court select a foreman using a randomized process. See id. (articulating the requirements for selecting a foreman).

C. Duties of the Grand Jury

Grand juries are charged with the duty to "inquire of and present all felonies, misdemeanors and violations of penal laws committed within the jurisdiction of the respective courts wherein it is sworn." Id. at § 19.2-200. It is the responsibility of the attorney for the Commonwealth to present to the grand jury evidence supporting a finding of probable cause that the person in question committed the alleged violation. Id. at § 19.2-201. The grand jury hears only the Commonwealth's side of the case, and at least four grand jurors must concur in the finding or making of an indictment or presentment. Id. at § 19.2-202. An indictment may be found or a presentment made upon the information of two or more members of the grand jury, or upon the testimony of witnesses it calls or who are sent to it by the court. Id. at § 19.2-202. The Commonwealth may seal the indictment until the defendant is arrested by making an ex parte motion supported by good cause. Id. at § 19.2-192.1.

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