Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
GRAND JURY (ME154)
Discoverability of grand jury testimony
Crim. R. 6 -- The Grand Jury.
Crim. R. 16(B)(1)(a)(iii) -- Testimony of the
defendant or codefendant before the grand jury must be furnished
Revised Code Chapter 2313 -- Commissioners of
Revised Code Chapter 2939 -- Grand Juries.
State v. Grewell (1989), 45 Ohio St. 3d 4
-- Syllabus: "Crim. R. 22 applies to grand jury proceedings. Pursuant to Crim.
R. 22 grand jury proceedings in felony cases must be recorded."
State v. Lawson (1992), 64 Ohio St. 3d
336, 345 -- Failure to record grand jury testimony is harmless error where
defendant has failed to demonstrate a particularized need for disclosure.
State, ex rel. Shoop, v. Mitrovich (1983),
4 Ohio St. 3d 220 -- The common pleas court may use its contempt powers to
pursue compliance with its exercise of supervisory powers over the grand jury,
as set forth in R.C. 2939.01, et seq. Prohibition does not lie to control
the court's discretion in the exercise of these powers.
State v. Roe (1971), 26 Ohio St. 2d 242 --
Syllabus: "The privilege to withhold from disclosure the identity of an informer
may be invoked by a police officer in the course of a grand jury proceeding
where the inquiry is not directed to the determination of the possible guilt of
a specified person, but rather a general quest as to who might have committed a
crime, and a police officer invoking the privilege in such circumstances may not
be held in contempt."
Kaiser v. Hall (1970), 24 Ohio St. 2d 23
-- Grand jury witness was found in contempt and jailed for refusal to answer
questions. Habeas action became moot upon his release.
In re Grand Jury (1996), 76 Ohio St. 3d
236 -- Applying Polikoff v. Adam
(1993), 67 Ohio St. 3d 100, the denial of a motion to quash a grand jury
subpoena duces tecum is not a final appealable order. Grand jury
proceedings existed at common law, and thus are nor special proceedings.
State v. Adams (1982), 69 Ohio St. 2d 120
-- When a juvenile has been bound over for prosecution as an adult, the grand
jury is empowered to return any indictment under the facts submitted to it and
is not confined to returning indictments only on charges originally filed in the
In re Grand Jury Witness Subpoena of Abraham
(1993), 92 Ohio App. 3d 186 -- (1) Reporter could not refuse to testify
concerning non-confidential, non-source, material which had already been
published. (2) Prosecutor was not required to demonstrate reporter had relevant
information unavailable from any other source or that there was a compelling
need for that information. (3) Failure of prosecutor to submit a list of
interrogatories was harmless where there was a blanket refusal to answer
questions. Contempt finding affirmed.
State v. Aronson (1993), 91 Ohio App. 3d
714 -- Indicted defendants successfully moved to quash grand jury subpoenas for
business records of bingo operation which had not been located during execution
of search warrants. While as custodians of the records they could be compelled
to produce them, the state was required to first make some showing that the
requested documents were in the subpoenaed party's possession or subject to his
control. Otherwise, compliance with the subpoena could amount to
State v. Vitale (1994), 96 Ohio App. 3d
695 -- Indictment alleged date of offense to be on or about June 14th. Bill of
particulars further limited time to 12:00 p.m. on that date. Amendment of
indictment to specify time between June 14th and June 21st was improper as it
must be presumed that the evidence presented to the grand jury did not cover any
time other than June 14th.
State v. Fryling (1992), 85 Ohio App. 3d
557 -- Amendment of indictment by agreement to include a specification alleging
a prior conviction for an offense of violence, as a part of plea negotiations,
waived the defendant's right to have the specification presented to the grand
jury. State v. Dilley
(1989), 47 Ohio St. 3d 20, distinguished.
State v. Cook (1983), 11 Ohio App. 3d 237
-- When a potential defendant is called to testify before a grand jury,
Miranda type warnings must be given. If during questioning the witness
asserts his privilege against self incrimination, that decision must be honored
unless immunity is granted or an effective waiver is obtained. Grand jury
testimony received from a putative defendant without such warning may not be
used against him in a subsequent prosecution.
State v. Childress (1990), 66 Ohio App. 3d
491 -- Constitutional (Miranda
type) warnings are sometimes required when a witness appears before a grand
jury. Witness called before the same grand jury a second time, and charged with
perjury on that basis, should have been advised of her privilege to refuse to
answer questions which might further incriminate her.
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Rose v. Mitchell (1979), 443 U.S. 545 -- A
defendant's right to equal protection is denied when racial discrimination is
exercised in the selection of members of the grand jury.
Campbell v. Louisiana (1998), 523 U.S. 392
-- A white defendant has standing to raise equal protection and due process
challenges claiming exclusion of blacks in the selection of grand jurors. Though
the primary factual allegation was that for more than sixteen years no black
person had served as grand jury foreman, the foreman was chosen by the judge
apart from the general draw, thus making the issue one of selecting jurors and
not just which juror was to serve as foreman.
Vasquez v. Hillery (1986), 474 U.S. 254 --
Intentional racial discrimination in the selection of the grand jury requires
reversal, even if prejudice is not shown. In effect overrules State v.
Strodes (1976), 48 Ohio St. 2d 113 -- At 115-116: "Unless prejudice to the
defendant or the systematic and intentional exclusion of a group is shown, we
will not reverse a judgment because of minor and technical defects in
Castaneda v. Partida (1976), 430 U.S. 482
-- Underrepresentation of Mexican-Americans on grand juries over an eleven year
period established a prima facie case of grand jury discrimination, which was
not rebutted by other evidence explaining the disparity.
State v. Fulton (1991), 57 Ohio St. 3d 120
-- Paragraph two of the syllabus: "In order to obtain standing to challenge a
grand jury array under the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution, a defendant must prove the procedure employed
in the selection process resulted in a substantial underrepresentation of his or
her race or of the identifiable group to which he or she belongs and the group
is one that is a recognizable, distinct class, singled out for different
treatment under the laws, as written or applied. (Castaneda v. Partida
, 430 U.S. 482, applied and followed.)
Hobby v. United States (1984), 468 U.S.
339 -- Discrimination in the selection of the grand jury foreman is not a basis
for reversal, provided the composition of the grand jury as a whole serves the
defendant's due process interests.
State v. Puente (1982), 69 Ohio St. 2d 136
-- Improper but not reversible error to routinely excuse doctors, dentists and
State v. Gunther (1998), 125 Ohio App. 3d
226 -- Elected officials charged with overseeing selection of grand jurors
failed to certify that proper procedures were followed, as required by
2913.21. Trial court abused its discretion by not hearing untimely motion
raising this issue. Remedy is dismissal as the error is structural in nature,
thus not subject to the harmless error analysis applied to trial error, citing
Vasquez v. Hillery (1986), 474 U.S. 254.
State v. Freeman (1985), 20 Ohio St. 3d 55
-- Dismissal of indictment is not required where judge participated in selection
of the grand jury and later gave brief and innocuous testimony before the grand
jury which did not bear directly on the charges returned.
State v. Ross (1982), 6 Ohio App. 3d 25 --
(1) Grand jurors may be replaced by other qualified persons after the initial
panel has been sworn. (2) Minor irregularities in the selection of the grand
jury do not warrant an indictment being set aside, provided the grand jurors had
the requisite qualifications. (3) Where it is claimed that an attorney appointed
as a special assistant to aid a grand jury investigation has a conflict of
interest, the defendant must demonstrated that he conducted himself is such a
manner as to demonstrate actual bias or conflict of interest.
State v. Sublett (1980), 70 Ohio App. 2d
252 -- Even though jury commissioner may be criminally liable for shortcomings
in process of selection of grand jury members, defendant must demonstrate jurors
selected were not otherwise qualified to serve in order to obtain relief.
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Regularity of proceedings
State v. Baker (2000), 137 Ohio App. 3d
628, 644-646 -- The rules of evidence do not apply to grand jury proceedings
except with respect to privilege. Defendant claimed common-law wife testified in
violation of spousal privilege. In order to defeat the indictment because of the
grand jury's exposure to improper information, defendant had to show the grand
jury lacked other non-privileged testimony that could have formed the basis for
the indictment. Trial court did not review entire grand jury transcript and that
transcript is not before the court of appeals, so denial of motion to dismiss is
State v. Brown (1988), 38 Ohio St. 3d 305
-- A grand jury may be composed of nine people, as allowed by rule, and not
fifteen as required by statute. Paragraph one of the syllabus: "The number of
jurors on a grand jury does not affect a substantive right. Accordingly, Crim.
R. 6(A) controls the issue of how many grand jurors are needed to issue an
indictment. R.C. 2939.02 and
2939.20 are superseded insofar as they conflict
with this rule. (Wells v. Maxwell
, 174 Ohio St. 198..., approved and followed.) Also see State v.
Jeurgens (1977), 55 Ohio App. 2d 104; State v. Wilson (1978), 57 Ohio
App. 2d 11; State v. Wilkerson (April 19, 1979), Franklin Co. App. No.
78AP-539, unreported (1979 Opinions 959, 973-975).
Lawn v. United States (1958), 355 U.S. 339
-- An indictment, valid on its face, is not subject to challenge on the basis
that the grand jury acted on information obtained in violation of the
defendant's privilege against self-incrimination. But see United States v.
Calandra (1974), 414 U.S. 338 at 346: "...the grand jury may not force a
witness to answer questions in violation of that constitutional guarantee.
Rather, the grand jury may override a Fifth Amendment claim only if the witness
is granted immunity co-extensive with the privilege against self-incrimination.
Kastigar v. United States (406 U.S. 441) Similarly, a grand jury may not
compel a person to produce books and papers that would incriminate him. Boyd
v. United States
116 U.S. 616, 633-635 (1886). Cf. Couch v. United States, 409 U.S. 322
United States v. Calandra (1974), 414 U.S.
338 -- A grand jury witness may not invoke the exclusionary rule as a basis for
refusing to answer questions, nor is the prosecution precluded from using
illegally seized evidence in proceedings before the grand jury.
State v. Muenick (1985), 26 Ohio App. 3d 3
-- The evidence rules do not apply to proceedings before grand juries, except as
to privilege. [Evid. R. 101(C)(2).] However, statements made in presence of
third parties are not privileged and even if privileged communication was
disclosed, the indictment would not be invalid.
State, ex rel Kynard, v. Court of Common Pleas
of Lucas County (1980), 62 Ohio St. 2d 308 -- Prohibition does not lie to
prevent court from proceeding to trial on indictment returned in allegedly
irregular grand jury proceedings.
State v. Thomas (1992), 80 Ohio App. 3d
452 -- Grand jury foreman's casual acquaintance with victim not found to have
State v. Stull (1991), 78 Ohio App. 3d 68
-- Investigator employed by the prosecutor's office was present in the jury room
and performed duties beyond operating the recording device. Opinion implies this
was improper, but holds indictment should not have been dismissed as it was not
demonstrated that the defendant was prejudiced.
State v. Asher (1996), 112 Ohio App. 3d
646 -- Immunity may not be conferred by a prosecutor simply saying so when a
witness is called before a grand jury. A written request must be made to the
court of common pleas, which must then determine whether immunity would further
the administration of justice, and inform the witness, on the record, that by
answering questions, the witness will receive immunity.
In re Special Grand Jury Investigation
Concerning Organic Technologies (1999), 84 Ohio St. 3d 304 -- Target of
investigation filed a motion alleging the state improperly disclosed grand jury
information in violation of Crim. R. 6(E), but counsel for target was excluded
from hearing. Applying United States v. Eisenberg (11th Cir., 1988), 711
F.2d 959 counsel was improperly excluded.
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Discoverability of grand jury testimony
State v. Godfrey,
181 Ohio App. 3d 75,
2009-Ohio-547 – State appeals order that grand jury transcript be provided
the defense. Court concludes that the defendant failed to demonstrate a
particularized need. (1) As to the testimony of a victim, who may have changed
her account, defendant has the remedy of in camera review of her grand jury
testimony for inconsistencies after she has testified at trial. (2) As to
medical testimony, defense counsel‘s assessment of sufficiency based on what was
disclosed in open file discovery does not amount to a particularized need. The
proper remedy is further discovery, including issuance of subpoenas to anyone
who may be uncooperative. At trial, a Rule 29 motion is the test for
State v. Coley 93 Ohio St. 3d 253,
2001-Ohio-1340 -- Case was initially indicted as a non-capital murder,
but was reindicted following criticism by some police officers. Particularized
need was not demonstrated for disclosure of grand jury minutes as court
concludes reindictment was based on further investigation.
State v. Burroughs, 165 Ohio App. 3d
2005-Ohio-6411 -- Disclosure of grand jury testimony is controlled by Crim.
R. 6(E). Though a copy had been prepared at the judge's request, it was error to
review it for inconsistencies pursuant to Crim R. 16(B)(1)(g) without first
satisfying Rule 6.
Horger, 170 Ohio App. 3d 383,
2007-Ohio-665 -- Based on inconsistencies between the bill
of particulars and a transcript of an interview of the victim,
the court ordered the grand jury testimony be turned over to the
defense. This was premature as the court needed to first review
the grand jury transcript in camera to determine whether a
particularized need for disclosure actually exists.
State v. Greer (1981), 66 Ohio St. 2d 139
-- Paragraphs one, three and four of the syllabus: "(1) Disclosure of grand jury
testimony, other than that of the defendant and co-defendant, is controlled by
Crim. R. 6(E) and not by Crim. R. 16(B)(1)(g), and the release of any such
testimony for use prior to or during trial is within the discretion of the trial
court. (3) Whether particularized need for disclosure of grand jury testimony is
shown is a question of fact; but generally, it is shown where from a
consideration of all the surrounding circumstances it is probable that the
failure to disclose the testimony will deprive the defendant of a fair
adjudication of the allegations placed in issue by the witness' trial testimony.
(4) When defense counsel asserts and establishes to the satisfaction of the
trial court a particularized need for certain grand jury testimony, the trial
court, along with the defense counsel and counsel for the state, shall examine
the grand jury transcript in camera
and give to defense counsel those portions of the transcript relevant to the
state's witness' testimony at trial, subject to the trial court's deletion of
extraneous matter, and issuance of protective orders where necessary." Also see
State v. Tenbrook (1987), 34 Ohio Misc. 2d 14; State v. Roberts
(1976), 50 Ohio App. 2d 237; State v. Roberts (1976), 50 Ohio App. 3d
237; Dennis v. United States (1966), 384 U.S. 855; State v. White
(1969), 15 Ohio St. 2d 146.
State v. Patterson (1971), 28 Ohio St. 2d
181 -- Paragraph three of the syllabus: "Grand jury proceedings are secret, and
an accused is not entitled to inspect grand jury transcripts either before or
during trial unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the
need for secrecy. (See State v. Laskey, 21 Ohio St. 2d 187, 191.)" Also
see State v. Greer
(1981), 66 Ohio St. 2d 139, paragraph two of the syllabus.
State v. Lane (1976), 49 Ohio St. 2d 77 --
Paragraph two of the syllabus: "Where a prosecution witness is not a
co-defendant, a trial court does not err in refusing to compel discovery of
prior statements and of grand jury testimony given by that witness. (Crim. R.
16[B]; Crim. R. 16[B].)" [But may be available under Crim. R. 16(B)(1)(g)
State v. Stojetz (1999), 84 Ohio St. 3d
452, 459 -- Crim. R. 16(B)(1)(a)(iii) requires the disclosure of grand jury
testimony by codefendants, but not that of co-conspirators absent demonstration
of a particularized need.
State v. Myers (1994), 92 Ohio App. 3d 740
-- Applying Polikoff v. Adam
(1993), 67 Ohio St. 3d 100, the prosecutor may not take an interlocutory appeal
from an order that grand jury minutes be disclosed to the defense.
State v. Sellards (1985), 17 Ohio St. 3d
169, 173 -- A defendant has demonstrated a particularized need for inspection of
grand jury testimony when a witness at trial has testified to significantly
different time frames than those presented in the indictment.
Petition for Disclosure of Evidence
(1980), 63 Ohio St. 2d 212 --Syllabus: "(1)
R.C. 2939.11 allows the court which
supervises a grand jury to disclose evidence presented to the grand jury where
justice requires, in civil as well as criminal actions. (2) A petition to the
court which supervises a grand jury is the proper means of obtaining release of
grand jury materials."
State, ex rel. Collins, v. O'Farrell
(1991), 61 Ohio St. 3d 142 -- When a person being prosecuted for a misdemeanor
in Municipal Court seeks access to grand jury evidence, the proper approach is
to petition the Common Pleas Court which supervises the grand jury. The Common
Pleas Court may then consult with the Municipal Court as to what should be
disclosed. Also see State, ex rel. Ney, v. Allen (1990), 64 Ohio App. 3d
574 -- Writ of prohibition issued to block disclosure order by a municipal
State v. CECOS International, Inc. (1988),
38 Ohio St. 3d 120 -- Paragraph two of the syllabus: "A corporate employee's
grand jury testimony is discoverable under Crim. R. 16(B)(1)(a) when the
statement concerns an alleged criminal act or omission performed on behalf of
the corporation and within the scope of employment. The declarant must hold
sufficient authority to impute criminal culpability to the corporation."
State v. Davis (1985), 27 Ohio App. 3d 65
-- Particularized need for grand jury testimony was not demonstrated where
defendant was able to use prior testimony before an administrative agency for
In re Special Grand Jury Investigation
Concerning Organic Technologies (1995), 74 Ohio St. 3d 30 -- A presentence
investigation is not a public record subject to disclosure pursuant to
149.43. Therefore, grand jury information filed with a presentence investigation
is not subject to disclosure.
State v. Brown (1994), 99 Ohio App. 3d 604
-- Indictment, successive bills of particulars, and jury instructions shifted
somewhat as to specific conduct alleged to have constituted theft in a Medicaid
fraud prosecution. Compare majority and dissent analysis of whether nature and
identity of the offense was changed, and whether grand jury minutes should have
been examined to determine what conduct the grand jury meant to be basis for
State v. Martin (1993), 92 Ohio App. 3d
384 -- Judge ordered release of grand jury minutes to defendant police officer.
When the officer sought to use them in a hearing before the police personnel
board of review, the prosecutor obtained an injunction from another judge
blocking use. Collateral attack in this manner was improper. "Injunction is not
available to enjoin that which has already been accomplished or afford redress
for past wrongs." The proper remedy was to seek to have the order releasing
grand jury testimony voided, or to appeal it.
State ex rel. Beacon Journal Publishing Co. v.
Waters (1993), 67 Ohio St. 3d 321 -- Public records law may not be used to
gain access to grand jury subpoenas and grand jury witness record book. Criminal
Rule 6(E) construed as a law restricting release. However, an order of common
pleas court judges is not a valid basis for exemption.
State v. Suskind (1992), 78 Ohio App. 3d
525 -- Disclosure by the prosecutor of one page of grand jury testimony did not
amount to a waiver as to the balance, for which the defendant still had to
demonstrate a particularized need for disclosure.
State v. Cherry (1995), 107 Ohio App. 3d
476 -- Possible use of grand jury testimony as a prior inconsistent statement
was not enough to demonstrate particularized need for disclosure of grand jury
In re Grand Jury Investigation (1991), 61
Ohio Misc. 2d 583 -- Hamilton County Prosecutor's request denied for release of
grand jury transcripts in investigation which had led to press coverage
criticizing handling by his office.
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