Grand Jury


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

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 in discovery.
Revised Code Chapter 2313 -- Commissioners of Jurors.
Revised Code Chapter 2939 -- Grand Juries.

In General

State v. Rohrbaugh, 178 Ohio App. 3d 211, 2008-Ohio-4781 – Defendant was indicted for breaking and entering, but to implement the plea bargain it was amended to receiving stolen property. The assignment of error on appeal challenged the restitution order. On its own the court found fault with the amendment, finding it changed the name and identity of the offense and denied the defendant his Art. I, Sec. 10 right to indictment by a grand jury. Reversed: State v. Rohrbaugh, 126 Ohio St. 3d 421, 2010-Ohio-3286 – Syllabus: “A defendant may plead guilty to an indictment that was amended to change the name and identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.”
State v. Lynn, 185 Ohio App. 3d 390, 2009-Ohio-6812 – Aggravated burglary statute only requires proof that the defendant trespassed with the intent to commit any criminal offense, but the indictment here alleged an intent to commit a theft offense. Actual intent appeared to be an assault. The trial court overruled the state’s motion to amend the indictment accordingly, but provided the jury with interrogatories pertaining to both theft and assault. Defendant maintained this was a denial of due process. The grand jury did not have to specify an individual offense, but by choosing theft that became a part of their finding of probable cause, and placed the defendant on notice as to what he would have to defend against. Reversed.
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 juvenile court.
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 self-incrimination.
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.


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 jury-selection procedures."
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 [1976], 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 lawyers.
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 R.C. 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.

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 affirmed.
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 [1963], 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 (1973).
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 invalidated indictment.
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.

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 sufficiency.
State v. Jackson, 192 Ohio App. 3d 617, 2011-Ohio-986 – State was granted leave to appeal what it claimed was an order that names of grand jury witnesses be released. Actual order turned out to be review of list by the trial judge in camera. Exercising its discretion, court concludes leave to appeal was improvidently granted.
State v. Coley, 93 Ohio St. 3d 253, 261-263, 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 172, 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.
State v. 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][2]; Crim. R. 16[B][3].)" [But may be available under Crim. R. 16(B)(1)(g) following testimony.]
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 judge.
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 impeachment purposes.
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 R.C. 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 indictment.
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 testimony.
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.

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.