N.C.P.I.—Crim. 100.11

NOTE WELL: If the existing grand jurors on a case are serving as

the investigative grand jury, then you should instruct them that

they will be serving throughout the complete investigation. You

should explain to the jurors that their duties and responsibilities

are different on an investigative grand jury panel and it differs

from their responsibilities on a grand jury in a number of ways.

NOTE WELL: See provisions pertaining to convening an

investigative grand jury noted in N.C. Gen. Stat. § 15A-622(h).

NOTE WELL: This instruction should be given in secret in the

grand jury room. The activities and, indeed, even the existence

of an investigative grand jury are highly secret. Our law makes it

clear that no one should know that such a grand jury is in

operation. No one is to know what witnesses have been called

before it, or what crimes it is investigating. It is important that

you understand that no information is to leave your grand jury

room, from you or from the officers involved, except that the

officers may transmit information to other investigating

agencies, as authorized by law. N.C. Gen. Stat. § 15A-622(f)

provides, "After new grand jurors have been sworn in, the

presiding judge may give the grand jurors written or oral

instructions relating to the performance of their duties. At

subsequent sessions of court, the presiding judge is not required

to give any additional instructions to the grand jurors." This

instruction should be given (1) at the beginning of the first

criminal session after January 1st and July 1st, when there will

be at least nine new grand jurors, and (2) whenever a

replacement grand juror has been drawn as provided for in N.C.

Gen. Stat. § 15A-622(b). N.C. Gen. Stat. § 15A-622 requires

written or oral instructions be given and it should be recorded by

the court reporter that the instructions have been given.

See the N.C. Criminal Bench Book Superior Court for a grand

jury questionnaire and the order of appointment of a grand jury

foreperson.

You have been selected to serve as an investigative grand jury. The

grand jury is a time-honored institution, whose function is essential to our

system of justice. Our state Constitution guarantees that no person shall be

placed on trial for a felony without that person's consent, unless that person

has been indicted by a grand jury. This provision is a barrier against unjust

prosecution. The grand jury not only brings to trial persons who have been

accused of crime, but also protects persons from unfounded accusations.

In addition to acting upon bills of indictment, grand juries historically

have had investigative powers, which authorized them to look into suspected

criminal activities within their jurisdiction. An investigative grand jury has

different powers and functions than a normal grand jury.

I am speaking to you this morning to notify each of you that the grand

jury which you constitute will hereafter be serving in an investigative

function capacity and will so serve until completion of the investigation of

the crimes contained in the petition which convened this investigative grand

jury.

As an investigative grand jury you are authorized to request the

district attorney to subpoena those persons believed to have knowledge of

crimes under investigation to appear before you, to examine them as to

what they know, and have the testimony of such persons taken by a Court

Reporter so it becomes a matter of record. Any other persons who have

information and who wish voluntarily to testify before the investigative grand

jury may do so. The crimes that the investigative grand jury may inquire

into are very narrowly defined by the law; these are limited to crimes

involving G.S. 90-95(h) (drug trafficking), G.S. 90-95.1 (continuing criminal

enterprise), G.S. 14-43.11 (human trafficking), G.S. 14-43.12 (involuntary

servitude), or G.S 14-43.13 (sexual servitude).

It is the duty of each of you to be present every time this investigative

grand jury is convened. However, your foreperson may excuse individual

jurors from attending particular sessions of the investigative grand jury,

except that the foreperson may not excuse more than two of you for any

one session. Such excuses should be granted only in a case of emergency,

such as sickness or death in the family, or other justifiable good cause. No

grand juror may be excused permanently without consulting with the court.

Your grand jury consists of eighteen (18) members.

A quorum is the number of members of a group which must be present

for that group to transact business lawfully. For an investigative grand jury,

a quorum is twelve1, so at least twelve of you must be present at all times

for the lawful transaction of business. If less than twelve of you are present,

even if only for a short time, the proceedings must stop until a quorum is

again present.

The activities and, indeed, even the existence of an investigative grand

jury are highly secret. Our law makes it clear that no one should know that

such a grand jury is in operation. No one is to know what witnesses have

been called before it, or what crimes it is investigating. It is important that

you understand that no information is to leave your grand jury room, from

you or from the officers involved, except that the officers may transmit

information to other investigating agencies, as authorized by law.

The fact that any witness has been subpoenaed before the grand jury

is secret. The subpoena is issued by the District Attorney and will only be

returned to the Supreme Court of North Carolina; there will be no record in

our court here in (name county) County that an investigative grand jury

convened or that any witness appeared and testified. That is why I am

talking to you here and not out in the regular courtroom. This room has

been selected for your investigative function because it is secure and will

enable grand jury witnesses and officers to come and go without attracting

attention.

Anyone who reveals any information about the existence and activities

of this investigative grand jury is in contempt of court and may be punished

accordingly. Therefore, it is very important that you know exactly what to

do if anyone asks you anything about the grand jury, including whether an

investigative grand jury has been convened.

If someone should approach you about your grand jury service, inform

either District Attorney (name District Attorney) or the presiding judge about

such contact. Even if it is a situation that you do not think requires any

action on the presiding judge’s part, or anybody else's part, you should

report it to the court at once so you are protected if the matter should come

up later.

Again I remind you that the secrecy of all grand jury proceedings is of

the utmost importance. The purpose of this secrecy is threefold: First, it

guarantees that each of you is free to discuss and debate the evidence fully

and vigorously without any fear that what you say or do may be made public

at any future time. Second, it prevents anyone charged with a crime from

learning of the investigation before it is complete and reduces the chance

that such a person will escape and defeat the process of criminal

justice. Finally, it shields from publicity those persons against whom

accusations are brought which you find unfounded. If publicity were given

to the fact that the grand jury investigated a person, his or her reputation

might be ruined, even though that person is innocent of any crime.

Your oath will preclude now and forevermore any comment or publicity

of what goes on in this grand jury room. It is your solemn obligation to

keep secret everything that takes place in this investigative grand jury room,

including the subjects discussed or the identity of the persons who appear

before you. I repeat: your oath requires you to keep in absolute secrecy all

matters, persons, and discussions that occur in your sessions. This duty

exists throughout the time of your service and continues forever, and is

always subject to punishment for contempt of court if the duty is violated.

District Attorney (name District Attorney) and any prosecutor the

District Attorney deems appropriate, will be present at and during your

investigative grand jury proceedings. The prosecutor is present in order to

question each witness who has been subpoenaed to appear before

you. After the witnesses are sworn by your foreperson to testify truthfully,

the prosecutor will question them. When the prosecutor has finished

questioning the witnesses, the foreperson may ask any questions that the

foreperson has of the witness, then other members of the investigative

grand jury may ask questions.

Because the Court Reporter will be present during your proceedings to

take down the questions that are asked and the witnesses' answers and

make a permanent transcribed record of the testimony, if you ask a

question, be sure to speak loudly enough so that both the witness and the

Court Reporter can understand you. You will have numbered

seats. Remember the number and sit in the same seat each time. If you

ask a question, state your seat number first, because that is the best way

for the Court Reporter to know who you are. It also makes it unnecessary

for you to reveal your name in front of a witness.

After the prosecutor has finished the examination of a witness, you

may or may not have further questions you wish to ask. Refrain from

making any comments regarding the proceedings unless you are in the

grand jury room for deliberations. No one but grand jurors may be in the

jury room during any of your deliberations, and off the cuff comments such

as "I don't believe that witness" could be considered as deliberations. You

may, of course, ask questions of the witnesses, but you should avoid any

other comments.

Your foreperson will call those persons whose names are listed on the

bill as witnesses, one at a time. Your foreperson must mark the bill by

placing an "X" or check mark by the name of each witness who was sworn

and examined by you in connection with that bill. If you wish to hear any

other person not named on a bill under consideration, you must through

your foreperson request the prosecutor to add that person's name to the bill

and call such person as a witness. The prosecutor may, in the prosecutor's

discretion, call or refuse to call that witness. The person accused in a bill of

indictment is never called to be questioned by the investigative grand jury.

Witnesses should be treated courteously when they appear before

you. Questions should be put to them in an orderly fashion. If there is any

doubt as to the propriety of any question, you may ask the prosecutor or his

assistants for advice. If necessary, a ruling may be obtained from the court.

Any witness must be permitted to leave your room at reasonable intervals

and for a reasonable period of time to consult with their attorney before

answering any question.

You are the judges of the credibility of the witnesses who appear

before you. You may believe all, part, or none of the testimony of a

particular witness. It is for you to decide whether to believe all or any part

of the testimony of a witness. It is not proper for the court, the prosecutor,

or any law enforcement officer to determine that for you.

It may assist you in determining the credibility of a witness to consider

whether the witness is personally interested, whether their testimony has

been corroborated by other witnesses or circumstances in the case, what

opportunity the witness has had for determining the matter about which

they testify, the reasonableness of their story, and the manner and

demeanor of the witness while testifying before you. From these factors,

you may determine whether you believe the witnesses who testify before

you.

No one may be present with you in the grand jury room while you are

hearing a witness, other than that witness, the prosecutor, the Court

Reporter, an interpreter for the witness or a law enforcement officer holding

the witness in custody. Each witness will appear before you separately.

Anyone who refuses to testify when required to do so, can be

sentenced to jail for contempt.

A witness does have the right to plead the Fifth Amendment. The

witness may refuse to answer on the grounds that it might incriminate him

or her. That is a right we all have and you should not hold the exercising of

such constitutional right against a witness if a bill of indictment against him

or her is later submitted to you.

If a witness who is called before you claims their Fifth Amendment

right to refuse to answer any questions that might tend to incriminate him or

her, the prosecutor may choose to grant what is known as "use immunity" to

such witnesses. This means that the witness will not be prosecuted at some

later time for any answer the witness gives even if the answer does tend to

incriminate him or her. Since the witness will not be prosecuted for the

answers the witness gives, the witness then has no further right to refuse to

answer the questions that are asked. If a witness does refuse after having

been given "use immunity," the presiding judge can hold the witness in

contempt and force the witness to testify. If necessary, the judge can put

the witness in jail to compel his or her testimony, or otherwise punish the

witness if the witness continues to refuse.

I direct the foreperson to keep a record of your attendance. Since you

may be called upon to decide on an indictment after a series of grand jury

meetings, it is important that you have been present during testimony

regarding that indictment.

If you missed just a few sessions, the record, which is the Court

Reporter's transcription of the witness's examination, could be made

available for you. You could read that and catch up on what you missed. If

you missed too many sessions, a problem would exist in that you would not

get to see the witness's demeanor to help you judge the witness’s

truthfulness, and you might have questions that you would not have a

chance to ask. If you miss a session and are still not satisfied after having

read the transcript of that session, the witness could be recalled, but that

would mean that all of the other grand jurors would have to sit through

testimony they had already heard. So, try not to miss any

session. However, your foreperson may excuse individual jurors from

attending particular sessions of the grand jury, except that your foreperson

may not excuse more than two of you for any one session. Such excuses

should be granted only in a case of emergency, such as sickness or death in

the family, or other justifiable good cause. No grand juror may be excused

permanently without consulting with the court.

If, during the course of these investigations, something comes up that

bothers you to the extent that you do not feel you could be fair, or if names

come up of people who are close to you, let your foreperson know that you

need to do what is called "recusing" yourself. That means that you

disqualify yourself from hearing or taking any action upon that particular

evidence.

In performing your duties, you are free to exercise your own judgment

without fear or favor and you should not be deterred or influenced by the

criticism of the public, the prosecutor, or the court. You are the defenders of

the innocent as well as the accusers of the guilty, and in both respects you

vindicate the integrity of the law. Ours is a government based on law, and

there can be no more significant role in maintaining this precept than that

assigned to the investigative grand jury.

Your membership on the grand jury is a high honor. You are among a

relatively small number of citizens of your county who are chosen to serve

on the investigative grand jury. You should strive to participate responsibly

in performing your grand jury duties. Always remember that the proper

administration of justice is essential to our way of life. It must always be

above suspicion.

What I have just instructed you is the nature of an investigative grand

jury proceeding. You will hear the testimony of witnesses, including both

witnesses who refuse to give information to the prosecutor and investigative

officers outside of this room, and witnesses who want to testify before you

voluntarily so that their testimony will be on the record. The testimony will

be only about [drug trafficking] [continuing criminal enterprise] [human

trafficking] [involuntary servitude] [sexual servitude]. It cannot involve any

other crime; the law is very clear about that.

After you have heard evidence from the witnesses who appear before

you, the prosecutor may then submit to you bills of indictment accusing

persons of criminal acts. These bills of indictment would be based upon the

evidence you received during the course of your investigative activities. If

such bills are submitted, you must excuse the prosecutor, the Court

Reporter, and all other persons who are not members of your investigative

grand jury while you discuss, deliberate upon and vote on them.

I wish to impress upon you the fact that it is not your duty to try the

question of the guilt of innocence of the defendant named in the bill of

indictment. That is the province of the trial jury in the presence of the

Court, where the defendant is present and may be heard. It is only your

province to hear the evidence on behalf of the State and to proceed with the

investigation far enough to satisfy twelve of your number that the crime

named in the bill of indictment has probably been committed and that there

is probable cause that the named defendant is guilty of the crime.

Probable cause is defined to be a reasonable ground of suspicion

supported by circumstances sufficiently strong in themselves to warrant a

cautious person in the belief that the person accused is guilty of the offense

of which the person is charged. You need to answer only two

questions: First, was a crime probably committed, and second, did the

named accused probably commit that crime?

There must be at least twelve affirmative votes- finding probable

cause to believe that the crime or crimes alleged in the particular bill were

probably committed by the named accused- before you can return a true bill

of indictment. Your foreperson would then sign and return the bill to the

presiding judge in secret with your action indicated upon the face of the

indictment. Again, I caution you that any deliberations must be conducted

with only your grand jury members present and no one else.

I want to thank each of you in advance for taking time out of your

busy lives to perform this important civic duty. I realize that you are making

a personal sacrifice but I believe that you will find this experience to be

rewarding. Furthermore, at the end of your term as an investigative grand

juror, you will have the satisfaction of having helped to render justice among

your fellow citizens.

APPENDIX: OATHS

OATH OF THE FOREPERSON OF THE INVESTIGATIVE GRAND JURY

You, as foreperson of this grand inquest for the body of this county,

shall diligently inquire and true presentment make of all such matters and

things as shall be given you in charge; the State's counsel, your fellows' and

your own, you shall keep in secret; you shall present no one for envy,

hatred, or malice; neither shall you leave anyone unpresented for fear, favor

or affection, reward, or hope of reward; but you shall present all things

truly, as they come to your knowledge, according to the best of your

understanding; so help you, God.

OATH OF INVESTIGATIVE GRAND JURORS

The same oath which your foreperson has taken on his part, you and

each of you shall well and truly observe and keep on your part; so help you,

God.

OATH OF WITNESS BEFORE INVESTIGATIVE GRAND JURY

You swear (or affirm) that the evidence you shall give before the

Investigative Grand Jury, upon this bill of indictment against

______________, shall be the truth, the whole truth, and nothing but the

truth, so help you, God.

OATH OF COURT REPORTER

Do you swear (or affirm) that you will keep secret all matters before

this Investigative Grand Jury within your knowledge and will refrain from

disclosing anything which transpires during any of its sessions, so help you,

God?

OATH OF INTERPRETER PRESENT DURING INVESTIGATIVE GRAND JURY

SESSION

Do you solemnly swear (or affirm) that as an interpreter before this

Investigative Grand Jury you will impersonally, truthfully, accurately, and

literally, and without any additions or deletions, and without adding any

remarks of your own, translate and repeat to the witness every question

propounded to him, and that you will impersonally, truthfully, accurately,

and literally, and without any additions or deletions, and without adding any

remarks of your own, translate and repeat to the

Investigative Grand Jury every answer of the witness to such question

and every statement made by the witness in response to such question, so

help you, God?

Do you also swear (or affirm) that you will keep secret all matters

before this Investigative Grand Jury within your knowledge and will refrain

from disclosing anything which transpires during any of its sessions, so help

you, God?

OATH OF LAW ENFORCEMENT OFFICER HOLDING A WITNESS IN CUSTODY

DURING INVESTIGATIVE GRAND JURY TESTIMONY

Do you swear (or affirm) that you will keep secret all matters before

this Investigative Grand Jury within your knowledge and will refrain from

disclosing anything which transpires during any of its sessions, so help you,

God?