Wis JI-Criminal SM-10

The grand jury in Wisconsin is an institution created and controlled by §§ 968.40

through 968.53. The judge plays a limited role: the judge orders the creation of the

grand jury; sees to it that a full grand jury is selected and sworn; instructs the grand jurors

before they begin their work; presides over proceedings in which statutory immunity for

witnesses is sought; accepts lists of all witnesses called by, progress reports from and

indictments returned by the grand jury during its session; takes appropriate action when

indictments are returned; and discharges the grand jury.

The procedural and legal aspects of a grand jury proceeding are outlined at CR-46,

Wisconsin Judicial Benchbook, Volume I, Criminal and Traffic. This Special Material

provides scripted material that is not included in the Benchbook.

I. Swearing in the Grand Jurors

The judge shall administer the following oath 1 to grand jurors before they begin the

performance of their duties:

"You, as grand jurors for the county of ___________, do solemnly swear or

affirm that you will diligently inquire as to all matters and things which come

before this grand jury; that you will keep all matters which come before this

grand jury secret; that you will indict no person for envy, hatred or malice; that

you will not leave any person unindicted for love, fear, favor, affection or hope

of reward; and that you will indict truly, according to the best of your

understanding."

II. Swearing in the Court Reporters

The judge must administer to each reporter and assistant the following oath:

"Do you solemnly swear that you will faithfully record and transcribe all the

proceedings before the grand jury and keep secret the matter relative to such

proceedings?" 2

III. Charge to the Grand Jury

It is the duty of the court to instruct the grand jury. 3 The following is

recommended.

"The function of the grand jury is not to determine guilt or innocence but

rather to investigate possible violations of the criminal law and decide whether

the person or persons about whom evidence is presented should be brought to

trial. The only job of the grand jury is to return indictments and, if such is

appropriate, to report its progress to the court. 4 These progress reports, if any,

must be prepared and limited so as not to violate the secrecy rule, and unless so

limited, they may not be received by the court.

"Your first duty is to select a presiding juror and a clerk. It shall be the duty

of the clerk to preserve the minutes of the proceedings and all exhibits. 5

"All 17 jurors must attend each session unless excused by the presiding juror

for good and sufficient reason. 6

"No business may be transacted by the grand jury unless at least 14 members

are in attendance. 7

"It is the duty of the district attorney of the county to attend your grand jury

sessions whenever the jury so desires for the purpose of examining witnesses in

your presence, giving you advice upon any legal matter, issuing subpoenas and

other process to bring witnesses before you and helping to draw bills of

indictment. 8

"It is the duty of the presiding juror to return to the judge a list, signed by the

presiding juror, of all witnesses who are sworn before the grand jury. 9

"All witnesses brought before the grand jury shall be put under oath. The

presiding juror, the district attorney, or other prosecuting officer shall have the

authority to administer such oath. 10

"Any witness subpoenaed to appear before you has the right to confer with

and obtain the legal advice of an attorney. 11 Although the attorney is not entitled

to be present during the questioning before the grand jury, the witness should be

allowed to confer with the attorney outside the jury room whenever the witness

so desires. 12 Any witness also has the privilege against self-incrimination

granted by the Fifth Amendment to the United States Constitution. Pursuant to

that privilege, the witness may refuse to answer questions before the grand jury.

It is the job of the district attorney and the court to decide whether the witness

has properly invoked that privilege.

"Any witness should be advised by the prosecuting officer(s) that the witness

has a privilege against self-incrimination and has the right to confer with counsel.

Such advice should appear on the grand jury record. 13

"All grand jury deliberations are to be secret, and no one is permitted to be

present at your sessions except the jury, the official sworn reporter(s) and

typist(s), the prosecuting officer(s), the witness under examination, and a duly

sworn interpreter, if one is required.

"The primary duty of the grand jury is to weigh the evidence against the

accused. If the evidence 'excites in your minds after careful consideration an

honest reasonable belief that the accused committed the offense charged,' 14 you

the grand jury may return an indictment of the accused for the offense charged.

Only such evidence as is presented during the grand jury sessions shall be

considered. You should not subject yourselves to the opinions or accounts of

other persons, of the media, or of any other source regarding such evidence. No

indictment shall be returned unless at least 12 grand jurors concur therein. 15

"No grand juror shall be allowed to state or testify in court in what manner

he or she or any other member of the jury voted on any question before you, or

what opinion was expressed by any juror in relation to any question. 16

"No grand juror or officer of the court shall disclose the fact that any

indictment for a felony has been found against any person not in custody or

under recognizance, otherwise than by issuing or executing process on such

indictment, until the person has been arrested. 17

"The grand jurors normally serve for a period of 31 consecutive days, unless

more days are necessary to complete service. The court may discharge the grand

jury at any time. 18

"When the grand jury is discharged, all transcripts of testimony, minutes of

proceedings, exhibits and other records of the grand jury shall be collected by the

clerk of the grand jury and delivered, as the jury directs, either to the attorney

general or to the district attorney, or, upon approval of the court, to the clerk of

the court who shall impound them subject to further order or orders of the

court." 19

IV. Inquiry When a Witness Claims the Privilege Against Self-Incrimination;

Grants of Immunity

The judge presides over proceedings relating to the assertion of the privilege against

self-incrimination. See Special Material 55 for an outline of a suggested procedure.