R.I. Super. Ct. R. Crim. P. 6

As amended through April 4, 2024

Rule 6 - The Grand Jury.

(a)Number of Grand Jurors. A grand jury shall consist of not less than thirteen (13) nor more than twenty-three (23) members and a sufficient number of legally qualified persons shall be summoned to meet this requirement.

(b)Objections to Grand Jury and to Grand Jurors.

(1)Challenges. The attorney for the State or a defendant who has been held to answer may challenge the array of jurors on the ground that the grand jury was not selected or drawn in accordance with the law and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be determined by the court.

(2)Motion to Dismiss. A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualification of an individual juror, if not previously determined upon challenge. An indictment shall not be dismissed on the ground that one (1) or more members of the grand jury were not legally qualified if it appears from the signatures which appear on the indictment pursuant to subdivision (f) of this rule that twelve (12) or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.

(c)Foreman and Deputy Foreman. The court shall appoint one (1) of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations. During the absence of the foreman, the deputy foreman shall act as foreman.

(d)Who May Be Present. Attorneys for the State, the witness under examination, interpreters when needed and, for the purpose of taking the evidence or recording instructions, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

(e)Recording and Disclosure of Proceedings.

(1)Recording of Proceedings. All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device. An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the State unless disclosed in the proper discharge of the attorney's official duties or otherwise ordered by the court in a particular case. In the event an indictment is not returned any notes of a stenographer and transcriptions of such notes, and any other recordings of the proceedings, shall be delivered to and impounded by the court.

(2)General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the State, or any person to whom disclosure is made under subdivision (e)(3)(A)(ii) shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. A knowing violation of Rule 6 may be punished as a contempt of court.

(3)Exceptions.

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to:

(i) An attorney for the State for use in the performance of such attorney's duty; and

(ii) Such government personnel (including personnel of the federal government) as are deemed necessary by an attorney for the State to assist an attorney for the State in the performance of such attorney's duty to enforce criminal law.

(B) Any person to whom matters are disclosed under subdivision (e)(3)(A)(ii) shall not utilize that grand jury material for any purpose other than assisting the attorney for the State in the performance of such attorney's duty to enforce criminal law. An attorney for the State shall promptly provide the court with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made:

(i) When so directed by a court preliminarily to or in connection with a judicial proceeding;

(ii) When permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury;

(iii) When the disclosure is made by an attorney for the State to another grand jury; or

(iv) When permitted by a court at the request of an attorney for the State, upon a showing that such matters may disclose a violation of federal criminal law, to an appropriate official of the federal government for the purpose of enforcing such law.

If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.

(D) Unless the hearing on a petition for disclosure pursuant to subdivision (e)(3)(C)(i) is ex parte, which it may be when the petitioner is the State, the petitioner shall serve written notice of the petition upon :

(i) The attorney for the State;

(ii) The parties to the judicial proceeding if disclosure is sought in connection with such a proceeding; and

(iii) Such other persons as the court may direct.

The court shall afford those persons a reasonable opportunity to appear and be heard.

(4)Sealed Indictments. The judicial officer to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial or arraigned or presented on said indictment before a judicial officer. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.

(5)Closed Hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent improper disclosure of matters occurring before a grand jury.

(6)Sealed Records. Records, orders, and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent improper disclosure of matters occurring before a grand jury.

(f)Finding and Return of Indictment. An indictment may be found only upon the concurrence of twelve (12) or more jurors and shall be signed by each juror who concurred in the finding. The indictment shall be returned by the grand jury to a judicial officer in open court. If the defendant is in custody or has given bail or recognizance and twelve (12) jurors do not concur in finding an indictment, the foreman shall so report in writing to the court forthwith; whereupon, the Attorney General shall immediately notify the division of the District Court before which a complaint has been filed or is pending against the defendant of this fact.

(g)Tenure, Discharge and Excuse. A grand jury shall serve until the expiration of its term of office as fixed by statute. The court may at any time excuse a grand jury subject to recall during its term of office. On written application of the Attorney General, a grand jury may be extended beyond its term. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused.

R.I. Super. Ct. R. Crim. P. 6

As amended by the court on 5/4/1999; 7/1/2002; last amended by Order dated June 22, 2017, effective 9/5/2017.

2002 Committee Notes

Subdivision (e) has been rewritten. The changes are primarily in form, but several new subsections provide explicit exceptions to the general rule of secrecy regarding grand jury proceedings.

Subdivision (e)(3)(A)(ii) allows an attorney for the State to disclose grand jury proceedings to government personnel (including federal personnel) deemed necessary by an attorney for the State to assist an attorney for the State in the performance of his duties. The rule is similar to the federal rule and is necessary for the investigation and preparation of some more complex criminal cases. Federal and state authorities cooperate in organized crime and racketeering investigations, in public corruption and major fraud cases, and in various other situations where federal and state criminal jurisdictions overlap. Government attorneys in complex grand jury investigations frequently find it necessary to enlist the help of a team of government agents and experts. While the agents are usually state personnel, in certain types of investigations an attorney for the State may wish to obtain the assistance of federal law enforcement personnel.

The disclosure permitted is limited. It is permissible only in connection with the attorney for the State's "duty to enforce criminal law" and only to those personnel "deemed necessary ... to assist" in the performance of that duty. Under subdivision (e)(3)(B), the material disclosed may not be used for any other purpose, and the names of persons to whom disclosure is made must be promptly provided to the court. The attorney for the State is also charged with the responsibility of certifying to the court that he or she has advised those persons to whom disclosure was made under (e)(3)(A)(ii) of their obligation of secrecy under Rule 6.

Subdivision (e)(3)(C)(i) specifically recognizes that an attorney for the state may turn over grand jury transcripts under Rule 16 when the defendant requests discovery. Subdivision (e)(3)(C)(iv) recognizes that it is permissible for the attorney for the State to make disclosure of matters occurring before one grand jury to another state grand jury. Subdivision (e)(3)(C)(v) covers the situation where, during a state grand jury investigation, evidence is developed which suggests a violation of federal law. The subdivision allows a court to permit disclosure to a federal official for the purpose of enforcing federal law when an attorney for the State so requests and makes the requisite showing.

The provision formerly found in Rule 6(e) that "[n]o obligation of secrecy may be imposed upon any person except in accordance with this rule," has been deleted as a result of Section 12-11.1-5.1 of the Rhode Island Code, which punishes "unlawful grand jury disclosure." Subdivision (e)(2) specifically provides that a knowing violation of Rule 6 may be punished as a contempt of court.

Subsection (e)(3)(D) provides for notice to be given when there is a petition for disclosure under (e)(3)(C)(ii). The petitioner is required to serve notice of his petition on those persons who are recognized as entitled to appear and be heard on the matter. The notice requirement ensures that all interested parties, if they wish, may make a timely appearance. Generally, the attorney for the State is entitled to be heard so that he may represent the public interest in secrecy, including the State's legitimate concern about the possible effect on the functioning of future grand juries of unduly liberal disclosure. The notice requirement is inapplicable if the hearing is to be ex parte, which is allowed when the hearing involves an application for a court order by the State, so as to preserve, to the maximum extent possible, grand jury secrecy. The rule provides only that the hearing "may" be ex parte when the petitioner is the State, which allows the court to decide that matter based on the circumstances of the particular case.

Subdivisions (e)(5) and (e)(6), like the federal rule, provide for closed hearings and sealed records where necessary to prevent improper disclosure of matters occurring before a grand jury during preindictment proceedings, such as hearings concerning a decision to grant a grand jury witness immunity or to compel a grand jury witness to comply with the terms of a subpoena.

Language formerly in subdivision (f) has been deleted because it does not reflect current grand jury practice within the state.

Reporter's Notes to 1999 Amendment to Rule 6

Subdivision (e) has been rewritten. The changes are primarily in form, but several new subsections provide explicit exceptions to the general rule of secrecy regarding grand jury proceedings.

The disclosure permitted is limited. It is permissible only in connection with the attorney for the State's "duty to enforce criminal law" and only to those personnel "deemed necessary. . .to assist" in the performance of that duty. Under subdivision (e)(3)(B), the material disclosed may not be used for any other purpose, and the names of persons to whom disclosure is made must be promptly provided to the court. The attorney for the State is also charged with the responsibility of certifying to the court that he or she has advised those persons to whom disclosure was made under (e)(3)(A)(ii) of their obligation of secrecy under Rule 6.

Subdivision (e)(3)(C)(i) specifically recognizes that an attorney for the State may turn over grand jury transcripts under Rule 16 when the defendant requests discovery. Subdivision (e)(3)(C)(iv) recognizes that it is permissible for the attorney for the State to make disclosure of matters occurring before one grand jury to another state grand jury. Subdivision (e)(3)(C)(v) covers the situation where, during a state grand jury investigation, evidence is developed which suggests a violation of federal law. The subdivision allows a court to permit disclosure to a federal official for the purpose of enforcing federal law when an attorney for the State so requests and makes the requisite showing.

The provision formerly found in Rule 6(e) that "[n]o obligation of secrecy may be imposed upon any person except in accordance with this rule," has been deleted as a result of section 12-11.1-5.1 of the Rhode Island Code, which punishes "unlawful grand jury disclosure." Subdivision (e)(2) specifically provides that a knowing violation of Rule 6 may be punished as a contempt of court.

Language formerly in subdivision (f) has been deleted because it does not reflect current grand jury practice within the State.

1972 Notes

Subdivision (a) differs from its federal counterpart in two principal respects. First, it does not contain provisions governing the times when grand juries are to be convened. The General Laws contain controlling provisions governing this aspect of criminal practice in the Superior Court. G.L. 1956 (1969 Reenactment), §§ 12-11-2 through 12-11-4. Second, subdivision (a) provides that thirteen jurors are the minimum number of jurors required to constitute a grand jury, rather than sixteen as under the Federal Rule. Again, this retains existing statutory requirements which are based upon common law standards. G.L. 1956 (1969 Reenactment), § 12-11-1.

Subdivision (b) is essentially the same as its federal counterpart. Paragraph (1), which authorizes a challenge to either the array or qualifications of a juror before the jury is sworn, has no express counterpart in the General Laws. It differs from the federal rule by not permitting the array to be challenged on the ground that it was improperly "summoned." Although paragraph (2), which authorizes a defendant to attack an indictment because either the jury was improperly selected or jurors lacked the qualifications to serve, is in accord with Rhode Island practice, it does modify the existing rule that if a single juror was not legally qualified the indictment will be quashed. See State v. Edwards, 89 R.I. 378, 383, 153 A.2d 153, 157 (1959). Under the rule the indictment is not to be quashed even though one or more jurors were not qualified if at least twelve qualified jurors voted to return the indictment.

Subdivision (c) differs from its federal counterpart by not requiring the foreman to sign indictments on behalf of the jury or to keep a record of the number of jurors concurring in the finding of each indictment. Under subdivision (f) each juror who votes to return an indictment is to sign the indictment, thereby rendering it unnecessary to make and file the separate record required under the federal rule.

Subdivision (d) is essentially the same as the federal rule and accords with existing Rhode Island practice.

Subdivision (e) is essentially the same as its federal counterpart with two additions. The first sentence was added to permit, but not require, stenographic or other records to be made of grand jury proceedings upon request of the Attorney General. See G.L. 1956 (1969 Reenactment), § 8-5-6. At present, such records are made only in Providence County.

The other addition, which is taken from the Maine Rules of Criminal Procedure, requires the court to impound any grand jury records of proceedings in which indictments are not returned.

The requirements for secrecy of grand jury proceedings imposed under this subdivision comport generally with existing Rhode Island procedure. Similarly, the authorization for sealed indictments, although not provided for by statute, accords with existing practice for "secret" indictments.

Subdivision (f) is the same as its federal counterpart with three additions. First, each grand juror who concurs in finding a true bill is required to sign the indictment. Second, when a foreman reports that an indictment has not been returned, the Attorney General is required to report this fact to the District Court so that it can discharge the defendant and clear its docket of the matter. The requirement that the foreman's written report of no true bill be made "forthwith," means by the end of the same day during which the grand jury reached this determination; thus, reports of no true bill are not to be withheld until the end of the grand jury's term. Finally, if the Attorney General fails to present a charge against a defendant to a grand jury to which the defendant has been bound over by the time that grand jury completes its labors and renders its final report, the Attorney General is required to report that fact in writing to the Superior Court and to the appropriate division of the District Court so that the defendant can be discharged. For the purpose of this rule, the Attorney General is deemed to have "presented" a matter when proof of the charge has been placed before the grand jury and it has voted on the question of whether to return an indictment.

Subdivision (g) differs from the federal rule by omission of the provision for a specific, maximum period of service for grand juries and the provision that they serve until discharged by the court. The final sentence, which permits impaneling replacement jurors, is new to Rhode Island practice. In all other respects the subdivision reflects existing Rhode Island law. G.L. 1956 (1969 Reenactment), §§ 12-11-2 and 12-11-3. The rule is not intended to alter the restriction imposed by the Rhode Island Constitution that no more than one grand jury may function at any time in a county In re Opinion to the Governor, 62 R.I. 200, 206-12, 4 A.2d 487, 489-92(1939).