May a judge request the prosecutor’s list of proposed grand jury defendants and charges before a session?

Plain-English summary

A judge asked whether the prosecutor could be required to provide names and proposed charges before a grand jury session, to estimate the session length and prepare legal instructions.

The Commission described the judge’s limited grand jury role and the court-directed disclosure exception in Criminal Procedure Rule 6(e)(3)(C)(i). It concluded that asking the prosecutor for the advance list was appropriate.

In practice

The opinion permits the advance names-and-charges request for the specified grand jury preparation.

Common questions

Q: May the judge ask for the proposed names and charges in advance?

A: Yes. The Commission found that request appropriate.

Q: What rule did the opinion discuss?

A: West Virginia Rule of Criminal Procedure 6(e)(3)(C)(i), concerning disclosure of grand jury matters.

Background and rules framework

The opinion did not identify a numbered Judicial Conduct Code provision. It discussed Criminal Procedure Rule 6(e)(3)(C)(i) and the judge’s role in convening and receiving the grand jury.

Citations and references

Court rules:

• West Virginia Rule of Criminal Procedure 6(e)(3)(C)(i), disclosure of grand jury matters.

See also

• WV JIC Advisory Opinion 2017-22
• WV JIC Advisory Opinion 2016-30

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2016-26, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorl<le Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

October 24, 2016

Re: JIC Advisory Opinion 2016-26

Dear

Your request for an advisory opinion was reviewed by the Judicial Investigation Commission during its October 21, 2016 meeting. You want to know if it is appropriate for the Court to require the Prosecuting Attorney to provide it with a list of the criminal defendants being presented to the Grand Jury along with the statutory crimes alleged to have been committed. You state that by having the names and charges, it will give you an idea of how long the Grand Jury will have to serve during the term and an opportunity to prepare the law for their review.

Grand jury proceedings are secret, and the role of the judge is limited. The judge selects the foreman and administers the oath to him/her and the other grand jurors. After being sworn, the grand jurors shall be charged by the judge and then sent to their room. At the conclusion of the grand jury proceedings all true bill indictments are signed by the grand jury foreman and presented to the court publicly, and in the presence of all the jurors.

Rule 6(e)(3)(C)(i) of the West Virginia Rules of Criminal Procedure provides that "[d]isclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made when so directed by a court preliminarily to or in connection with a judicial proceeding." The Rule also provides that "[i]f 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."

Since a judge facilitates the grand jury process and is responsible for presiding over the report at the conclusion of the grand jury's work, the Commission believes that it

JIC Advisory Opinion 2016-26
October 24, 2016
Page 2 of2

is appropriate for you to ask the prosecutor to provide you with a list of names and charges that she will present in advance of each session.

We hope this opinion fully addresses the issue which you raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

µ,m;:_ Ronald E. Wilson Chairperson
Judicial Investigation Commission

REW:tat