The Supreme Court of Ohio

Report and Recommendations of the

Task Force

to Examine Improvements
to the Ohio Grand Jury System

july 2016

 THE SUPREME COURT of OHIO
REPORT AND RECOMMENDATIONS
OF THE
TASK FORCE TO EXAMINE IMPROVEMENTS
TO THE OHIO GRAND JURY SYSTEM
JULY

2016

MAUREEN O’CONNOR

CHIEF JUSTICE
PAUL E. PFEIFER
TERRENCE O’DONNELL
JUDITH ANN LANZINGER
SHARON L. KENNEDY
JUDITH L. FRENCH
WILLIAM M. O’NEILL

JUSTICES

MICHAEL L. BUENGER

ADMINISTRATIVE DIRECTOR

 TASK FORCE MEMBERS
Honorable Stephen McIntosh, Chair
Franklin County Court of Common Pleas
Columbus

Daniel Lutz, Vice Chair
Wayne County Prosecuting Attorney
Wooster

Senator Kevin Bacon
Ohio Senate
Columbus

Senator Edna Brown
Ohio Senate
Toledo

Honorable Joyce Campbell
Fairfield Municipal Court
Fairfield

Representative Robert Cupp
Ohio House of Representatives
Lima

Honorable Michelle Earley
Cleveland Municipal Court
Cleveland

Honorable William Finnegan
Marion County Court of Common Pleas
Marion

Honorable Steven Gall
Cuyahoga County Court of Common Pleas
Cleveland

Professor Mark Godsey
University of Cincinnati College of Law
Cincinnati

Honorable Michael Goulding
Lucas County Court of Common Pleas
Toledo

Chief Eliot Isaac
Cincinnati Police Department
Cincinnati

Janet Jackson
President and CEO
United Way of Central Ohio, Columbus

Honorable Melissa Powers
Hamilton County Municipal Court
Cincinnati

Professor Ric Simmons
The Ohio State University
Moritz College of Law, Columbus

Representative Fred Strahorn
Ohio House of Representatives
Dayton

Roger Synenberg
Synenberg, Coletta & Moran, LLC
Cleveland

Honorable Stephen Wolaver
Greene County Court of Common Pleas
Xenia

Staff Liaison, John VanNorman

 Chief Justice Maureen O’Connor
Supreme Court of Ohio
65 South Front Street
Columbus, Ohio 43215

Dear Chief Justice O’Connor:
Enclosed please find the final report and recommendations of the Supreme Court Task
Force to Examine Improvements to the Ohio Grand Jury System. We were charged to
study our current process and determine ways to better educate the public so they would
have a better understanding of how our grand jury system works and ways to instill or
ensure public confidence in the process.
I would first like to thank all the members of the task force who accepted the invitation to
serve and devoted their time and energy to get a timely report to you. Second, I would
like to thank the staff at the Supreme Court for their organizational skills, research and
support which allowed the task force to quickly receive the information necessary to have
informed discussions and debates on the issues.
It is my hope that the recommendations within this report have achieved the goals as
articulated by the Chief Justice. On behalf of the members of the task force I would like
to thank Chief Justice O’Connor for the opportunity she provided for each member to
serve and participate.

Judge Stephen L. McIntosh

  

Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

TABLE OF CONTENTS
TASK FORCE CHARGE ..........................................................................................................1
INTRODUCTION.......................................................................................................................2
SUMMARY OF RECOMMENDATIONS ...............................................................................4
REPORT AND RECOMMENDATIONS ................................................................................5
I.

Police Lethal Use of Force ..................................................................................5

II.

Role of Judiciary, Prosecution, and Grand Jury ...........................................10

III.

Grand Jury Secrecy ..........................................................................................12

IV.

Public Education of the Grand Jury System ..................................................18

V.

Rule and Statute Review/Reconciliation .........................................................20

APPENDIX A:

Proposed Ohio Jury Instruction Amendments ..................................21

APPENDIX B:

Proposed Crim.R. 6 Amendments .......................................................25

APPENDIX C:

Proposed Grand Jury Video Script .....................................................31

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Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

TASK FORCE CHARGE
Chief Justice Maureen O’Connor of the Supreme Court of Ohio established the Task Force to
examine and recommend any improvements to the Ohio grand jury system. Specifically, she
requested the Task Force, in addressing this charge, to review each of the following:
1.

The grand jury systems used in other states;

2.

Chapter 2939 of the Ohio Revised Code and Rule 6 of the Ohio Rules of Criminal
Procedure to (A) recommend any necessary amendments to the statutes or rule to
improve the neutrality and objectivity of the grand jury system, (B) determine
whether the rule should be amended to revise those provisions concerning secrecy
of grand jury deliberations, and (C) recommend any necessary amendments to
reconcile inconsistencies between the statutes and rule;

3.

The topic of grand juror education and instruction to determine (A) whether more
extensive grand jury instructions should be included in the Ohio Jury Instructions
and (B) whether there is a need for improved grand juror orientation and
education;

4.

The topic of public understanding of the grand jury system to (A) address the
public perception of the grand jury system and the basis for such perception and,
if necessary, recommend ways to improve the public’s trust and confidence in the
system, and (B) address public understanding of the grand jury system and, if
necessary, recommend ways to improve public education about the system;

5.

Any other topics the Task Force deemed necessary to improve the grand jury
system.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

INTRODUCTION
Overview
The grand jury system has been a part of the fabric of our criminal justice system throughout the
nation’s history. Each American colony instituted its own version of the grand jury system. At
least two of the original 13 colonies ‒ Massachusetts and New Hampshire ‒ made their
ratification of the United States Constitution contingent on the inclusion of a grand jury
provision. Furthermore, the concept of a grand jury has been part of the United States
Constitution since 1791 with the adoption of the Fifth Amendment.
Likewise, the grand jury has been a constant in the Ohio Constitution’s Bill of Rights as far back
as the original constitution in 1803. While other states have chosen different systems for
initiating criminal proceedings, every Ohio constitutional revision since has preserved the
protection of the grand jury.
However, recent state and national events have raised questions as to whether the grand jury
system can be improved and if there are additional steps that should be taken to increase the
public’s confidence, understanding, and trust in the system. In response to these questions, in
January 2016, Chief Justice Maureen O’Connor established the Supreme Court Task Force to
Examine Improvements to the Ohio Grand Jury System. Acknowledging that the grand jury
system is embedded in the Ohio Constitution’s Bill of Rights, the Chief Justice did not ask the
Task Force to determine whether the grand jury system should be eliminated. Rather, the Chief
Justice charged the Task Force with examining and recommending any necessary improvements
to the system.
Work of the Task Force
For the past six months the Task Force has endeavored to meet its charge. To accomplish this
goal, the Task Force established the following five workgroups:
•

Police Lethal Use of Force, to determine if new processes or procedures are needed
to ensure fairness and equality in cases involving police lethal use of force and, if so,
make recommendations for improved processing or procedures in such cases.

•

Role of the Judiciary, Prosecution, and Grand Jury, to determine (1) whether
more extensive grand jury instructions should be included in the Ohio Jury
Instructions, (2) whether there is a need for improved grand juror orientation and
education, and (3) whether the current balance between prosecutorial and judicial
roles in the grand jury system needs to be modified.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

•

Grand Jury Secrecy, to review the reasons for grand jury secrecy and determine
whether changes, which are consistent with these reasons, are needed to improve the
perception of and public confidence in the grand jury system.

•

Public Perception and Education, to (1) address public perception of the grand jury
system and the basis for such perception and, if necessary, recommend ways to
improve public confidence in the system and (2) address public understanding of the
grand jury system and, if necessary, recommend ways to improve public education
about the system.

•

Rule and Statute Review/Reconciliation, to (1) review grand jury systems used in
other states and (2) review the Ohio Revised Code and Supreme Court rules to (a)
determine whether amendments are necessary to improve the neutrality and
objectivity of the grand jury system, (b) determine whether the rules should be
amended to revise those provisions concerning the grand jury deliberation process,
and (c) determine if there are inconsistencies between the statutes and the rules that
should be reconciled.

The Task Force now submits its final report and recommendations. The Task Force hopes the
report will serve as an educational document for those unfamiliar with the grand jury system and
that the information and 10 recommendations outlined in the report will provide a framework for
improving this system.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

SUMMARY OF RECOMMENDATIONS
Recommendation
1.
Grant the Ohio Attorney General’s Office exclusive authority to
investigate and prosecute police lethal use-of-force cases through its
Special Prosecutions Section and the Bureau of Criminal Investigation.

Page No.
6

2.

Amend the Ohio Jury Instructions regarding the role of the grand jury
so as to emphasize the grand jury’s independence.

10

3.

Improve grand jury orientation and education by providing a written
copy of the judge’s instructions for the grand jury to keep and
encouraging jurors to re-read the instructions before hearing cases.

11

4.

Restructure Crim.R. 6 to increase clarity and reader comprehension.

12

5.

Amend Crim.R. 6 to address the record of grand jury proceedings,
including who has responsibility for creating and maintaining the
record, as well as what is to be included in the record.

13

6.

Amend Crim.R. 6 to establish a standardized procedure to allow for the
limited release of the record of the grand jury proceedings.

14

7.

Create an informational grand jury video.

18

8.

Create an informational grand jury brochure.

18

9.

Have the Supreme Court work with other justice partners to create new
outreach and educational opportunities.

19

10.

Amend R.C. Chapter 2939 to harmonize it with the grand jury
composition and organizational requirements in Crim.R. 6.

20

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

REPORT AND RECOMMENDATIONS
I.

POLICE LETHAL USE OF FORCE

Introduction:
Many of the state and national events that led to the creation of the Task Force involved
instances of police lethal use of force (“PLUF”). In light of this, a primary goal of the Task Force
was to address the use of grand juries in this context to determine if new processes or procedures
are needed to ensure fairness and equality in cases involving PLUF. If so, the Task Force was to
make recommendations for improved processes or procedures in such cases.
The Task Force recognized early in its deliberations that county prosecuting attorneys in whose
jurisdiction a fatal police shooting takes place are in an inherently difficult position. To be
effective, prosecuting attorneys must work on an almost daily basis with law enforcement
personnel in their jurisdiction. This often includes extensive interaction during the course of
felony investigations and trial preparation. And in a substantial percentage of felony
prosecutions, the primary witnesses for the prosecution are police officers.
At the same time, however, county prosecuting attorneys are called upon to investigate the very
same police officers they work with on a daily basis involving the reasonableness of the most
difficult decision those officers make: whether to use lethal force. Though it is presumed that the
prosecuting attorney is in fact objective, impartial, and deliberate in the investigation and
charging decisions, PLUF cases present communities and prosecuting attorneys with highly
charged issues that deserve the utmost consideration for objectivity in practice and in perception.
Judges are sometimes faced with similar challenges when judging certain cases. There are cases
that come before judges in which they know they can be objective, fair, and deliberative in
reaching a decision from which they must nonetheless disqualify themselves due to the
appearance that they may not. Indeed, we expect judges to recuse themselves to avoid even the
appearance of impropriety because the effectiveness of the justice system is dependent upon
garnering and retaining the public’s trust and confidence in its integrity. This is precisely why
Jud.Cond.R. 2.11(A) states in pertinent part, “A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned …” (emphasis
added). There are cases that come before judges in which they know they can be fair and
impartial, but from which they must disqualify themselves due to the appearances and the
importance of retaining the trust of both individual litigants and the public in the integrity of the
justice system.
This report does not question ‒ and in fact it recognizes and commends ‒ the high integrity and
professionalism attributed to county prosecuting attorneys. Rather, it simply recognizes that
public perception is not uniform in cases where law enforcement uses lethal force that results in
civilian death. County prosecuting attorneys work quite closely on a daily basis with law
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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

enforcement officers to prosecute those charged with crimes. When prosecuting attorneys take
on a necessarily investigative and potentially adversarial role in PLUF cases, the need to
preserve public confidence is significantly heightened. 1
Based on the foregoing, the Task Force strongly recommends the General Assembly establish a
consistently applied system for investigating all PLUF cases, including, but not limited to the
appointment of special prosecutors external from the county of the PLUF incident. 2 To that end,
the Task Force has identified a specific system utilizing the resources of the Ohio Attorney
General’s Office that it believes would serve to engender and retain public confidence in the
impartiality of the grand jury system in PLUF cases.
Recommendation 1:
The Task Force recommends the Ohio Attorney General’s Office be granted
exclusive authority to investigate and prosecute police lethal use-of-force cases through its
Special Prosecutions Section and the Bureau of Criminal Investigation. 3
Discussion:
The Ohio Attorney General’s Office presently has the express statutory authority to prosecute
several specific types of criminal cases, but only after the local county prosecuting attorney fails
to exercise the right of first refusal. For example, in the prosecution of criminal cases developed
by the Ohio Organized Crime Investigation Commission, the following right of first refusal
system is in place (R.C. 177.03(D)(2)(a)):
If a prosecuting attorney who has been referred information under this
division fails to notify the commission in writing, within thirty days after
the referral, that the prosecuting attorney will present the information to
the grand jury of the prosecuting attorney's county, the task force, except
1

The prosecution of a sheriff’s deputy might raise an additional and specific question that goes beyond appearances.
R.C. 309.09(A) provides: “The prosecuting attorney shall be the legal adviser of the board of county commissioners,
board of elections, all other county officers and boards …” The county sheriff is a county officer under R.C. Chapter
311. Absent insurance counsel, the county prosecutor would represent a sheriff’s deputy in an excessive use-of-force
civil case. Therefore, if a sheriff’s deputy uses lethal force, Prof.Cond.R. 1.7(a)(2) would be implicated for the
sheriff’s county prosecutor. Prof.Cond.R. 1.7 identifies a conflict in circumstances when “there is a substantial risk
that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be
materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by the
lawyer’s own personal interests.” The same analysis would apply to township officers under R.C. 309.09(B)(1).
2

There is legislation pending in nine other states that proposes this same solution as of the drafting of this report.
Those states are California, Iowa, Kansas, Massachusetts, Missouri, Nebraska, New Jersey, New York, and
Pennsylvania.
3

This includes only cases that result in a fatality.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

as provided in division (D)(2)(b) of this section, shall refer a copy of all of
the information to the attorney general, who shall proceed [to prosecute]
according to division (B) of section 109.83 of the Revised Code. 4
The Bureau of Criminal Investigation (“BCI”) within the Ohio Attorney General’s Office has
similarly limited investigatory jurisdiction. Under R.C. 109.541, BCI generally only has
authority to investigate crimes on the invitation of local law enforcement.
The Ohio Attorney General’s Office also houses a Special Prosecutions Section. The Section is
comprised of more than a dozen trial prosecutors, all of whom had extensive criminal
prosecution experience prior to joining the Attorney General’s Office. The Section can act, upon
request of the appropriate local authority, as lead prosecuting attorney in cases where a conflict
of interest exists. In addition, local prosecuting attorneys can call on the Section members to
serve as assistant prosecutors in cases where their specialized knowledge can be utilized or if
there is a lack of local resources to effectively prosecute a case.
Attorneys with the Special Prosecutions Section are routinely involved in the prosecution of
unique and complex cases and have specialized backgrounds in prosecuting crimes, such as
synthetic and prescription drug abuse, crimes against children, capital murder, cold case
homicides, white collar crime, and public corruption. In 2015, the Section opened more than 505
cases in 67 counties.
The services of the Special Prosecutions Section currently come at no cost to the jurisdiction that
requests the Section’s assistance. However, given the significant increase in workload required to
investigate and prosecute PLUF cases statewide, the Task Force recommends that the budget of
the Ohio Attorney General’s Office be increased as needed to accommodate the anticipated
caseload increase.
The advantages to granting the Ohio Attorney General’s Office exclusive authority to investigate
PLUF cases through BCI and, if necessary, prosecute PLUF cases through the Special
Prosecutions Section include the reality that the Attorney General does not have the close
working relationship that the local prosecuting attorney has with local law enforcement officers
who may be subject to an investigation in a case involving a PLUF incident. This “step
removed” from local law enforcement would serve to increase public confidence that decisions
on the investigation and, if needed, presentation of a PLUF case to a grand jury are being made
objectively, impartially, and with great deliberation.
An additional advantage is promoting a higher degree of uniformity as to how PLUF cases are
investigated throughout the state. Requiring that BCI be the sole agency responsible to
investigate PLUF cases would not only further serve to increase public confidence in
4

The Ohio Attorney General also has specific statutory authority to prosecute cases of workers’ compensation fraud
(R.C. 109.84), Medicaid fraud (R.C. 109.85), and election fraud (R.C. 109.95), all subject to the right of first refusal
of the local county prosecutor in whose jurisdiction the crime was committed.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

impartiality, but also promote greater statewide uniformity in the investigative approach and,
where necessary, presentation to a grand jury.
A third advantage would be continuity if BCI undertakes the investigation from the very
beginning. It is the specific recommendation of the Task Force that any implementing legislation
require that any PLUF case be immediately turned over to BCI to ensure this continuity from the
initial investigation and throughout the remainder of the justice process.
It should be noted that there is a disadvantage in granting the Ohio Attorney General’s Office
exclusive authority to prosecute PLUF cases. This would be the first type of case for which the
Attorney General is given exclusive authority to prosecute a matter without the local prosecuting
attorney enjoying a right of first refusal or inviting the Attorney General to provide prosecutorial
assistance. This “first” could be viewed as an encroachment by the state government into areas
traditionally reserved for local government.
However, the Task Force strongly believes that the advantages to granting the Ohio Attorney
General’s Office exclusive authority to investigate and prosecute PLUF cases greatly outweigh
that disadvantage. PLUF cases present unique challenges to prosecuting attorneys and courts
generally not found in other types of cases relative to the investigation and the public’s
perception of the outcome of that investigation. Often much of the information concerning the
PLUF is public, even before an in-depth investigation is opened. As a result, public perceptions
can be formed, even in the absence of a complete review of the facts and circumstances of the
case. It is particularly important, therefore, that the investigation of an incident, the possible
presentation to a grand jury, and, where warranted, prosecution for PLUF cases be conducted
with the utmost respect of the officers involved and the public’s immediate and long-term
interest in the integrity of the justice system. Based on the foregoing, the Task Force respectfully
urges the Ohio General Assembly to introduce and pass legislation that gives the Attorney
General’s Office exclusive authority to investigate and prosecute PLUF cases through BCI and
the Special Prosecutions Section. 5
Finally, Representative Cupp states he generally supports this recommendation, but with
limitations, as he finds the current recommendation to be overly inclusive. His position is based
upon the following observations:
•

Not every PLUF case produces distrust in the criminal justice system. Thus, there is
not a need for every such case to automatically become the primary responsibility of
the Ohio Attorney General’s office.

•

The recommendation would be needlessly expensive because it would produce no
greater confidence in the grand jury system in the cases that do not address the
societal concerns, which the recommendation seeks to alleviate;

5

This recommendation should not be construed as an endorsement of any pending legislation that may exist as of
the drafting of this report.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

• There are cases that need not become the primary responsibility of the Ohio Attorney
General’s Office (e.g., cases where the deceased intended to be killed as a form of
suicide and hostage situations). A screening mechanism should be created to
eliminate from the automatic authority of the Attorney General’s Office those cases
where the facts do not support a prima facie appearance of improper or unreasonable
use of lethal force.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

II.

ROLE OF JUDICIARY, PROSECUTION, AND GRAND JURY

Introduction:
The operation of the grand jury system involves three distinct entities, each with its own role and
responsibilities: the judiciary, prosecuting attorneys, and grand jury members. The successful
operation of the grand jury system is dependent upon each and the effective performance of their
responsibilities. With this in mind, the Task Force addressed the following questions: (1)
whether more extensive directions should be included in the Ohio Jury Instructions (“OJI”), (2)
whether there is a need for improved grand juror orientation and education, and (3) whether the
current balance between prosecutorial and judicial roles in the grand jury system needs to be
modified.
In addressing these questions, the subcommittee focused on one overarching concept: the grand
jury’s independence. While Ohio’s judiciary and prosecuting attorneys certainly have a role to
play in the grand jury system, their involvement should never overshadow the grand jury’s
inherent power to make its own decisions. Based upon that focal point, the Task Force sought
ways for the judiciary and prosecution to enhance the grand jury’s independence, and presents
the following recommendations.
Recommendation 2:
The Task Force recommends amending the Ohio Jury Instructions regarding the
role of the grand jury so as to emphasize the grand jury’s independence.
Discussion:
Currently, section CR 301.07 of the OJI contains a sample format of the charge a judge is
required to read to the grand jury once it is impaneled. 6 While the current OJI version of this
charge makes reference to the grand jury’s independence, the Task Force proposes changes to
emphasize this independence.
Specifically, the OJI should state that the grand jury foreperson has the ability to request advice
from the court at any time (see lines 110 and 111 of Appendix A). Additionally, the OJI should
indicate the grand jury is allowed to ask the prosecuting attorney for any other charges that may
be considered, based upon the facts presented to the grand jury (see lines 113 through 115 of
Appendix A). Furthermore, there should be a distinct section emphasizing that grand jurors are
the “sole judges of the facts” (see lines 156 through 160 of Appendix A).

6

R.C. 2939.07.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

Recommendation 3:
The Task Force recommends improving grand jury orientation and education by
providing a written copy of the judge’s instructions for the grand jury to keep and
encouraging jurors to re-read the instructions before hearing cases.
Discussion:
While the court is required to instruct a grand jury on its legal duties, it only does so once. The
Task Force recommends the OJI instructions be amended to state that the jurors be provided with
a written copy of the instructions that they may keep (see lines 6 through 10 of Appendix A). A
grand jury may be tasked with listening to several days of testimony, spread out over several
months. By allowing jurors to keep a written copy of the court’s legal instructions, the grand jury
can refer to them as needed. Furthermore, suggesting that jurors be given time to re-read these
instructions upon returning for subsequent meetings increases the grand jury’s awareness of their
own independence and authority.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

III.

GRAND JURY SECRECY

Introduction:
The United States has a long tradition of preserving the secrecy of grand jury proceedings. This
secrecy is necessary for a variety of reasons, including each of the following: 7
•

To prevent the escape of those whose are the subject of the grand jury and potential
indictment;

•

To ensure the freedom of the grand jury in its deliberations and to prevent persons
subject to indictment or associated with such persons from influencing the jurors;

•

To prevent the tampering with witnesses who may testify before the grand jury and
later appear at the trial of those indicted by it;

•

To encourage free and untrammeled disclosures by persons who have information
with respect to the commission of crimes;

•

To protect innocent parties from disclosure of the fact that they have been under
investigation.

However, because few citizens possess personal experience with the grand jury system, an
unfortunate side effect of this secrecy is the general lack of public understanding of the system
and how it operates. In turn, this limited understanding has negatively impacted the public’s
perception of and confidence in the grand jury system.
The Task Force believes the perception of lack of confidence in the grand jury system can be
improved, in part, by addressing grand jury secrecy. To this end, the Task Force recommends
amendments to those portions of Crim.R. 6 governing the secrecy of grand jury proceedings in
the state. If adopted, these amendments would continue the general secrecy of the grand jury
proceedings while allowing limited public access, providing clarity, and promoting uniformity
across the state.
Recommendation 4:
The Task Force recommends restructuring Crim.R. 6 to increase clarity and reader
comprehension.

7

U.S. v. Amazon Indus. Chemical Corp., 55 F.2d 254, 261 (D. Md. 1931)

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

Discussion:
In a single half-page paragraph, current Crim.R. 6(E) addresses (1) the general disclosure of
grand jury deliberations and grand juror votes, (2) the disclosure of other matters occurring
before the grand jury by the prosecuting attorney for use in official duties, (3) the general
disclosure of other matters occurring before the grand jury by a grand juror, interpreter, etc.
when directed by the court, (4) the disclosure of indictments, (5) the sealing of indictments, and
(6) the docketing and disclosure of sealed indictments.
The Task Force believes Crim.R. 6 could be improved through the simple restructuring of the
rule. Specifically, the Task Force proposes retaining the current substantive provisions of
Crim.R. 6(E), but relocating them to the end of the rule and then reorganizing them to
individually address each of the following topics concerning the secrecy of matters occurring
before the grand jury: (1) the general requirement of secrecy, (2) disclosures of matters to
prosecuting attorneys, (3) disclosures of matters by direction or permission of the court, and (4)
disclosures of indictments (see lines 44 through 60 and 89 through 115 of Appendix B).
Recommendation 5:
The Task Force recommends amending Crim.R. 6 to address the record of grand
jury proceedings, including who has responsibility for creating and maintaining the record,
as well as what is to be included in the record.
Discussion:
Current Crim.R. 6(E) focuses on the proceedings and other matters occurring before a grand
jury, but it does not address the actual record of the grand jury proceedings. The Supreme Court
has interpreted Crim.R. 22 as mandating that all grand jury proceedings must be recorded. 8
Although there are limited statutory provisions that allow for the keeping of minutes and notes
from the grand jury proceedings, the Task Force found that currently there is no single standard
governing who creates a full record of the grand jury proceedings (e.g., a court reporter), nor
who maintains that record (e.g., the court reporter, the clerk, the court itself, etc.). Thus, the
responsibility for these functions differs from court to court. 9
In order to make any recommendations regarding the secrecy of the record of grand jury
proceedings, there must be a certain degree of uniformity as to how the record is produced and
8

State v. Grewell, 45 Ohio St. 3d 4, 8 and 9 (1989).

9

R.C. 2939.09 states that the grand jury may appoint one of its members to serve as a clerk and preserve the minutes
of its proceeding and actions. Additionally, R.C. 2939.11 provides that the official reporter of the county, or any
reporter designated by the court of common pleas, at the request of the prosecuting attorney, or any such reporter
designated by the attorney general in investigations conducted by the attorney general, may take notes of or
electronically record testimony before the grand jury, and furnish a transcript to the prosecuting attorney or the
attorney general, and to no other person. If the proposed amendments to Crim.R. 6 concerning the recording of the
proceedings are adopted, the Task Force recommends these statutes be addressed.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

maintained. To this end, the Task Force believes Crim.R. 6 should be amended to provide the
following:
•

The court reporter or other person designated by the court should be responsible for
preparing a record of the grand jury proceedings (see lines 121 and 122 of Appendix
B);

•

The record should consist of a recording of the proceedings and include the
proceedings’ name and number, the charge to the jury, the names of the witnesses
appearing before the grand jury, the instructions given by or statements made by the
court and the prosecuting attorney; the questions asked of witnesses and their
responses; and statements or questions made by a grand juror, provided the name or
identity of the grand juror is not recorded (see lines 122 through 137 of Appendix B);

•

The record should not include a recording of the grand jury’s deliberations, the vote
of individual grand jurors, and the names of the grand jurors (see lines 139 and 140 of
Appendix B);

•

After the grand jury returns an indictment or no-true bill, the record of the grand jury
proceedings should be filed under seal with the clerk of the court (see lines 142
through 144 of Appendix B).

Recommendation 6:
The Task Force recommends Crim.R. 6 be amended to establish a standard
procedure to allow for the limited release of the record of the grand jury proceedings.
Discussion:
As noted, there are important reasons for the secrecy of grand jury proceedings. However, a side
effect of this secrecy, coupled with the fact that few citizens possess personal experience with the
grand jury system, is that the public generally lacks an understanding of the system and how it
operates. This limited understanding can negatively impact the public’s perception of and
confidence in the grand jury system.
There were a range of views on the Task Force as to what changes should be made to current
Crim.R. 6 regarding secrecy of grand jury proceedings. Ultimately, balancing the necessity of
maintaining grand jury secrecy with the need for public understanding and maintaining trust and
confidence in the system, the Task Force proposed a mechanism by which some information
from the records of grand jury proceedings could be made publicly available under limited
circumstances.
Under the proposed new language, the record of grand jury proceedings would be presumed
exempt from public access (i.e., inspection and copying) under the Public Access Rules of the
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Rules of Superintendence for the Courts of Ohio (Sup.R. 44 through 47) (see lines 148 through
150 of Appendix B). This would be in contrast to the presumption under Sup.R. 45(A) that court
records are open to public access.
However, there would be limited instances in which the record of the grand jury proceedings
could be made available. First, the clerk of the court could release the record or portions thereof
to the prosecuting attorney for use in the performance of the prosecuting attorney’s duties,
provided the prosecuting attorney could not release the record or a portion of it unless ordered or
directed otherwise by a court (see lines 152 through 155 of Appendix B).
Additionally, after the record of the grand jury proceedings in which a no-true bill was returned
or the proceedings concluded without an indictment is filed with the clerk of the court, any
person could file a written petition seeking the release of the record or portions of it (see lines
157 through 163 of Appendix B). The petition would have to state with particularity the reason
for which it is made and how the presumption of secrecy is outweighed by the public interest in
disclosure and transparency (see lines 163 through 165 of Appendix B). It is important to note
that these requirements would be in contrast with the Public Access Rules, which do not require
a requestor to identity him or herself, put the request in writing, nor state the reason for the
request.
If the prosecutor sought to indict two or more suspects in the grand jury proceedings for the same
offense or offenses and at least one suspect is indicted, the court could not consider the petition
until the offense or offenses had been resolved by dismissal, plea (including a plea to a lesser
offense), finding of guilt, or acquittal (see lines 167 through 170 of Appendix B).
If the court were to find the petition states with particularity the reason for which it is made and
how the presumption of secrecy is outweighed by the public interest in disclosure and
transparency, the court must schedule a hearing on the request. The court would be required to
notify the requestor and the prosecuting attorney. The court would be required to also hold any
hearing in camera (i.e., in private) so as to prevent unnecessary disclosure of a matter occurring
before the grand jury. (See lines 175 through 178 of Appendix B.)
Following the hearing, the court could then order the release if it finds by clear and convincing
evidence that each of the following conditions are met (see lines 180 through 192 of Appendix
B):
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The presumption of secrecy is outweighed by the public interest in disclosure and
transparency;

•

A significant number of members of the general public in the county in which the
grand jury was drawn and impaneled are currently aware that a criminal investigation
has been conducted in connection with the subject matter of the grand jury
proceeding;
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•

A significant number of members of the general public in the county in which the
grand jury was drawn and impaneled are currently aware of the identity of the subject
against whom the criminal charge was submitted to a grand jury.

Finally, prior to releasing the record of the grand jury proceedings or a portion of the record, the
court would be required to give the prosecuting attorney a reasonable opportunity to request
redaction of any information the release of which could do any of the following (see lines 194
through 212 of Appendix B):
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Identify grand jurors;

•

Endanger the health, safety, or welfare of witnesses appearing before the grand jury,
the members of the grand jury, other persons who are part of the proceedings, or other
persons who may be endangered by the release of the record;

•

Compromise an ongoing criminal investigation or other criminal proceeding that is
not yet public;

•

Alert the suspect in a grand jury investigation of that investigation or the existence of
an indictment not yet perfected;

•

Create a miscarriage of justice;

•

Prejudice a co-defendant’s right to a fair trial.

The court could charge its “actual costs,” as that term is defined under the Public Access Rules, 10
that are incurred in releasing the record. Additionally, the court could require a deposit of the
estimated actual costs. (See lines 214 through 216 of Appendix B).
A noteworthy aspect of this recommendation is that it is not limited to just PLUF cases. As
previously discussed, many of the state and national events that led to the creation of the Task
Force involved instances of PLUF. In light of this, there was discussion of allowing public
access to the grand jury proceedings only in such cases.
However, the Task Force determined that the desire for public access in PLUF cases ultimately
stems from the fundamental issues of public interest and the interest of justice. Today these
issues are implicated by PLUF cases. However, in the future other case types may raise these
issues (e.g., corruption in office grand jury proceedings). The Task Force concluded that the best
approach would be not to allow public access in only one specific category of case, but rather to
establish a system by which the issues of public interest and the interest of justice are addressed,
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Sup.R. 44(A) defines “actual cost” as meaning “the cost of depleted supplies; records storage media costs; actual
mailing and alternative delivery costs, or other transmitting costs; and any direct equipment operating and
maintenance costs, including actual costs paid to private contractors for copying services.”

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regardless of the case type, provided the grand jury proceeding concluded with a no-true bill or
without an indictment.
A minority of the members dissented from the majority’s recommendation. 11 Although they
would support the limited release of the record in appropriate and compelling circumstances,
they were unable to vote for the recommendation for the following reasons:
•

The recommended standard for a judge to determine when the grand jury proceedings
will be made public is too general and lacks sufficient guidance for a court’s
determination in this sensitive matter. Consequently, widely inconsistent and
unpredictable decisions are likely to result for the following reasons:
a. The lack of specific factors for determining when the presumption of secrecy
is outweighed by the public interest;
b. The lack of specificity in the meaning of “public interest,” given that any
person could seek release of the grand jury proceeding record;
c. The lack of a specific standard for determining when a significant number of
members of the general public are currently aware of the grand jury
proceedings.

11

•

Concern that the proposal may affect substantive rights accorded by the traditional
secrecy aspects of the grand jury proceedings, which are beyond the constitutional
authority of the Supreme Court to alter or abrogate;

•

Concern that the confidentiality that the grand jury process has traditionally afforded
to those whom the grand jury has refused to indict could be stripped away even in
cases of unwarranted prosecution and, as a result, the unfounded allegations against
the innocent would nevertheless be laid out for public view;

•

The potentially burdensome time and resource costs for county prosecutors in
responding to requests for access to and the redaction of information from the grand
jury proceeding record.

Senator Bacon, Judge Campbell, Representative Cupp, Judge Goulding, Prosecutor Lutz, and Judge Powers.

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IV.

PUBLIC PERCEPTION OF AND EDUCATION ABOUT THE GRAND JURY
SYSTEM

Introduction:
A key to public trust in the grand jury system is the public’s understanding of the system. As
previously discussed, because of grand jury secrecy and the fact that few citizens possess
personal experience with the grand jury system, there is a general lack of public understanding of
the system. This limited understanding has negatively impacted the public’s perception of and
confidence in the grand jury system.
The Task Force’s previous recommendations concerning the secrecy of the grand jury
proceedings are aimed at dealing with this problem. However, the Task Force believes that
public education about the grand jury system also plays an important role in addressing the
public’s perception of and ensuring public confidence in the system. Additionally, an individual
who has knowledge of the grand jury system is more likely to understand the important civic
duty he or she will undertake as a grand juror.
To this end, the Task Force presents the following education-related recommendations.
Recommendation 7:
The Task Force recommends the creation of an informational grand jury video.
Discussion:
In 2015, the Supreme Court, in collaboration with the Ohio Judicial Conference, the Ohio State
Bar Association, and the Ohio Channel, created an informational video that provides an
overview of Ohio’s court system and the petit jury. The Task Force recommends that a similar
video be created for the grand jury and be made available to all Ohio judges and courts as a way
to educate potential members of the grand jury. This video could be made available also to
schools and public educational entities to serve as a tool for educating students and the public in
general on the key role the grand jury plays in our judicial system. A sample grand jury video
script is attached as Appendix C.
Recommendation 8:
The Task Force recommends the creation of an informational grand jury brochure.
Discussion:
To supplement the grand jury video, the Task Force believes a grand jury service brochure
should be developed or used to educate prospective jurors before they report for jury duty.
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Courts could use a generic brochure or they can customize it for their court. Additionally, this
brochure could be made available for more general public educational efforts.
Recommendation 9:
The Task Force recommends the Supreme Court work with other justice partners
to create new outreach and educational opportunities.
Discussion:
There are a number of legal-related entities in Ohio that currently engage in various educational
efforts, including the Ohio State Bar Association, Ohio State Bar Foundation, the John Mercer
Langston Bar Association, the Norman S. Minor Bar Association, Ohio Center for Law-Related
Education, Ohio Judicial College, Ohio Judicial Conference, Ohio Jury Management
Association, Ohio Association for Court Administration, Ohio Clerk of Courts Association, law
schools, and local bar associations. Additionally, there are educational entities, such as the Ohio
Department of Education and the Ohio Council for Social Studies. Finally, there are community
groups with an interest in this topic, including the NAACP and the Urban League. The Task
Force recommends the Supreme Court work with these entities to create new outreach and
educational opportunities.
For example, the Ohio Center for Law-Related Education (“OCLRE”) provides programs
focused on imparting practical law-related information to students and teachers, developing
problem-solving and critical thinking skills for students, and providing positive engagement
between students and the community. The Supreme Court should work with the OCLRE to
establish grand-jury-related educational materials for use in Ohio schools.
Likewise, the Ohio State Bar Association’s Law and Media Conference brings together
journalists, lawyers, academics, judges, and others for a day-long discussion of important media
law topics. A future topic for the conference could be the grand jury system.

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V.

RULE AND STATUTE REVIEW/RECONCILIATION

Introduction:
As previously discussed, many aspects of the grand jury system are governed by Supreme Court
rule, in particular Crim.R. 6. However, there are also applicable statutory provisions.
Specifically, R.C. Chapter 2939 governs many aspects of the grand jury system, including the
selection and composition of jurors and witness testimony.
Because the grand jury system is governed by both rule and statute, there is the potential for
conflicts between the two. With this in mind, the Task Force reviewed the Ohio Revised Code
and Supreme Court rules in order to identify inconsistencies between the two and recommend
any necessary amendments to reconcile those inconsistencies.
Recommendation 10:
The Task Force recommends amending R.C. Chapter 2939 to harmonize it with the
grand jury composition and organizational provisions in Crim.R. 6.
Discussion:
The Task Force has identified various instances in which the provisions of Crim.R. 6 and R.C.
Chapter 2939 should be harmonized, particularly those concerning grand jury composition and
organization. In each of these instances, the Task Force believes it is R.C. Chapter 2939 that
should be amended in recognition that the grand jury process is, in practice, an extension of the
judicial process and not an executive function. The recommended harmonization amendments to
R.C. Chapter 2939 include the following topics:
•

The role of the foreperson;

•

The processing of alternate jurors;

•

The procedure in Crim.R. 6 requiring that seven of the nine jurors are required for
an indictment;

•

The number of members of a grand jury. 12

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The Task Force determined that most ‒ and likely all ‒ of the courts in Ohio use nine jurors, as is required in
Crim.R. 6(A). This practice is likely in place due to a decision by the Supreme Court of Ohio in State v. Brown, 38
Ohio St. 3d 305 (1988), in which the Court held that the number of jurors is procedural, and that the requirement of
Crim.R. 6 for nine grand jurors should take precedence over the requirement in R.C. 2939.02 of 15 grand jurors. To
avoid confusion, the Task Force believes R.C. 2939.02 should be amended to require nine jurors.

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APPENDIX A
PROPOSED NEW OHIO JURY INSTRUCTIONS

CR 301.07 Instructions to Grand Jurors13

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COMMENT
The Court is required to read instructions to the impaneled grand
jury. See R.C. §2939.07. Copies of the instructions should be given
to each grand juror to use during their term of service, as well as a
copy of the grand jury oath. The committee believes in some
circumstances the prosecuting attorney should allow the grand
jurors to read again the instructions before hearing cases.
I will now give you the instructions of law governing you in the performance of your
duties. It is mandatory that you follow these instructions.
FUNCTION
The Constitution of Ohio provides that no person may be placed on trial for a felony
unless indicted by a grand jury. You will hear testimony and determine whether persons
suspected of the commission of crime should or should not be indicted. This constitutional
provision was designed to be a barrier against unjust prosecution. The grand jury should be the
means of protecting persons from unfounded accusations. Indictments should be returned against
those who you find are probably guilty of the commission of a crime, after an honest and
impartial examination.
SECRECY
The oath just administered to you contains some essential principles that should govern
you in your deliberations. It contains your promise to keep secret the testimony and deliberations
of the grand jury.
There are four reasons for this oath of secrecy. First, you may have accusations brought
before you, which, after examination, you will find unfounded. If publicity were given to the fact
that the grand jury had investigated a person or organization, their reputation might be ruined.
Secondly, if a person who is likely to be charged with a criminal offense by the grand jury
should learn of the investigation, he or she might flee. Thirdly, to protect grand jurors in their
duties to be free of possible undue influence. Finally, to protect witnesses from intimidation if
known to be testifying and to protect their identity in some circumstances.
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These new jury instructions would replace the current instructions in CR 301.07 in their entirety.

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The deliberations of the grand jury and the individual vote of any grand juror shall not be
disclosed. Disclosure of matters other than your deliberations and your individual votes may be
made to the prosecuting attorney for use in the performance of his/her duties. A grand juror,
prosecuting attorney, and other official assisting the grand jury may disclose matters occurring
before the grand jury, other than the deliberations or the vote, when and only when so directed
by this court preliminary to or in connection with a judicial proceeding.
No grand juror, officer of the court, or other person shall disclose that an indictment has
been found against a person or organization before such indictment is filed and the case
docketed.
Your work is protected by law. It is a crime for others to attempt to influence, intimidate,
or hinder you in the discharge of your duties. Any such attempt should be reported immediately
to the court.
SUFFICIENT EVIDENCE, PROBABLE CAUSE, AND IMPARTIALITY
You will hear only one side of a case. It is not your duty to decide the guilt or innocence
of the accused. It is your duty to determine whether there is sufficient evidence or probable cause
to require the accused to stand trial. If the evidence fails to establish the probability of guilt, you
must refuse to return an indictment.
Unjust or unfounded indictments should not be returned against anyone. On the other
hand, it is equally important that indictments shall be returned against those who are probably
guilty of criminal acts.
You must be fair and just; you must be guided by an impartial spirit. It is your duty to
indict anyone who ought to be indicted and you should not fail to indict such person from either
fear, friendship, reward, or hope of reward. You must present the truth to the best of your ability
and understanding. You must put aside all feelings of prejudice that might in any way interfere
with the impartial performance of your duty. No grand juror has the right to permit his or her
judgment to be influenced by a racial, religious, social, political, or personal feeling. You shall
indict no one because of malice, hatred, or ill will.
INVESTIGATIONS
Under the laws of Ohio, you have the power to investigate any crime committed in this
county. You have the power to require any witness to appear and testify before the grand jury in
addition to any witnesses presented by the prosecuting attorney. This is accomplished by the
subpoena power of the Court, and you may continue any case until the witness has testified. No
person may be compelled to be a witness against himself or herself. A witness who testifies
about his or her own participation in a crime must first be advised by the prosecuting attorney in
your presence of his or her constitutional rights.
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Note you are not a general inquiring body. Your authority to investigate crime is almost
unlimited. However, your investigation must be directed by honest and conscientious motives to
determine whether a person or persons should be charged with a specific crime. No investigation
should be made for the purpose of issuing reports intended to criticize or compliment any person
or organization. No person may demand consideration by the grand jury for personal
exoneration. No one may request the grand jury to investigate another for a crime to avoid the
law of libel and slander.
PROSECUTING ATTORNEY
The prosecuting attorney and his/her assistants are by law the representatives of the State
of Ohio in all criminal prosecutions. You will be working with (insert name of prosecutor[s]). It
is his/her duty to present each case, to give advice touching upon any matter of law which may
be raised, and to examine witnesses and present evidence.
During the examination of any witness, any grand juror may ask questions of the witness
in addition to any questions asked by the prosecuting attorney.
The prosecuting attorney will provide instructions to assist you in considering the
evidence and charges to be decided, which will probably be sufficient. It is your duty to follow
the instructions of the prosecutor on matters of law, unless you are instructed to the contrary by
the court. The grand jury foreperson is at liberty at any time to contact the court, either directly
or through the prosecuting attorney, for further or additional instructions.
When considering offenses for indictment, the grand jury may ask the prosecuting
attorney for all possible charges which may be considered based upon the facts as the grand jury
finds them. The grand jury may vote to indict or not indict on any or all offenses presented.
WHO MAY BE PRESENT
The prosecuting attorney, grand jurors, the witness under examination, interpreters when
needed, and a stenographer or operator of a recording device may only be present while the
grand jury is in session. The grand jury is not a public proceeding. While deliberating or voting,
no person other than the grand jurors voting may be present.
INDICTMENT
Nine grand jurors will deliberate to decide each case. An indictment may be found only
upon the concurrence of seven or more grand jurors. When so found, the foreperson shall sign
the indictment in that capacity and shall return it to the court. If the accused is in custody or has
been released to bail, and seven jurors do not concur in finding an indictment, the foreperson
shall immediately report to the court that no indictment was returned.
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FOREPERSONS AND ALTERNATES
_______________________ is appointed foreperson of this grand jury. The foreperson
shall have the power to administer oaths and affirmations. The foreperson or another juror
designated by him/her shall file the record of the vote with the clerk of courts. The record shall
not be made public except on order of the court.
Alternate grand jurors, in the order in which they are called, shall replace grand jurors
who are unable or disqualified to perform their duties. Alternate grand jurors may be present
while the grand jury is in session, except that only the nine voting grand jurors may be present
during deliberation and vote.
COUNTY JAIL (ADDITIONAL)
It is the duty of the grand jury every three months to visit the county jail, examine its
condition, and inquire into the discipline and treatment of the prisoners, their habits, diet, and
accommodations. You shall report on these matters to the court in writing.
INDEPENDENCE
As an investigative body, the grand jury is independent in the performance of its duties.
You are the sole judges of the facts in each case. Neither the prosecuting attorney nor any
assistant has the right to influence you in your decision upon questions of fact. Each grand juror
shall decide whether to vote to indict or not indict completely free of any influence or suggestion
by the prosecuting attorney or any other person. This is your role as an independent grand juror.
CONCLUSION
I want to thank you in advance for taking time out of your busy lives to undertake this
very important civic duty. I realize that each of you is making a personal sacrifice, but I believe
you will find this experience to be one of the most interesting of your lives. You will be
performing one of the absolutely vital functions in the administration of justice under our
American system. This is direct citizen participation in government. You have the thanks of this
Court, and the community at large.
Any questions?
Anything from the prosecuting attorney?
You may now retire to begin your duties.

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APPENDIX B
PROPOSED CRIM.R. 6 AMENDMENTS
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OHIO RULES OF CRIMINAL PROCEDURE
RULE 6.

The Grand Jury

(A)
Summoning grand juries. The judge of the court of common pleas for each
county, or the administrative judge of the general division in a multi-judge court of common
pleas or a judge designated by him, shall order one or more grand juries to be summoned at such
times as the public interest requires. The grand jury shall consist of nine members, including the
foreman, plus not more than five and a number of alternates as provided in division (G) of this
rule.
(B)

Objections to grand jury and to grand jurors.

(1)
Challenges. The prosecuting attorney, or the attorney for a defendant who has
been held to answer in the court of common pleas, may challenge the array of jurors or an
individual juror on the ground that the grand jury or individual juror was not selected, drawn, or
summoned in accordance with the statutes of this state. Challenges shall be made before the
administration of the oath to the jurors and shall be tried 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 or more members of the grand jury were not legally qualified, if it appears from the record
kept pursuant to subdivision (C) that seven or more jurors, after deducting the number not legally
qualified, concurred in finding the indictment.
(C)
Foreman and deputy foreman. The court may appoint any qualified elector or
one of the jurors to be foreman and one of the jurors to be deputy foreman. The foreman shall be
a member of the grand jury for purpose of voting. The foreman shall have power to administer
oaths and affirmations and shall sign all indictments. He The foreman or another juror designated
by him the foreman shall keep a record of the number of jurors concurring in the finding of every
indictment and shall, upon the return of the indictment, file the record of concurrence with the
clerk of court, but the for inclusion with the record of the proceedings filed pursuant to division
(I)(2) of this rule. The record of concurrence shall not be made public except on order of the
court as provided in division (J) of this rule. During the absence or disqualification of the
foreman, the deputy foreman shall act as foreman.

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(D)
Who may be present. The prosecuting attorney, the witness under examination,
interpreters when needed, and, a court reporter or other person designated by the court for the
purpose of taking the evidence, a stenographer or operator of a recording device and preparing a
record of the proceedings 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)
Secrecy of proceedings and disclosure. Deliberations of the grand jury and the
vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the
grand jury may be made to the prosecuting attorney for use in the performance of his duties. A
grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or
typist who transcribes recorded testimony, may disclose matters occurring before the grand jury,
other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such
matters only when so directed by the court preliminary to or in connection with a judicial
proceeding, or when permitted by the 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. No grand juror, officer of the court, or other person shall disclose that an indictment
has been found against a person before such indictment is filed and the case docketed. The court
may direct that an indictment shall be kept secret until the defendant is in custody or has been
released pursuant to Rule 46. In that event the clerk shall seal the indictment, the indictment shall
not be docketed by name until after the apprehension of the accused, and no person shall disclose
the finding of the indictment except when necessary for the issuance of a warrant or summons.
No obligation of secrecy may be imposed upon any person except in accordance with this rule.
(F)
Finding and return of indictment. An indictment may be found only upon the
concurrence of seven or more jurors. When so found, the foreman or deputy foreman shall sign
the indictment as foreman or deputy foreman. The indictment shall be returned by the foreman or
deputy foreman to a judge of the court of common pleas and filed with the clerk, who shall
endorse thereon the date of filing and enter each case upon the appearance and trial dockets. If
the defendant is in custody or has been released pursuant to Rule Crim.R. 46 and seven jurors do
not concur in finding an indictment, the foreman shall so report to the court forthwith.
(G)(F) Discharge and excuse. A grand jury shall serve until discharged by the court. A
grand jury may serve for four months, but the court upon a showing of good cause by the
prosecuting attorney may order a grand jury to serve more than four months, but not more than
nine months. 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 eligible person
in place of the juror excused.
(H)(G) Alternate grand jurors. The court may order that not more than five grand
jurors, in addition to the regular grand jury, be called, impaneled, and sit as alternate grand
jurors. Unless provided otherwise by local court rule, the number of alternate jurors shall not
exceed five. Alternate grand jurors, in the order in which they are called, shall replace grand
jurors who, prior to the time the grand jury votes on an indictment, are found to be unable or
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disqualified to perform their duties. Alternate grand jurors shall be drawn in the same manner,
shall have the same qualifications, shall be subjected to the same examination and challenges,
shall take the same oath, and shall have the same functions, powers, facilities, and privileges as
the regular grand jurors. Alternate grand jurors may sit with the regular grand jury, but shall not
be present when the grand jury deliberates and votes.
(H)

Secrecy of matters occurring before the grand jury.

(1)
General. Except as provided in divisions (H)(2) through (4) and (J)(1) through
(3) of this rule, matters occurring before a grand jury shall not be disclosed.
(2)
Disclosure to prosecuting attorney. Matters occurring before a grand jury, other
than the deliberations of the grand jury and the vote of a juror, may be disclosed to the
prosecuting attorney for use in the performance of the duties of the prosecuting attorney,
provided the prosecuting attorney shall not disclose such matters unless ordered or directed
otherwise by a court.
(3)
Disclosure by direction or permission of the court. A grand juror, prosecuting
attorney, interpreter, court reporter, operator of a recording device, or typist who transcribes
recorded testimony may disclose matters occurring before the grand jury, other than the
deliberations of the grand jury and the vote of a juror, when directed by the court in either of the
following instances:
(a)

Preliminary to or in connection with a judicial proceeding;

(b)
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.
(4)
Disclosure of indictment. A juror, officer of the court, or other person shall not
disclose that an indictment has been found against a person before the indictment is filed and the
case docketed pursuant to division (E) of this rule. The court may direct that an indictment shall
be kept secret until the defendant is in custody or has been released pursuant to Crim.R. 46. No
obligation of secrecy may be imposed upon any person except in accordance with this rule.
(I)

Record of the Grand Jury Proceedings.

(1)

Creation.

(a)
A court reporter or other person designated by the court shall prepare a record of
the grand jury proceedings. The record shall consist of a recording of the proceedings prepared
by stenographic means, phonogramic means, photographic means, audio electronic recording
devices, or video recording systems. The record shall include all of the following information:
(i)

The name and number of the proceedings;
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(ii)

The charge to the grand jury;

(iii)

The names of witnesses appearing before the grand jury;

(iv)

Instructions given or statements made by the court and the prosecuting attorney;

(v)

Each question asked of and response given by a witness;

(vi)
Statements or questions made by a juror during the proceeding, provided the
name or identity of the juror shall not be recorded.
(b)
The record of the grand jury proceedings shall not include a recording of the
deliberations of the grand jury, the vote of individual jurors, or the names of the jurors.
(2)
Filing. The court reporter or other person designated by the court shall file the
record of the grand jury proceedings under seal with the clerk of the court after the conclusion of
the proceedings.
(J)

Release of the Record of Grand Jury Proceedings.

(1)
Public access exemption. The record of the grand jury proceedings shall be
exempt from public access pursuant to Sup.R. 44 through 47 and not released, except as provided
in divisions (J)(2) and (3) of this rule.
(2)
Release to prosecuting attorney. A clerk of the court may release the record of
the grand jury proceedings or portions thereof to the prosecuting attorney for use in the
performance of the duties of the prosecuting attorney, provided the prosecuting attorney shall not
release the record or portions thereof unless ordered or directed otherwise by a court.
(3)

Other release.

(a)
After the record of the grand jury proceedings in which a no-true bill was returned
or the proceedings concluded without an indictment is filed with a clerk of the court pursuant to
division (I)(2) of this rule, any person may file a written petition seeking the release of the record
or portions thereof of the proceedings in which a no-true bill was returned or the proceedings
concluded without an indictment. The petition shall state with particularity the reason for which
it is made and how the presumption of secrecy is outweighed by the public interest in disclosure
and transparency.
(b)
If the prosecutor sought to indict two or more suspects in the grand jury
proceedings for the same offense or offenses and at least one suspect is indicted, the court shall
not consider the petition until the offense or offenses have been resolved by dismissal; plea,
including a plea to a lesser offense; finding of guilt; or acquittal.
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(c)
If the court finds the petition does not meet the requirements of division (J)(3)(a)
of this rule, the court shall deny the petition.
(d)
If the court finds the petition meets the requirements of division (J)(3)(a) of this
rule, the court shall schedule a hearing on the petition. The court shall notify the requestor and
the prosecuting attorney. The court shall hold the hearing in camera so as to prevent unnecessary
disclosure of a matter occurring before the grand jury.
(e)
Following the hearing, the court may order release of the record or portions
thereof if it finds by clear and convincing evidence that each of the following conditions are met:
(i)
The presumption of secrecy is outweighed by the public interest in disclosure and
transparency;
(ii)
A significant number of members of the general public in the county in which the
grand jury was drawn and impaneled are currently aware that a criminal investigation
was conducted in connection with the subject matter of the grand jury proceedings;
(iii) A significant number of members of the general public in the county in which the
grand jury was drawn and impaneled are currently aware of the identity of the suspect in
the grand jury proceedings.
(f)
Prior to releasing the record or portions thereof, the court shall give the
prosecuting attorney a reasonable opportunity to request redaction of any information the release
of which could do any of the following:
(i)

Identify grand jurors;

(ii)
Endanger the health, safety, or welfare of witnesses appearing before the grand
jury, the members of the grand jury, other persons who are part of the proceedings, or other
persons who may be endangered by the release of the record;
(iii) Compromise an ongoing criminal investigation or other criminal proceeding that
is not yet public;
(iv)
Alert the suspect in a grand jury investigation of that investigation or the
existence of an indictment not yet perfected;
(v)

Create a miscarriage of justice;

(vi)

Prejudice the right of a co-defendant to a fair trial.

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(g)
The court may charge its actual costs, as defined by Sup.R. 44(A), incurred in
releasing the record of the grand jury proceedings or portions thereof. The court may require a
deposit of the estimated actual costs.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

APPENDIX C
GRAND JURY VIDEO SCRIPT
VIDEO

AUDIO

Opening title graphic:
You as a Grand Juror in
Ohio’s Court System

(music)

Narrator/Host with main
courtroom in background

Grand juries play an important role in our judicial system to
protect innocent persons from false accusations; and to be fair
and impartial when evaluating evidence to decide whether
fellow citizens will be placed on trial for criminal offenses.

Graphic of Ohio Court
System, zoom in on Common
Pleas

The grand jury is a part of the common pleas court system in
Ohio.

Graphic or picture to
represent nine jurors/ five
alternates

It is composed of nine people and up to five alternates. All
live in the county and were randomly selected to serve, just
like trial ‒ or petit ‒ jurors are selected.

Picture of oath being
administered and text overlay
of oath appears on screen

Each grand jury member takes an oath that includes a vow of
secrecy – to keep secret all proceedings of the grand jury.
That vow of secrecy is important because it encourages
witnesses to testify who otherwise would be unwilling and it
protects the reputation of the accused if they are not indicted.

Picture of grand jury room or
closed door

All proceedings in the grand jury are conducted in private, not
in a courtroom or with a judge. Members of the public are
only allowed to attend if they are on the witness stand.
Every criminal case begins with a prosecutor reviewing the
evidence to determine whether charges should be brought
against the defendant, or the accused, and if so, what those
charges should be. If the prosecutor chooses to bring felony
charges against the defendant, then he or she must then
present the case to the grand jury in order to move forward
with the case.

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 Report & Recommendations • Supreme Court Task Force to Examine Improvements to the Ohio Grand Jury System

Text overlay definition of
probable cause

Then the grand jury must decide whether there is probable
cause to believe that a crime was committed and that the
person accused committed it.

Picture of a trial or courtroom

That standard is different than if the case goes to trial – there
the person charged has to be found guilty beyond a reasonable
doubt.

Picture of jury or jury box

Unlike a trial jury, in a grand jury, the foreperson and
members may ask proper questions of any witness.

Narrator/Host on camera

After the prosecutor has presented each witness and explained
the law to the grand jury, everyone except the nine grand jury
members must leave the grand jury room.
The foreperson leads a discussion and conducts a vote on
whether to charge the accused.
No vote is taken until each member has had the opportunity to
be heard.
If the grand jury votes to charge the accused, it is known as
finding a true bill or an indictment.
Votes of seven of the nine grand jurors are required to indict.

Picture of columns
with overlay text definition of
indictment

An indictment is merely a charge; it must be proven at trial
beyond a reasonable doubt before someone can be convicted.

Picture of columns
With overlay text definition
of no bill

If there are fewer than the seven votes needed for an
indictment, then the result is called a “no bill” and the case is
dropped.
The prosecutor can bring the case back to the grand jury if
there is new evidence.

Graphic to represent separate
relationship

It’s important to remember that while it’s up to the prosecutor
to present the cases to the grand jury, the grand jury is an
independent body provided for in both the Ohio and U.S.
constitutions.

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The grand jury is not intended to be a rubber-stamp for the
prosecutor, and has the authority to decide there’s not enough
evidence to indict the person accused of a crime.
Narrator/Host on camera

The grand jury operates as a “sword,” authorizing the
government’s prosecution of accused, and as a “shield,”
protecting citizens from unwarranted, inappropriate, or overzealous prosecutions against unfounded or unfair criminal
charges.
Grand jury service is an important civic duty.
(music up and under)
Someone’s freedom may depend on it.

Title graphic, such as
“Production of the Ohio
Supreme Court” or “For more
information about grand jury
service, go to www …”

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THE SUPREME COURT of OHIO

 

65 South Front Street
Columbus, Ohio 432 1 5?343 1