Rule 12.8 Indictment.

Committee Comments

Rule 12.8(a) is in compliance with Ala.Code 1975, § 12-16-204, which mandates a concurrence of at least twelve (12) grand jurors to find an indictment.

Rule 12.8(b) is taken from Ala.Code 1975, § 12-16-204, which requires the indictment to be endorsed “A True Bill” and signed by the foreman. The directions of that section are mandatory, and an indictment not so endorsed is invalid and will not support a conviction. Whitley v. State, 166 Ala. 42, 52 So. 203 (1910); Layton v. State, 23 Ala.App. 297, 124 So. 406 (1929); Honeycutt v. State, 21 Ala.App. 464, 109 So. 371 (1926).

The signature of the district attorney is permissible but not necessary. Mayo v. State, 36 Ala.App. 557, 60 So.2d 860 (1952); Hughes v. State, 213 Ala. 555, 105 So. 664 (1925).

Rule 12.8(c) is intended to conserve the time of court and law enforcement personnel spent in issuing and serving a warrant or summons following return of an indictment in those cases in which the defendant already has been charged with the offense by complaint.

Rule 12.8(d) makes explicit the duty of the foreman to inform the court immediately of the inability of the grand jury to find an indictment.

Rule 12.8(e) tracks Ala.Code 1975, § 12-16-203.

Rule 12.8(f)(1) is based upon Ala.Code 1975, § 12-16-200, which states:

“In the investigation of a charge for any indictable offense, the grand jury can receive no other evidence than is given by witnesses before them or furnished by legal documentary evidence, and any witness may be examined and compelled to testify as to any offense within his knowledge without being specially interrogated as to any particular person, time or place.” Subsection 12.8(f)(1) is based on firmly established case law that a grand jury is permitted to receive and indict on hearsay evidence alone, if furnished by a witness appearing before the grand jury. Costello v. United States, 350 U.S. 359 (1956); Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963); Washington v. State, 63 Ala. 189 (1879).

Subsection 12.8(f)(2) is based on Alabama case law. In Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), the Alabama Supreme Court stated, “If legal evidence is given, … an indictment is not subject to be quashed because there was illegal evidence also given.” There is no authority in Alabama on what constitutes “illegal evidence,” but the implication of the Fikes case is that a coerced confession and illegally obtained evidence may be “illegal” evidence. Thus, an indictment based solely upon a coerced confession or other illegal evidence would be subject to dismissal, but if based in part on legal evidence and only in part on illegal evidence, it would not be subject to dismissal.

See Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965).