Rule 34.5 Entry of Order and Duty of Clerk

Comment Rule 34.5 continues practice under former Rule 11.05 of the Uniform Rules of Circuit and County Court.

APPENDIX

SAMPLE CHARGE TO GRAND JURY

You have been summoned and sworn as a grand juror of the Circuit Court for County ( Judicial District) of the Judicial Circuit of the State of Mississippi. As members of the Grand Jury, you are a part of the judicial branch of state government, an arm of this circuit court. The law of this state provides that grand juries are empaneled and charged concerning their duties only by the circuit judge. In compliance with this law, the court, before you begin your work, instructs you concerning your duties as members of the grand jury. It is mandatory that you follow these instructions and should you deem, during your service, need of additional instructions, you should present this request to the court. The law of this state specifies the express powers of grand juries. The grand jury has the power of indictment or presentment in a crime and the additional authority to issue reports.

The Grand Jury is an ancient and honored institution. Its existence is firmly imbedded in the system of Anglo-Saxon justice which we inherited from England. It is guaranteed in the constitution, which provides that no person may be placed on trial for a felony unless he or she has been indicted by a grand jury. This provision stands as a barrier against unjust prosecution by persons in authority. The grand jury is the means, not only of bringing to trial persons accused of crime, but also to protect persons from unfounded accusations whether presented by legal officers or by others who may be motivated by public clamor or private malice. Your duty is to allow or to deny issuance of an indictment. There are from 15 to 25 members of a grand jury and 12 members must agree before you can approve an indictment. The words “true bill” are used to indicate an indictment that you have approved. Each indictment must be signed by the foreman and may be signed by one of the prosecuting attorneys.

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 an accused to stand trial. If the evidence establishes a probability that a crime was committed and that the defendant committed the crime, then you should return a “true bill.” If you do not have an indictment before the grand jury, you may return a presentment, which is an instruction for an indictment to be drawn. If the evidence fails to establish a probability that a crime was committed and that the defendant is guilty of that crime, then you must refuse to return a “true bill.” You should prepare a list of the cases upon which you have refused to return a “true bill” and return that list to the court.

No public purpose would be served by indicting a person when it appears to you that the evidence is not sufficient to sustain a conviction. Unjust or unfounded indictments

should not be returned against anyone. On the other hand, it is equally important that indictments be returned against those who, upon the evidence, appear to be probably guilty of the commission of a crime. Anyone you indict shall receive a speedy public trial to determine their guilt or innocence.

You must be fair and just in your deliberations to the best of your ability and understanding. Your oath requires that you do not indict any person through malice, hatred or ill will; nor will you fail to indict any person through fear, favor, regard, reward, or hope of reward. You must be guided by an impartial spirit free from personal, social, racial, religious or political bias or feeling.

You are cautioned that rumor and hearsay testimony are unreliable. Also, that no person may be compelled to be a witness against himself/herself. A witness who testifies about his/her own participation in a crime must first be advised in your presence of his/her constitutional rights by the prosecuting attorney(s) before you may accept such evidence. You determine what witnesses you will permit to appear and testify before you.

The district attorney, county attorney and attorney general are by law the representatives of the State of Mississippi in all criminal prosecutions. It is the duty of the district attorney and county attorney to be present with the grand jury in the room to present the evidence, to examine the witnesses and to give advice on any matter of law which may be raised. You are entitled to the legal advice of the prosecuting attorney(s) on matters of law unless you are instructed to the contrary by the court. You are, however, the sole judges of the facts and the prosecuting attorney(s) may not influence you as to whether an indictment will be approved. After the testimony is taken and you are discussing what action you will take, the prosecuting attorney(s) will withdraw from your jury room. They are not permitted to be present during your deliberations nor when a ballot is taken and they may not influence your decision on any question of fact. You may request the advice and assistance of the attorney general of the state. You are also at liberty at any time to call for further instructions from the court, although the instruction which the prosecuting attorney(s) give you will usually be sufficient.

You are an independent body. You, as well as the prosecuting attorney(s), have the right to require the clerk of this court to issue subpoenas for witnesses to be brought before you to testify. Your foreman shall keep a record of the names of all witnesses sworn before the grand jury. This list of witnesses, certified and signed by the foreman, shall be returned to the court.

The grand jury has the important duty of making certain mandatory investigations and inspections. The grand jury must:

1. You must make a personal inspection of the county jail, its condition, sufficiency for the safekeeping of prisoners, and their accommodation and health, and make a report on the same to the court.

2. You must examine the tax collector’s books and his/her reports and settlements, and make a report on the same to the court.

3. You must examine the status of forest protection in the county, and in doing so, you are charged in particular of the crimes of setting fires as set forth in § 95-5-25 and § 97-17-13 of the Mississippi Code of 1972.

In addition, you, the grand jury, may make additional investigations and make reports on the same on your own initiative. Thus, you may investigate how officials are conducting their public trust, and make investigations as to the proper conduct of public institutions. This gives you the power to inspect such institutions, and if you decide, to call before you those in charge of their operations, and such other persons who can testify in that regard. If, as a result of such an investigation, it is determined that an improper condition exists, you may recommend a remedy. You shall have free access at all proper hours to papers, records, accounts and books of all county officers, including written reports of prior grand juries, for all examinations which in your discretion you may see fit to make, and may report to the court in relation thereto. While you may indict any person, you should not accuse any person by name of an offense, malfeasance, or misfeasance unless an indictment is returned. It is not your duty or responsibility to make reports praising performance of public duty by certain or all public officials. This is their duty under the law and their oath of office requires their diligent performance of lawful duties, and any such report by you could serve no purpose other than that of partisan politics.

The law requires that the circuit court shall charge you particularly concerning enforcement of the following laws:

1. Those against unlawful gambling and handling of intoxicating liquors;

2. Those relating to gambling with minors and the giving or selling to them tobacco, narcotics, or liquors;

3. Those providing for the assessment, collection and disbursement of the public revenues, state and county;

4. Those defining the duties of public officers;

5. Those relating to the collection and paying over of fines and forfeitures;

6. Those relating to providing fire escapes in hotels, theaters and other buildings;

7. Those relating to the management of 16th section school trust lands;

8. The law in relation to the illegal possession and sale of barbiturate acid and narcotics, and all other substances under the Controlled Substances Act, § 49-29-101 and following sections;

9. Section 47-1-31, prisoners, records, treatment and condition;

10. Section 47-1-27, responsibility of custodian of county prisoners;

11. Section 45-11-1, fire protection and safety;

12. Schools;

13. Motels, hotels, lodging houses, public buildings;

14. Handling of juveniles (In Harrison County only - The purposes and provisions of Chapter 23 of Title 43, “Family Court.”);

15. Ambulance service;

16. Pollution of streams;

17. Hospitals;

18. Nursing homes;

19. Elections, corrupt practices, Section 23-3-27, et seq.;

20. The condition of the county roads and the performance of the duties of contractors, overseers and supervisors under § 65-7-119; and

21. Such other statutes as the circuit judge deems proper.

The oath which you have taken contains essential principles which govern you in your deliberations. The oath is your promise that you will keep secret what takes place in the grand jury room. A grand juror, except when called as a witness in court, shall not disclose any proceedings or action in relation to offenses brought before it for six months after the adjournment of the grand jury upon which the juror served. A grand juror shall not disclose the name or testimony of any witness who has been before the grand jury. Any disclosure of secrets within the six month period is punishable by fine or imprisonment for contempt of court.

The purpose of the secrecy requirement is two-fold:

1. Accusations may be brought before you which you find unfounded. If publicity were given to the fact that the grand jury investigated a person, that person’s reputation might be ruined even though the person is entirely innocent; and

2. If anyone charged with a crime learns of your investigation, that person would be given an opportunity to escape and defeat the process of criminal justice.

This requirement of secrecy demands that you do not communicate to anyone what has been said or done in the grand jury room unless you are ordered by a judge in open court to reveal it. You should report any person asking you, or attempting to ask you, what has occurred in the grand jury room. It does not matter if the attempt was in person, by phone, letter or otherwise; you should report such a question or attempt to the court and to the prosecuting attorney(s).

I want to thank each one of you for taking time out of your busy lives to perform this important civic duty. You are making a personal sacrifice, but I believe you will find this experience one of the most interesting in your lives. Furthermore, at the end of your service, you will have the satisfaction of having helped render justice among your neighbors.