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PRESENCE OF UNAUTHORIZED PERSONS

FED. R. CRIM. PRO. Rule 6 sets out who may be present while the grand jury is in session and provides that

“[N]o person other than the jurors may be present while the grand jury is deliberating or voting.”

The Supreme Court has held that a violation of Rule 6(d) prohibition against an unauthorized person’s presence in the grand jury room may result in harmless error. U.S.

  1. Mechanik, 475 U.S. 66 (1986) (determining that issue of such Rule 6(d) “irregularities” are cured by a guilty verdict from a fair trial before a petit jury); U.S. v. Kilpatrick, 821 F.2d 1456, 1468 (10th Cir. 1987) (holding violations of rule 6(d) do not mandate dismissal of the indictment unless the violation resulted in prejudice or infringed on the independent functioning of the grand jury).

See also  U.S. v. Fulmer, 722 F.2d 1192 (5th Cir. 1983) (holding a dismissal “with prejudice” only warranted where government misconduct or negligence in prosecuting case has actually prejudiced defendant);

General Motors Corp. v. U.S., 473 F.2d 436 (6th Cir. 1978);

U.S. v. Braniff, 428 F. Supp. 579 (W.D. Tex. 1977);

Ray v. State, 561 S.W.2d 480, 481 (Tex.Cr.App. 1977);

Milton v. State, 468 S.W.2d 426, 432 (Tex.Cr.App. 1976);

U.S. v. Echols, 542 F.2d 948 (5th Cir.), cert. denied, 431 U.S. 904 (1976) (holding that a qualified projectionist who was sworn as a witness available for grand jury questions who showed films as instructed, and who was not present during presentation of other evidence or during deliberations, was a proper “witness under examination” by grand jury and thus could remain in room).

But see  Rudd v. State ex rel. Christian, 310 So.2d 295 (Fla. 1975) (holding that the presence of unauthorized person in grand jury room does not render indictment ipso facto void).

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