2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 4 - Grand Juries
Part 1 - General Provisions
§ 15-12-60. Qualifications of Grand Jurors; Impact of Ineligibility

1. Any citizen of this state 18 years of age or older who has resided in the county for at least six months preceding the time of service shall be eligible and liable to serve as a grand juror.
2. Any person who holds any elective office in state or local government or who has held any such office within a period of two years preceding the time of service as a grand juror shall not be eligible to serve as a grand juror.
3. The following individuals shall not be eligible to serve as a grand juror:
   1. Any individual who has been convicted of a felony in a state or federal court who has not had his or her civil rights restored;
   2. Any individual who has been judicially determined to be mentally incompetent;
   3. Any individual charged with a felony offense and who is in a pretrial release program, a pretrial release and diversion program, or a pretrial intervention and diversion program, as provided for in Article 4 of Chapter 18 of Title 15 or Article 4 of Chapter 3 of Title 42 or pursuant to Uniform Superior Court Rule 27, a similar diversion program from another state, or a similar federal court diversion program for a felony offense;
   4. Any individual sentenced for a felony offense pursuant to Code Section 16-13-2 who has not completed the terms of his or her sentence;
   5. Any individual serving a sentence for a felony offense pursuant to Article 3 of Chapter 8 of Title 42 or serving a first offender sentence for a felony offense pursuant to another state's law; and
   6. Any individual who is participating in a drug court division, mental health court division, veterans court division, a similar court program from another state, or a similar federal court program for a felony offense.
4. If an indictment is returned, and a grand juror was ineligible to serve as a grand juror pursuant to subsection (c) of this Code section, such indictment shall not be quashed solely as a result of such ineligibility.

(Orig. Code 1863, § 3821; Code 1868, § 3841; Code 1873, § 3906; Code 1882, § 3906; Ga. L. 1887, p. 53, § 1; Penal Code 1895, § 811; Penal Code 1910, § 811; Code 1933, § 59-201; Ga. L. 1953, Nov.-Dec. Sess., p. 284, § 3; Ga. L. 1973, p. 726, § 1; Ga. L. 1976, p. 438, § 6; Ga. L. 1977, p. 341, § 1; Ga. L. 1982, p. 779, §§ 1, 2; Ga. L. 1983, p. 3, § 12; Ga. L. 2011, p. 59, § 1-26/HB 415; Ga. L. 2012, p. 173, § 3-3/HB 665; Ga. L. 2015, p. 693, § 1A-1/HB 233; Ga. L. 2018, p. 1112, § 15/SB 365.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of subsection (c) for the former provisions, which read: "Any person who has been convicted of a felony in a state or federal court who has not had his or her civil rights restored and any person who has been judicially determined to be mentally incompetent shall not be eligible to serve as a grand juror."; and added subsection (d). See editor's note for applicability.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "Article 4 of Chapter 3 of Title 42" for "Article 5 of Chapter 8 of Title 42" in the middle of paragraph (c)(3).

- Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the effect on jury service of a conviction based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).

ANALYSIS

• General Consideration
• Constitutionality
• Incompetency
• Practice and Procedure

General Consideration

Grand jury without power to perform civil duties.

- Grand jury is an informing or accusing body rather than a judicial tribunal and, in the absence of special authorization, the grand jury has no power or jurisdiction to perform duties of a civil nature. Hobbs v. Peavy, 210 Ga. 671, 82 S.E.2d 224 (1954).

- Because O.C.G.A. § 15-12-60(d) took effect before the defendant's first indictment was issued on September 29, 2015, applying the statute to defendant's case would not be retroactive. Batten v. State, 352 Ga. App. 629, 835 S.E.2d 686 (2019).

- Trial court did not err by denying the defendant's special demurrer and motion to quash the second indictment on the same charges asserted in an earlier indictment, even though the second indictment was filed outside the statute of limitations period, because the first indictment was not void as a matter of law and, therefore, O.C.G.A. § 17-3-3 applied. Pursuant to O.C.G.A. § 15-12-60(d), even though the state nolle prossed the first indictment due to the incompetency of one grand juror and the trial court granted it, the first indictment itself was not rendered void. Batten v. State, 352 Ga. App. 629, 835 S.E.2d 686 (2019).

Cited in Gould v. State, 131 Ga. App. 811, 207 S.E.2d 519 (1974); Hall v. State, 139 Ga. App. 142, 227 S.E.2d 917 (1976); Hudson v. State, 240 Ga. 70, 239 S.E.2d 330 (1977); Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978); Sullivan v. State, 246 Ga. 426, 271 S.E.2d 823 (1980); Cochran v. State, 256 Ga. 113, 344 S.E.2d 402 (1986); Narramore v. State, 181 Ga. App. 254, 351 S.E.2d 643 (1986); Cochran v. State, 256 Ga. 113, 344 S.E.2d 402 (1986); Hamilton v. State, 185 Ga. App. 536, 365 S.E.2d 120 (1987); Bryant v. Vowell, 282 Ga. 437, 651 S.E.2d 77 (2007); Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008); Keever v. Dellinger, 291 Ga. 860, 734 S.E.2d 874 (2012).

Scheme for selecting grand juries is not inherently unfair, or necessarily incapable of administration without regard to race, and federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970).

Test as to whether particular qualification is constitutional in selection of jury members is whether conditions imposed are rationally related to valid state purpose. Gibson v. State, 236 Ga. 874, 226 S.E.2d 63, cert. denied, 429 U.S. 986, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976).

- Requirement that grand jurors shall be 21 years of age is not an invalid qualification in light of the requirement that grand jurors be experienced. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).

Six-month residency requirement is constitutional because the requirement provides a minimum period of time in which to evaluate potential candidates for the jury, and is thus related to the state's interest in determining who are upright and intelligent citizens. Gibson v. State, 236 Ga. 874, 226 S.E.2d 63, cert. denied, 429 U.S. 986, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976).

- Standards of intelligence, uprightness, and experience established for jurors do not violate either the U.S. or Georgia Constitution. White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973).

Members of grand jury may not be selected in manner that discriminates against persons of particular race or religion. However, the basic theory of the functions of a grand jury does not require that grand jurors should be impartial and unbiased. Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979).

It is an illegal exercise of the commissioners' power and discretion to exclude Jews when revising jury lists. Bashlor v. Bacon, 168 Ga. 370, 147 S.E. 762 (1929).

- Burden is upon the defendant challenging the array of a jury to establish a prima facie case that there has been systematic exclusion of a distinct class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).

To challenge array of grand jury successfully, appellants must prove prima facie case of unconstitutional discrimination. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976).

- In order to show systematic exclusion of a distinct class of citizens, the defendant must demonstrate sufficiently to establish a prima facie case that: (1) the sources from which the jury list was drawn are tainted in that the sources provide the opportunity for discrimination; and (2) use of these sources resulted in a substantial disparity between the percentages of the separate class on the jury list and in the population as a whole. Implicit in these requirements is that the defendant has the burden of showing that the group the defendant seeks to prove has been systematically excluded constitutes a distinct and separate class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).

Incompetency

1. In General

Depositors of bank serving to indict director are disqualified. Stapleton v. State, 19 Ga. App. 36, 90 S.E. 1029 (1916).

- Trial court did not err in denying the defendant's supplement to the defendant's plea in abatement because the defendant did not show that the jury commissioner was incapable of selecting qualified jurors who met the requirements of O.C.G.A. § 15-12-60; although a grand juror was reprimanded by the State Election Board and assessed a fine for assisting voters with absentee ballots and failing to sign the ballot envelopes as required by law, the grand juror was never convicted or charged with a crime. Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010).

2. Elected Office

Appointment versus election to office.

- Persons who hold or have recently held elective office are prohibited from serving on grand juries, but a grand juror appointed to the jury commission is not elected. Spears v. State, 296 Ga. 598, 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

- Director of a town's downtown development authority who is elected by a caucus of property owners is not incompetent to serve as a grand juror; such a selection is not an election by citizens registered to vote and voting at an election. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985).

- Trial court erred in denying the defendant's motion to quash an indictment because a city council member, who was an elected local government officeholder, was ineligible to serve on a grand jury under O.C.G.A. § 15-12-60(b)(1); nonetheless, the city council member served on the grand jury that issued the indictment against the defendant. State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (2012).

Grand juror was ineligible to serve because juror was an elected city councilman at the time of grand jury service. Garza v. State, 325 Ga. App. 505, 753 S.E.2d 651 (2014).

3. Convicted Felons

Pre-1976 convictions.

- This section shows no legislative intent that the statute be applied retroactively to a conviction rendered prior to 1976. Gunn v. State, 245 Ga. 359, 264 S.E.2d 862 (1980).

- Person who has been convicted of felonious assault in Tennessee in 1954 was not excluded from grand jury service because paragraph (b)(2) of O.C.G.A. § 15-12-60 either: (1) does not apply to convictions rendered prior to 1976; or (2) does not disqualify a juror convicted of a criminal offense in another state, or in the federal system. Clark v. State, 255 Ga. 370, 338 S.E.2d 269 (1986).

- Member of the grand jury who is convicted of a felony after an indictment is returned is not incompetent to serve if, although the offense was committed prior to the indictments, the juror was not charged with a crime or arrested at the time of the juror's service as a grand juror. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).

Practice and Procedure

When challenge must be made.

- Challenge, based on grounds of disqualification, must be made before finding of indictment. Folds v. State, 123 Ga. 167, 51 S.E. 305 (1905); Stapleton v. State, 19 Ga. App. 36, 90 S.E. 1029 (1916); Kato v. State, 33 Ga. App. 342, 126 S.E. 266 (1925).

Points relating to the number of grand jurors drawn and their competency should be made before the true bill is found, and not on the trial before the traverse jury, especially if the defendant is under a charge that apprises defendant that the case will go before the grand jury, by being under bond to appear, or confined in jail to answer the offense at court. Hayes v. State, 138 Ga. App. 666, 226 S.E.2d 819 (1976).

- If a defendant is represented by counsel at a commitment hearing and if no challenge to the array of grand jurors is made on the basis of incompetence until after the indictment, any contention that the grand jury is not properly constituted will be treated as having been waived. Scott v. State, 121 Ga. App. 458, 174 S.E.2d 243 (1970).

As a general rule, a grand jury challenge must be made prior to the return of the indictment or the challenge is deemed waived. Dawson v. State, 166 Ga. App. 515, 304 S.E.2d 570 (1983).

Appellants waived the appellants' challenge to the indictment based on the composition of the grand jury because an elected official served on the grand jury that returned the indictment since the appellants failed to challenge the indictment on the ground that the grand jury was illegally constituted until the appellants filed amended motions for new trial more than seven years after the statutory deadline for such a claim. Bighams v. State, 296 Ga. 267, 765 S.E.2d 917 (2014).

- Accused may challenge later if the accused did not have full notice or opportunity to challenge before the finding of the indictment. Edwards v. State, 121 Ga. 590, 49 S.E. 674 (1905); Parris v. State, 125 Ga. 777, 54 S.E. 751 (1906).

- If the omission of the challenged grand juror's name from the grand juror list for the term prevented the defendant from challenging the grand juror prior to the return of the indictment, it was permissible for defendant to challenge the juror afterward. Dawson v. State, 166 Ga. App. 515, 304 S.E.2d 570 (1983).

- It will be presumed that the grand jury has been properly chosen and that the names have been available to the defendant in advance. Accordingly, failure to make a timely challenge to the competency of certain grand jurors must be considered as a waiver of any right of challenge. Simpson v. State, 100 Ga. App. 726, 112 S.E.2d 314 (1959).

- If, apparently believing that the absence of the grand juror's name on the grand juror list itself constituted sufficient ground to quash the indictment, the defendant did not attempt to show that the grand juror was not qualified to serve, but the state showed that the grand juror was registered to vote in the county, without any showing to the contrary, the Court of Appeals presumed that the other qualifications of O.C.G.A. § 15-12-60 were met. Dawson v. State, 166 Ga. App. 515, 304 S.E.2d 570 (1983).

- With regard to a criminal case wherein the defendant was indicted for murder, the trial court erred by denying the defendant's challenge to the grand jury on the ground that someone other than the person intended to be summoned served on the grand jury, because the trial court never made a factual finding that the wrong person served on the grand jury. Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008).

- Defense counsel did not provide ineffective assistance in failing to conduct a proper pretrial investigation as defendant failed to show that a grand juror was not qualified because the grand juror was a convicted felon; further, even if a grand juror was the father of a prosecution witness, defendant failed to show prejudice as the disqualification of a grand juror under O.C.G.A. § 15-12-70 was not a viable ground for quashing an indictment. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005).

Trial counsel was not ineffective for failing to move to quash the indictment or to arrest judgment because even if a timely motion had been filed, the indictment likely would have been dismissed because a convicted felon served on the grand jury in violation of O.C.G.A. § 15-12-60; however, the state would have been free to obtain the identical indictment from a properly constituted grand jury. Brooks v. State, 332 Ga. App. 396, 772 S.E.2d 838 (2015), cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).

Justice of peace (now magistrate) is eligible to serve on county grand jury. 1954-56 Op. Att'y Gen. p. 92.

Conviction resulting from nolo contendere plea cannot be used to impose any disability including disqualification from voting, holding public office, and jury service. 1983 Op. Att'y Gen. No. 83-33.

Conviction for misdemeanor does not affect one's eligibility to serve on either a grand or trial jury. 1983 Op. Att'y Gen. No. 83-33.

Pardon or restoration of civil rights is necessary to serve on grand jury, even if the sentence has been completed, if the conviction was for any felony. 1983 Op. Att'y Gen. No. 83-33.

Person who has been placed on probation pursuant to the First Offender Act, O.C.G.A. § 42-8-60 et seq., does not become incompetent to serve on a grand or petit jury under paragraph (b)(2) of O.C.G.A. § 15-12-60 either before or after being discharged without court adjudication of guilt. 1990 Op. Att'y Gen. No. U90-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Grand Jury, § 9. 47 Am. Jur. 2d, Jury, § 142 et seq.

- 38A C.J.S., Grand Juries, § 13 et seq.

- Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case, 52 A.L.R. 919.

Eligibility of women as jurors, 157 A.L.R. 461.

Membership in secret order or organization for the suppression of crime as proper subject of examination, or ground of challenge, of juror, 158 A.L.R. 1361.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661, 70 A.L.R.5th 587.

Validity of indictment where grand jury heard incompetent witness, 39 A.L.R.3d 1064.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense, 75 A.L.R.5th 295.