Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels.

Rule 12.1. Drawing, summoning, and qualifying the venire.

(a) DRAWING THE VENIRE. Jurors shall be drawn and selected as provided in Title 12, Chapter 16, Ala.Code 1975. (b) SUMMONING THE VENIRE. The clerk shall compile Or have compiled under the clerk's direction a list of the jurors so selected, including their names and addresses, and may include such other information as the clerk may have obtained. If the jurors are drawn as provided for by 12-16-70, the clerk shall prepare or cause to be prepared a summons for each juror, and shall mail or deliver the summonses and the list of jurors to the sheriff, who shall thereupon serve each juror in the manner prescribed by law. If the jurors are drawn as authorized by 12-16-145 and 12-16-146, the list shall be prepared and the summonses mailed as authorized by 12-16-145. In addition to other necessary information, the summons in either case may contain an admonition to the juror that it is improper for the juror to discuss with anyone any matter which is or might be pending before the court, and that the juror is to report immediately to the circuit judge any attempt, direct or indirect, whether intentional or otherwise, by any person to communicate with the juror concerning any matter which is or might be pending before the court or to solicit from the juror any information concerning the juror, his or her background, or his or her opinions or attitudes; provided, however, that the court may include, or cause to be included for completion and return to the court, a juror questionnaire, which would furnish the court with information about the individual juror. On the opening day of the term, or on such other day as the venire shall have been summoned to appear, the judge presiding shall proceed to organize the court, by:
(c) QUALIFYING THE VENIRE.

(1) Determining which jurors are present; (2) Administering or causing to be administered to the jurors the following oath as required by law; "Do you and each of you solemnly swear or affirm that you will well and truly answer all questions propounded to you touching your general qualifications as a juror, or qualifications as a grand juror or petit juror, and that you will well and truly try all issues and execute all writs of inquiry submitted to you and true verdicts render according to the law and evidence, so help you God?" and,

(3) Inquiring of the jurors as to their qualifications in general, considering any excuse or postponement from service for the term, and excusing from service those jurors who are disqualified or who are entitled to be excused. (d) DEFERMENT OF SERVICE. The court may, in its discretion, defer the service of any juror to a later date if the juror is unable to serve at the session for which the juror was summoned. (e) THE VENIRE. Those persons qualified, and whose service is not excused or postponed shall become the venire from which grand or petit juries are chosen.
Committee Comments

Rule 12.1 follows current Alabama procedure. The rule provides for drawing, summoning, and qualifying the entire jury venire at one time, rather than potential grand jurors only. Rule 12.1 reads substantially like its civil counterpart, Rule 47, A.R.Civ.P. Act No. 594, Acts of Alabama, 1978, and Act No. 81-788, Acts of Alabama, 1981, codified as Ala.Code 1975, 12-16-2, 12-16-58, and 12-16-70, substantially modified prior law regarding the drawing, selecting summoning and qualifying of jurors. The list of jurors shall contain their names and addresses, and may contain other information available to the clerk. See Rule 18.2. See Ala.Code 1975, 12-16-55 through -64, relating to qualifications and selection of jurors. See also Ala.Code 1975, 12-16-70 through -127, and 12-16-145 and 12-16-146. The term "prescribed by law" in Rule 12.1(b) has reference to Ala.Code 1975, 12-16-73. Ala.Code 1975, 12-16-74, directs the judge to hear all excuses not previously heard before drawing the names for the grand jury. In Crowder v. State, 27 AIa.App. 522, 524, 175 So. 330, 332 (1937), the Alabama Court of Appeals stated that, "It is the duty of the court, before administering the oath prescribed by law to any grand [or] petit ... juror, to ascertain that such juror possesses the qualifications required by law; and the duty required of the court by this section shall be considered imperative." The Alabama Supreme Court has observed that it is the duty of the court to hear all excuses and pass upon them. Taylor v. State, 249 Ala. 130, 30 So.2d 256 (1947). If for some reason a juror cannot presently serve, the court may defer service by that juror. If a juror is selected for service on the grand jury, he or she shall serve until the grand jury has been discharged or for the time prescribed by law. The court may supplement its instructions to the jurors by providing them

with a juror handbook in a form approved by the director of the Administrative Office of Courts. Rule 12.1(b) provides that the summons may contain an admonition concerning the role of a juror. The rule also provides that the list compiled shall include the names and addresses of the jurors and may include any other information about jurors which the clerk has available. This additional information can include such things as occupation, etc.

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels.

Rule 12.2. Empaneling the grand jury and petit juries.

(a) EMPANELING THE GRAND JURY. After qualifying the venire, if a grand jury is to be empaneled at the term or session of court, the court shall randomly draw from the venire list the names of eighteen (18) qualified jurors who shall be sworn and empaneled and shall constitute the grand jury. (b) SPECIAL AND ADDITIONAL GRAND JURIES. The judge presiding at any special term of the court may, in the same manner, empanel a grand jury having like powers as the grand jury empaneled at a regular term. If the expeditious administration of justice so requires, whether at a regular or special term, the court may likewise empanel additional grand juries to operate concurrently with the first. (C) SUPPLEMENTAL GRAND JURORS. If the number of grand jurors is reduced below thirteen (13) in the investigation of any matter or matters, the court shall supply the deficiency from the qualified jurors of that county in the manner described in Rule 12.2(a) for empaneling a grand jury, and the persons so placed on the grand jury shall serve only during such investigation. (d) EMPANELING THE PETIT JURIES. If the venire has been summoned for the trial of criminal or civil cases, or both, for the session, the judge shall cause to be randomly compiled a master strike list containing the names of all petit jurors, and they shall thereafter be available for the trial of civil and/or criminal cases without further oath or qualification except with respect to each particular case to be tried.

Committee Comments

Rule 12.2(a) reflects the requirements of Ala.Code 1975, 12-16-74, which provides for empaneling and organizing the grand jury. The Alabama Supreme Court held in Petty v. State, 224 Ala. 451, 140 So. 585 (1932), that when a grand jury is organized, it is presumed to continue until the half-yearly endings of the term, unless discharge by an order of the court. See also Oliver v. State, 232 Ala. 5, 166 So. 615 (1936); Riley v. State, 209 Ala. 505, 96 So. 599 (1923). When the judge orders a special session of the court and a corresponding special grand jury, such order operates to dissolve or discharge the first grand jury. Petty v. State, supra. Ala.Code 1975, 12-16-190, provides that if the grand jury completes its business, it may, at the discretion of

the court, recess, subject to recall by the judge of the circuit court or the Chief Justice of the Supreme Court. Section (b) allows empaneling of the grand jury for a special term of court and provides for the empaneling of additional grand juries if such is required. Ala.Code 1975, 12-16-190, provides that each county must have at least two grand juries annually. Counties of over 50,000 population must have a minimum of four grand juries per year. Section (c) is taken directly from Ala.Code 1975, 12-16-207(b). Section (d) provides that after selection of grand jurors, the rest of the venire shall be randomly compiled on a master strike list for service as petit jurors in both civil and criminal cases. This combining of jurors for civil and criminal trials comports with present practice and is consistent with Rule 47(b), Ala.R.Civ.P. It is discretionary and permits flexibility from one circuit to the other.

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels. Rule 12.3. Oath, instructions, duties, and powers of the grand jury.

(a) OATH. The foreman of the grand jury shall take the following oath: "You, as foreman of the grand jury of County, do solemnly swear (or affirm) that you will diligently inquire, and true presentment make, of all indictable offenses given you in charge, as well as those brought to your knowledge, committed or triable within the county; the state's counsel, your fellows' and your own you shall keep secret; you shall present no person from envy, hatred, or malice, not leave any one unpresented from fear, affection, reward, or the hope thereof; but you shall present all things truly as they come to your knowledge, to the best of your understanding, so help you God?" After the above oath (or affirmation) has been administered to the foreman, the following oath (or affirmation) shall be administered to the other grand jurors: "The same oath (or affirmation) which your foreman has taken, on his part, you and each of you, on your respective parts, shall well and truly observe and keep, so help you God." (b) INSTRUCTIONS. The judge shall instruct the grand jury concerning its powers and duties and the grounds for disqualification of a grand juror as set out in Rule 12.4, and shall otherwise instruct the grand jury as the judge shall deem proper. (C) DUTIES OF THE GRAND JURY. It shall be the duty of the grand jury to: (1) Inquire into all indictable offenses committed or triable within the county. If any grand juror knows, or has reason to believe, that a public offense has been committed for which a defendant may be indicted and tried within that county, it shall be the duty of that grand juror to disclose the same to the other grand jurors, who may thereupon investigate it; (2) Inquire into any alleged misconduct or incompetency of any public officer in the county. If upon such investigation and diligent inquiry, the grand jury finds that the officer investigated should be removed from office, it shall return a Bill of Impeachment as provided by law; provided, however, if the officer who the grand jury finds should be removed from office is a judge, the grand jury shall forward a confidential report, signed by the foreman, concerning the matter to the Alabama Judicial Inquiry Commission.

(3) Inquire into the condition of the county jail and juvenile detention facilities, if any, in regard to their sufficiency for the safekeeping of prisoners or juveniles, respectively, and their sufficiency for the accommodations and health of prisoners or juveniles, respectively; and (4) Perform such other duties as may be required of it, which include the duties of each member of the grand jury to: (i) Disqualify himself or herself in a particular matter for any of the reasons enumerated in Rule 12.4; (ii) Attend each session of the grand jury unless excused by the foreman or the court; and (iii) Keep confidential those matters revealed to the grand jury in secret, as required by law. (d) POWERS OF THE GRAND JURY. (1) The grand jury shall have inquisitorial powers over all indictable offenses found to have been committed or to be triable within the county, and shall have authority to return indictments for all such offenses. (2) The grand jury shall be entitled to free access, at all proper hours, to all state, county, and municipal offices and buildings located within the county and shall be entitled to examine, without charge, all records and other papers of any state, county, or municipal offices within the county in any way connected with the grand jury's duties, unless those records and papers are otherwise privileged from disclosure by law.

Committee Comments Rule 12.3(a) states the oaths presently required in Alabama. Ala.Code 1975, 12-16-171, -172. Rule 12.3(b) substantially changes past practice. Ala.Code 1975, 12-16202, requires the court specifically to charge such things as the laws regulating the operation of automobiles, carrying concealed weapons, dealing in county claims by county officers, failure of tax assessor to administer oath to taxpayer, forming pools to regulate quantity or price of products, combination to control corporation with such intent, violation of election laws, laws relating to convicts and prisoners, adulterating and selling candies, gaming, selling liquors in violation of law, betting on any election, violating the game and fish law, and violating the law prohibiting corporations from contributing to campaign funds.

The rule merely directs the judges of the courts in which grand juries relative to the criminal laws against certain offenses; to charge the grand jury as to all other matters which may be required by law; and to instruct the grand jury that it is their duty to indict for offenses if, in their opinion, the evidence justifies the indictment. Rule 12.3(c) is intended to limit some of the duties of the grand jury imposed by statute unless for some good reason those duties are required of them. See generally Ala.Code 1975, 12-16-191, on the duty of grand juries to examine county jails; 12-16-195 on grand juries' examining books of county superintendents of education; 36-11-3 on duty of grand juries to investigate public officers; Hess & Kulakowski, Preliminary Proceedings and Trial Preparations, 35 Alabama Lawyer 497, 506 (1974). See Ala.Code 1975, 12-16-192. Rule 12.3(c)(2) is not an exclusive remedy and the grand jury can still indict. Rule 12.3(d) restates in part present Alabama law and is not exclusive. The function of the grand jury is to make investigations into possible crimes committed within the grand jury's jurisdiction. "The grand jury is an integral part of our legal system, whose function it is to make investigations of all crimes committed within its jurisdiction." King v. Second National Bank & Trust Co., 234 Ala. 106, 108, 173 So. 498, 499 (1937). As the Alabama Supreme Court said in Fields, Alias v. State, 121 Ala. 16, 17, 25 So. 726, 727 (1899): "[The grand jury] is that branch of the court, when organized under the statute, in which all criminal prosecutions by indictment must originate. It puts in motion the organized machinery for the trial of persons charged with crime by presenting in open court in the name of the State a complaint, which must be endorsed a true bill. By this means the court acquires jurisdiction of the particular case. The functions and powers of the grand jury as to the indictment so returned are ended when the presentment is made and the indictment or true bill is received by the court." Once the grand jury is empaneled and sworn as provided by statute, "it becomes the supreme inquisitorial body of the county, and no preliminary act of any court or judge can limit its powers." State v. Knighton, 21 Ala.App. 330, 331, 108 So. 85 (1926). Partial authority for subsection (2) is found in Alabama Code 1975, 1216-196, which provides: "The district attorney and the grand jury shall be entitled to free access, at all proper hours, to the county jail, to the office of the county

treasurer and to examination, without charge, of all records and other papers in any of the county offices, connected in any way with their duties."

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels. Rule 12.4. Grounds for disqualification of a grand juror.

A grand juror shall be disqualified from participating with the grand jury in any particular action where: (a) That juror is charged with the same offense; (b) That juror is a prosecutor in the same offense; (c) The offense charged was committed against the juror's person or property; (d) That juror is related by blood or marriage within the fifth degree calculated civilly to any person charged, or any complaining witness, or any victim of the offense charged; or (e) That juror has any material interest, direct or indirect, in the matter under investigation or is a witness to any material part of the matter under investigation.
Committee Comments

Rule 12.4 conforms in part to existing Alabama statutory law. Ala.Code 1975, 12-16-207. It is intended to set forth specifically those situations in which a grand juror's disqualification is mandatory. It appears from the case law that the grounds found in Ala.Code 1975, 12-16-207, were the only basis for challenging the grand jury venire or attacking the indictment on the basis of a juror's disqualification. The Alabama Supreme Court held in Sledge v. State, 208 Ala. 154, 93 So. 875 (1922), that in the absence of statutory prohibition, the relationship of a grand juror to the party injured is not a valid ground for objection to the indictment. Thus, the fact that a member of the grand jury which returned an indictment for murder was related to the deceased victim within the prohibited degree did not vitiate the indictment, since the statute does not make relationship to the injured party a cause for withdrawal of a juror, Sisk v. State, 22 Ala.App. 368, 115 So. 766 (1928). For the same result, see Morris v. State, 268 Ala. 60, 104 So.2d 810, 815 (1958). Also, bias or prejudice on the part of a grand juror furnishes no ground of attack on the indictment absent statutory provision. Sheppard v. State, 243 Ala. 498, 10 So.2d 822, 823 (1942). Cases have held that the provision in the statute requiring that a grand juror be disqualified when related by blood or marriage to the person charged is intended for the protection of the state, and that no injury is done to

the accused if his relatives sit on the grand jury that returns an indictment against the accused. Wilson v. State, 171 Ala. 25, 54 So. 572 (1911); Sheppard v. State, supra. However, allowing biased or prejudiced persons, or those related to a party or a victim, to participate with the grand jury raises serious due process questions, since the policy is to insure impartial grand juries. Thus, Rule 12.4 excludes from participation on the grand jury not only persons related by blood or marriage to the person charged, but those related to any party to the particular grand jury action or to any victim of the alleged offense as well. Section (e) further excludes anyone who has an interest, either direct or indirect, in the matter under investigation or who is a witness to any material part of the matter under investigation.

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels. Rule 12.6. Persons authorized to be present during sessions of grand jury.

No person other than the grand jurors, the witnesses under examination, the district attorneys or assistant district attorneys, or others authorized by law to present evidence to the grand jury, a grand jury reporter or stenographer, and an interpreter, if any, shall be present during sessions of the grand jury; provided, however, that this rule shall not be construed as prohibiting the use of sound recording devices by the district attorney while witnesses are giving their testimony before the grand jury. No person other than the grand jurors shall be present during their deliberation and voting.

Committee Comments

Rule 12.6 permits only the witness being examined, the district attorney, assistant district attorneys, and any other person authorized to present evidence, such as the attorney general, the official reporter and an interpreter, if any, to be present in the grand jury room with grand jurors during sessions of the grand jury. Ala.Code 1975, 12-16-209, requires that the district attorney be present during the grand jury proceedings when so requested by the grand jury, and allows the district attorney to be present whenever he deems it necessary to examine witnesses, give legal advice, or to present any other information. However, the statute specifically prohibits the presence of the district attorney when the grand jury is deliberating and/or voting. Ala.Code 1975, 36-15-13, authorizes the attorney general to appear before any grand jury in Alabama. Local acts may authorize the district attorney to employ all shorthand reporters necessary to properly report the proceedings before the grand jury and to transcribe the same. It is the duty of the court reporter to attend before the grand jury when required by the prosecutor, for the purpose of taking down and transcribing the testimony of witnesses before that body, to take an oath to faithfully discharge the duties imposed on him, and not to divulge any secrets that may come to his knowledge before the grand jury. Thayer v. State, 138 Ala. 39, 35 So. 406, 407 (1902). The presence of the court reporter in the grand jury room during the examination of witnesses is not a ground for a plea in abatement to an indictment, since the Alabama Legislature has authorized such presence. Smith v. State, 142 Ala. 14, 39 So. 329 (1904).

of immunity which removes the protection of the Fifth Amendment and then use information gained to prosecute for related offenses. On the other hand, a defendant should not be permitted to avoid prosecution by testifying beyond the scope of the immunity granted him. Thus, the scope of the immunity to be granted takes into consideration incrimination for other offenses in Alabama, the United States, other states, and United States territories and foreign jurisdictions with whom the United States has treaties providing for extradition. It should also be clear that a witness who has been called to appear before a grand jury without a grant of immunity may not waive his right to remain silent and still obtain de facto immunity by testifying voluntarily. Likewise, a witness appearing under a specific grant of immunity could not voluntarily give incriminating testimony about offenses beyond the scope of the immunity granted and thereby obtain a de facto extension of the immunity into a broader area than intended by the court. Because the grant of immunity from prosecution may, in a significant sense, affect the substantive rights of the parties, the issue arises of whether this rule is procedural or substantive in scope. This question seems to be answered in Ex parte Graddick, 501 So.2d 444 (Ala.1986), and Ex parte Gipson, 375 So.2d 514 (Ala.1979), wherein the court set forth the procedure for granting immunity. Rule 12.7 is patterned after the procedure set out in Ex parte Graddick, 501 So.2d 444 (Ala.1986). See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels. Rule 12.5. Foreman of the grand jury. (a) APPOINTMENT AND POWERS. The court shall appoint the foreman of the grand jury and an acting foreman to serve in the absence of the foreman. The foreman shall preside over the grand jury proceedings and act as the court's representative by maintaining order, administering oaths, excluding unauthorized persons and persons acting in an unauthorized manner, appointing such officers within the grand jury as are necessary for its orderly functioning, and performing such other duties as may be imposed on the foreman by law or by order of the court. (b) DUTIES OF FOREMAN. It is the duty of the foreman to: (1) Preside over the grand jury proceedings; (2) Issue or cause to be issued subpoenas and subpoenas duces tecum for any witnesses whom the grand jury may require to give evidence, and if witnesses so summoned fail to appear, to endorse the returned subpoenas as defaulted; (3) Perform the following functions with respect to witnesses appearing before the grand jury; (i) Swear witnesses before the grand jury or cause them to be sworn by the district attorney or assistant district attorney; and (ii) Maintain a list of all witnesses summoned and in attendance before the grand jury during each session; (4) Endorse any indictment returned by the grand jury "A True Bill" and sign his name thereto; and (5) Submit a written report of the proceedings of the grand jury to the court. (C) REQUEST FOR CONTEMPT PROCEEDINGS. The foreman may request the court to initiate a contempt proceeding against any person who unlawfully refuses to testify or answer questions asked of that person, or whose conduct violates these rules or disrupts the grand jury proceedings.

Committee Comments

attorney assisted the prosecutor authorized to be present before the grand jury by examining witnesses, there was no ground for quashing the indictment, since it appeared that the unauthorized attorney "gave the jury no counsel, expressed to them no opinion unfavorable to the appellant, did no act affecting their deliberations, [and] the appellant has suffered no injury from his presence in the jury room." Blevins v. State, 68 Ala. 92, 95 (1880). Nor was the indictment invalid where the bailiff was present in the grand jury room, since the bailiff was an officer appointed by the court to wait upon the grand jury and there was no evidence that the bailiff "gave the grand jury any counsel or expressed to them any opinion unfavorable to the defendant or did any act affecting their deliberations," and he was not present during their deliberations. Rush v. State, 253 Ala. 537, 542, 45 So.2d 761 (1950). In In re State ex rel. Baxley v. Strawbridge, supra, the Alabama Supreme Court cited 4 A.L.R.2d at p. 395 with approval: " The prevailing view, apart from statutes expressly affecting the question, is that the presence of an unauthorized person during grand jury proceedings, is, at most, a mere irregularity, not sufficient to constitute a ground for setting aside the indictment returned by the grand jury, unless prejudice to the accused is shown.' " 292 Ala. at 507, 296 So.2d 784. However, the rule should be strictly adhered to because of strong public policy that grand jury deliberations should be surrounded by secrecy. There are many reasons for this policy. One is to prevent an accused from being afforded an opportunity to escape before an indictment is returned. Another is to protect the grand jury in their deliberations, so that they may freely state their opinions and cast their votes. Blevins v. State, supra; Rush v. State, supra. In addition, it is desirable to protect the good name of those not indicted, and to keep prosecution witnesses from being harassed or intimidated in order to keep them away from the trial of the indictment before a petit jury. State ex rel. Baxley v. Strawbridge, 52 AIa.App. 685, 690, 296 So.2d 779 (1974). Furthermore, if the actions of the grand jury were made public, an accused would be given an opportunity to destroy, remove, or conceal evidence. A potential witness, if embarrassed, frightened or recalcitrant, could become unavailable before being subpoenaed to appear. The last sentence of Rule 12.6 prohibits any person other than the grand jurors from being present during their deliberation and voting. This is in keeping with Alabama law, Ala.Code 1975, 12-16-209, which says that even the district attorney cannot be present at the deliberations and voting; Ala.Code 1975, 1216-214; cf., Blevins v. State, supra; Rush v. State, supra. Grand jury secrecy is covered by Ala.Code 1975, 12-16-214 through -226.

Although the presence of a court reporter in the grand jury room during the examination of a witness is not authorized by statute in every circuit, there have been indications that the Alabama Court of Criminal Appeals and the Alabama Supreme Court would not disapprove of the practice in any case. State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 (1974). Noting that in Smith v. State, supra, the Alabama Supreme Court had not condemned transcribing of testimony given before the grand jury, the Court of Criminal Appeals stated, "We fail to see any valid distinction between a process whereunder a reporter takes shorthand notes and transcribes them for the District Attorney and one entailing a direct electronic recording." The Alabama Supreme Court upheld the decision of the Court of Appeals, stating, "Even had a stenographer been present, and retired from the presence of the grand jury before it began its deliberations, no error to reverse would have resulted in the absence of a showing of prejudice to the accused." In re State ex rel. Baxley v. Strawbridge, 292 Ala. 506, 507, 296 So.2d 784 (1974). Rule 12.6 allows an interpreter to be present during sessions of the grand jury when needed. There is no other authority in Alabama for such a rule. The Advisory Committee believes the situation to be sufficiently analogous to the presence of a court reporter to be permissible. Rule 12.6 does not permit a person under investigation to bring an attorney into the grand jury room. The Supreme Court of the United States said by way of dictum in In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 513, 1 L.Ed.2d 376 (1957), "A witness before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel...." The United States Court of Appeals for the Fifth Circuit recognized that "at this time there is no constitutional right to be represented by counsel while the Grand Jury is deliberating." Harry v. Beto, 438 F.2d 116, 117 (5th Cir.1971). The same rule was recognized in In re Grumbles, 453 F.2d 119, 122 (3rd Cir.1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1806, 32 L.Ed.2d 134 (1972); Gollaher v. United States, 419 F.2d 520, 524 (9th Cir.1969), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969); United States v. Levinson, 405 F.2d 971, 980 (6th Cir.1968), cert. denied, 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969). Many states do not recognize the right of a witness to be accompanied by counsel while being examined by a grand jury. See, e.g., State v. Cobbs, 164 Conn. 402, 324 A.2d 234, 241 (1973); State v. Cattaneo, 123 N.J.Super. 167, 302 A.2d 138, cert. denied, 63 N.J. 324, 307 A.2d 97 (1973); People v. Waters, 313 N.Y.S.2d 124, 27 N.Y.2d 553, 261 N.E.2d 265, 266 (1970); Chesley v. State, 3 Md.App. 588, 240 A.2d 342, 343 (1968); Maiden v. State, 84 Nev. 443, 442 P.2d 902, 903 (Nev.1968); Allred v. State, 187 So.2d 28 (Miss.1966). See Rule 6(d), Fed.R.Crim.P. Although the rule excluding unauthorized persons from grand jury sessions is intended to be strictly adhered to, there appears to be no sanction for its violation, absent a showing of prejudice to the accused. Thus, where an

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels.

Rule 12.7. Appearance of persons under investigation.

(a) APPEARANCE. A person under investigation by the grand jury may be compelled to appear before the grand jury, or, upon that person's written request, may be permitted to appear before the grand jury. Unless immunity has been granted to the witness as provided in section (b) hereof, the witness shall be advised that he or she has the right to remain silent, that anything the witness says may be recorded and used against him or her in a court of law, that the witness has the right to consult in private with an attorney outside the grand jury room at reasonable intervals while giving testimony, that, if the witness is unable to employ counsel because of indigency as defined in Rule 6.3(a), the court will appoint an attorney to represent the witness, and that the witness can at any time stop giving testimony and refuse to answer further questions. (b) IMMUNITY, PRIVILEGE, AND COMPULSION OF TESTIMONY. In any investigation before a grand jury, the court, on written motion of the district attorney may, in writing, order that any material witness be granted immunity from prosecution for the offense or offenses under investigation and any related or lesser included offense or offenses thereof, and, if the witness accepts the immunity agreement, be compelled to testify truthfully as other witnesses. If a witness refuses to accept the immunity agreement, he or she may not be compelled to testify as to matters which might tend to incriminate the witness. In considering whether to grant immunity, the court shall take into consideration the possibility that the testimony of the witness may tend to incriminate him or her for another offense or offenses against the State of Alabama, or for an offense or offenses over which the United States government, or another state or territory of the United States, or a foreign jurisdiction with which the United States has treaties of extradition has jurisdiction. In such case, the court shall grant immunity only if the district attorney has procured binding assurance from the appropriate officials that the witness shall be granted immunity from prosecution for such other offense or offenses and any related or lesser included offenses thereof. Immunity granted by court order pursuant to this rule may be pleaded in bar of any prosecution of the witness for any offense for which immunity was granted.

Committee Comments

Rule 12.7(a) applies only to persons under investigation by the grand jury and does not reach persons not under suspicion and called only as witnesses.

The first sentence provides for compulsory attendance before the grand jury of a person under investigation. Authority for this rule is found in Ala.Code 1975, 12-16-197, which directs the prosecutor, the foreman of the grand jury, or the clerk of the court to issue subpoenas for any witnesses the grand jury desires to have appear before it, and provides that a proceeding be had against any defaulting witnesses. The proceeding contemplated by the statute is one of contempt. See Newsum v. State, 78 Ala. 407 (1885). Rule 12.7(a) also permits a person under investigation by the grand jury to appear before that body upon written request. The rule is discretionary and is not intended to create an absolute right on the part of a person under investigation to appear before the grand jury. Federal courts have long held that a potential defendant has no absolute right to appear before a grand jury. See, e.g., Duke v. United States, 90 F.2d 840, 841 (4th Cir.1937), cert. denied, 302 U.S. 685, 58 S.Ct. 33, 82 L.Ed. 528 (1937); United States ex rel. McCann v. Thompson, 144 F.2d 604, 605 (2d Cir.), cert. denied, 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944). There are several states that do not recognize a right on the part of a potential defendant to appear before the grand jury. See, e.g., State v. Salazar, 81 N.M. 512, 469 P.2d 157, 158 (N.M.1970); State v. Panagoulis, 253 Md. 699, 253 A.2d 877, 883 (1969); Maiden v. State, 84 Nev. 443, 442 P.2d 902 (1968); Allred v. State, 187 So.2d 28 (Miss.1966); People v. Dupree, 156 Cal.App.2d 60, 319 P.2d 39, 42-43 (1957). However, at least one state does recognize such a right. In People v. Waters, 313 N.Y.S.2d 124, 27 N.Y.2d 553, 261 N.E.2d 265, 266 (1970), the court held that a defendant's right to appear before a grand jury, granted by the code of criminal procedure, is a personal right and does not extend to allow an appearance by counsel. Another state, while denying that a right to appear exists, recognizes that a defendant should be allowed the privilege of being present in the grand jury room during the taking of evidence. State v. Menillo,159 Conn. 264, 268 A.2d 667, 672 (1970). The Advisory Committee is of the opinion that the better practice is to allow the grand jury, in its discretion, to either permit or disallow the person under investigation to appear before the grand jury. As one court stated, "The grand jury has in all ages stood between the accused and his unjust accusers." While there is no right to cross-examine witnesses or to introduce evidence in rebuttal, "one accused of crime may often times, by himself testifying before the grand jury clear up the charges against him so that no indictment is returned." United States v. Levinson, 405 F.2d 971, 980 (6th Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1968). A person under investigation is given a right under the rule to consult with an attorney outside the grand jury room as a means of enforcing the right against

self-incrimination. This is the practice in federal courts. See, e.g., In re Grumbles, 453 F.2d 119, 120 n. 1 (3d Cir.1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1806, 32 L.Ed.2d 134 (1972); United States v. Corallo, 413 F.2d 1306, 1330 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969); United States v. Leighton, 265 F.Supp. 27, 38 (S.D.N.Y.1967), and it is anticipated that the procedure will operate in the same way under this rule. Rule 12.7(b) provides for a grant of immunity by the grand jury to persons under investigation who are called to appear before the grand jury. There are no provisions in Alabama law providing such immunity. Art. 8, 189, Alabama Constitution of 1901, provides that in investigation and criminal proceedings for violations of the election law no person other than a defendant may refuse to testify on the ground of self-incrimination, but such persons may not be prosecuted for any offense arising out of the transactions concerning which he testified. Ala.Code 1975, 12-21-223, provides that where two or more persons are jointly indicted, the court may order one party discharged from the indictment in order to testify, but such order "operates as an acquittal of such defendant provided he does testify." Ala.Code 1975, 28-4-318, provides in the context of investigation of violation of liquor laws that "[a] witness must not be prosecuted for any offense as to which he testifies before the grand jury; and the solicitor or any member of the grand jury may be a witness to prove that fact." A similar rule is in effect under the federal system. 18 U.S.C. 6002 (1970) provides: "Immunity generally. "Whenever a witness refuses, on the basis of his privilege against selfincrimination, to testify or provide other information in a proceeding before or ancillary to "(1) a court or grand jury of the United States,

"...and the person presiding over the proceeding communicates to the witness an order issued under this part ..., the witness may not refuse to comply with the order on the basis of his privilege against selfincrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal cases except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." The difficult part of a rule granting immunity is the scope of the immunity. On one hand, it is not permissible for the state to coerce testimony under a grant

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels.

Rule 12.8. Indictment.

(a) NUMBER OF GRAND JURORS NECESSARY TO INDICT. An indictment shall not be returned without the concurrence of at least twelve (12) grand jurors. (b) RETURN OF INDICTMENT. When an indictment is found, it must be endorsed "A True Bill," and the indictment must be signed by the foreman. The indictment shall be returned and filed in open court by the foreman in the presence of at least eleven (11) other members of the grand jury. (C) NOTICE OF SUPERVENING INDICTMENT. If a defendant has previously been released on a consolidated bond for the offense for which he or she is later indicted and the conditions of release have not been altered following the indictment, the circuit clerk shall notify the defendant, the attorney for the defendant, and the sureties of the date and time of arraignment by mailing a court appearance notice by first class mail. An arrest warrant need not be issued upon an indictment if the defendant, at the time of the initial arrest, was released on a consolidated bond and the amount of that bond has not been increased following the return of an indictment. (d) FAILURE TO RETURN AN INDICTMENT. If the defendant is in custody or has been conditionally released, and the charge has been presented to the grand jury and no indictment is returned, the foreman shall promptly so report to the court in writing, and, unless the court shall order otherwise, the defendant held shall be released forthwith from custody or if the defendant has previously been conditionally released, the defendant shall be relieved of any obligation made in connection with such conditional release. (e) INDICTMENT DISCRETIONARY FOR A MISDEMEANOR OFFENSE. The grand jury is not bound to find an indictment for any misdemeanor unless at least twelve (12) members of the grand jury think it necessary for the public good. (f) NATURE OF EVIDENCE PRESENTED TO GRAND JURY. (1) In its investigation of a charge of any indictable offense, the grand jury may consider only legal evidence given by witnesses before it or legal documentary evidence presented to it. For purposes of this section, legal evidence may consist of hearsay evidence in whole or in part. (2) An indictment based solely on illegal evidence is subject to dismissal; however, an indictment is not subject to being dismissed on the ground that it is

based upon insufficient evidence or is based in part upon illegal evidence. No inquiry into the sufficiency of the evidence before the grand jury will be indulged. [Amended 8-1-97.]

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).

Alabama Rules of Criminal Procedure Rule 12. Selection of venire; the grand jury and petit jury panels.

Rule 12.9. Challenge to grand jury proceedings or to an indictment.

(a) PROCEDURE. The grand jury proceedings may be challenged only by written motion to dismiss the indictment, filed in the circuit court and alleging grounds therefor. (b) TIMELINESS. A motion under section (a) of this rule may be filed after an indictment is returned and before arraignment or by such later date as may be set by the court; provided, however, that if counsel is appointed for the first time at arraignment, the court shall give counsel a reasonable time within which to file the motion.

Committee Comments

Rule 12.9(a) governs the procedure for challenges both to the grand jury panel as a whole and to individual grand jurors. It does not deal with the effect of a successful challenge of an indictment, which is dealt with in Rule 13.5. Ala.Code 1975, 15-15-40, provides that the only objection is that the jurors were not drawn by the officer designated by law to so draw the names. The cases hold that this Code section refers to the information of the grand jury panel itself under Ala.Code 1975, 12-16-74, Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Spivey v. State, 172 Ala. 391, 56 So. 232 (1911); Smith v. State, 34 Ala.App. 45, 38 So.2d 341 (1948). Ala.Code 1975, 15-15-40, provides that an objection to the formation of the grand jury can be taken on the ground that the jurors were not drawn in the presence of the officer designated by law. The case cited above holds that this Code section refers to the formation of the jury venire, from which the grand and petit jurors are drawn under Ala.Code 1975, 12-16-70. Any party may challenge an individual member of the grand jury. A member may be unqualified to serve on the panel from two perspectives: general disqualification to serve as a juror as provided in Ala.Code 1975, 12-16-60, and disqualification in a particular matter as provided in Rule 12.4. Section (a) provides the method by which a challenge to the grand jury or member of the panel shall be made. This rule does not permit the defendant to challenge the formation of the grand jury until after an indictment has been returned. In an early case, the Alabama Supreme Court stated the rule that

objections to a grand juror or a challenge for cause cannot be made until after the jury is elected and sworn. The reasoning was that each defendant might have an objection to a particular juror and it would be impossible to empanel any grand jury. The better practice is to empanel the jury first, and then allow objectionable jurors to be excluded in particular cases. State v. Hughes, 1 Ala. 655 (1840). Objection to commencement of the proceedings including a grand jury proceeding must be made before trial under Rule 15.2(a), thus the motion must be filed before a plea is entered under Rule 15.3(a), unless a later filing is permitted by the court. A motion under section (a) should be filed before arraignment, but, if the court agrees, it may be filed later. If counsel is not appointed until at arraignment, then the court must allow counsel a reasonable time within which to file the motion.

Alabama Rules of Criminal Procedure Rule 13. Charges: Indictment, Information, and Complaint.

Rule 13.1. Definitions.

(a) INDICTMENT. An indictment is a written statement charging the defendant or defendants named therein with the commission of an indictable offense, presented to the court by a grand jury, endorsed "A True Bill," and signed by the foreman. The term "indictment" includes "presentment." (b) INFORMATION. An information is a written statement charging the defendant or defendants named therein with the commission of an indictable offense, made on oath, signed, and presented to the court by the district attorney, pursuant to Rule 2.2(e), without action by the grand jury.
(c) COMPLAINT. A complaint is a written statement made upon oath before

a judge, magistrate, or official authorized by law to issue warrants of arrest, setting forth essential facts constituting an offense and alleging that the defendant committed the offense. (See Rule 2.3.)

Committee Comments

Ala.Code 1975, 15-8-1, provides in pertinent part, "An indictment is an accusation in writing presented by the grand jury of the county, charging a person with an indictable offense." Ala.Code, 12-16-204, requires that after twelve (12) grand jurors have concurred to find an indictment, the indictment must be endorsed "A True Bill" and be signed by the foreman. See Rule 12.8(a) and (b). The signature of the district attorney on an indictment is proper but not necessary. Hughes v. State, 213 Ala. 555, 105 So. 664 (1925), Mayo v. State, 36 Ala.App. 557, 60 So.2d 860 (1952). See also M. Clinton McGee, Alabama Criminal Practice at 93 (University of Alabama Press, 1969), defining an information as "an accusation on oath of an official prosecuting officer filed in court and without action by the grand jury." Under Rule 13.1(b), the signature of the district attorney on an information is assurance that the proper authorities support the charges; that the district attorney, in his professional judgment, finds the charges warranted by the evidence brought before him; and, as with every signature of an attorney, that the charges are filed in good faith.

The use of an information is severely restricted in Alabama. Art. I, 8, Alabama Constitution of 1901, provided that no person could be proceeded against criminally by information for any indictable offense, with certain exceptions. That section was later amended by Amendment No. 37, which provided: "No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or by leave of the court, for misfeasance, misdemeanor, extortion, and oppression in office, otherwise than is provided in the Constitution; provided, that in cases of misdemeanor, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established. Provided further that in all felony cases, except those punishable by capital punishment, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings in such manner as may be provided by law if the defendant, after having the advice of counsel of his choice or in the event he is unable to employ counsel, the advice of counsel which must be appointed by the court, makes known in open court to a judge of a court having jurisdiction of the offense that he desires to plead guilty, provided, however, the defendant cannot plead guilty within fifteen days after his arrest." The requirements of the amendment are codified in Ala.Code 1975, 15-15-20 through 15-15-26; those sections require that an information be made on an oath of the district attorney. The effect of Amendment 37 and 15-15-20 through -26, is to limit the use of an information in Alabama to the situation where a defendant, before indictment, pleads guilty to a noncapital felony offense. There is one other use for an informationimpeachment under Ala.Code 1975, 36-11-1 et seq. The Alabama courts have held that the defendant in a felony case cannot waive the absence of an indictment, except under the terms of Amendment 37 and 1515-20, Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913 (1958). In support of its holding, the Court said that "the constitutional requisition of indictments generally in all cases of felony is not one conferring a mere personal privilege upon an accused person, but is so imbued with the public concern for due and proper administration of the law that no individual may waive it." 39 Ala.App. 676, 690, 107 So.2d 913, 926 (1958). The use of an information in Alabama (except in impeachment proceedings) is set out in Rule 2.2(e).

Alabama Rules of Criminal Procedure Rule 13. Charges: Indictment, Information, and Complaint. Rule 13.3. Joinder and consolidation for trial. (a) OFFENSES. Two or more offenses may be joined in an indictment, information, or complaint, if they: (1) Are of the same or similar character; or (2) Are based on the same conduct or are otherwise connected in their commission; or (3) Are alleged to have been part of a common scheme or plan. Two or more offenses shall not be joined in the same count. Felonies and misdemeanors may be joined in separate counts of the same indictment or information. (b) DEFENDANTS. Two or more defendants may be charged in the same indictment, information, or complaint: (1) If they are alleged to have participated in the same act or transaction; or (2) When the several offenses are part of a common conspiracy, scheme, or plan; or (3) When the several offenses are otherwise so closely connected that it would be difficult to separate proof of one from proof of the other. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. (C) CONSOLIDATION. If offenses or defendants are charged in separate indictments, informations, or complaints, the court on its own initiative or on motion of either party may order that the charges be tried together or that the defendants be joined for the purposes of trial if the offenses or the defendants, as the case may be, could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially were under a single indictment, information, or complaint. However, the court shall not order that the offenses or the defendants, as the case may be, be tried together without first providing the defendant or defendants and the prosecutor an opportunity to be heard.

(d) TRIAL. Offenses and defendants joined in the same indictment, information, or complaint shall be jointly tried unless severed as provided in Rule 13.4. The fact that offenses are jointly tried shall not affect the court's power to sentence the defendant separately for each offense of which the defendant is convicted; nor shall it affect the court's power to provide that sentences shall run concurrently or consecutively, just as if the defendant had been tried separately for each offense. Committee Comments Rule 13.3(a) is based on Rule 8(a), Fed.R.Crim.P., and ABA, Standards for Criminal Justice, Joinder and Severance 13-2.1 (2d ed. 1986). The first sentence allows for joinder of offenses in separate counts of the same indictment. Because Rule 13.3(a) states the three (3) bases for joinder of offenses in the alternative, it makes clear that offenses joined need not stem from the same transaction. The second sentence of Rule 13.3(a) prohibits joinder of offenses in the same count of an indictment. This rule supersedes Ala.Code 1975, 15-8-52, which states, "When offenses are of the same character and subject to the same punishment, the defendant may be charged in an indictment with the commission of either in the same count in the alternative." There is no apparent necessity for alternative pleading in the same count where such pleading can be done as effectively in separate counts, and it avoids the complicated technical problems involved in requiring the state to elect the offense for which it desires to try the defendant. This rule is not intended to change Ala.Code 1975, 15-8-50, providing for allegations in the alternative in the same count where the offense may be committed by different means or with different intents. The last sentence of Rule 13.3(a) allows misdemeanors and felonies to be joined in the same indictment. This rule changes prior case law. In Brandies v. State, 44 Ala.App. 648, 649, 219 So.2d 404, 405 (1968), cert. denied, 283 Ala. 712, 219 So.2d 409 (1969), the court stated, "It is axiomatic under our cases that felonies and misdemeanors are not to be joined in the same indictment, let alone in the same count." When the other requirements of the rule are met, there is no reason to require the state to go to the expense and effort of trying the defendant on different indictments. Moreover, even if charged in separate indictments, they could be consolidated for trial under section (c). Comments to the ABA Standards for Criminal Justice, supra, emphasize that the standard provides the outer limits of permissible joinder of offenses. It does not follow that a joint trial on all the charges is always desirable. The prosecutor should have leeway not to join offenses, and the defendant should have a right to severance under appropriate circumstances.

Rule 13.3(b) is based on Rule 8(b), Fed.R.Crim.P., and ABA, Standards for Criminal Justice, Joinder and Severance, 13-2.2 (2d ed. 1986). The second sentence of the rule is taken from Rule 8(b), Fed.R.Crim.P. Section 13.3(c) allows consolidation of offenses where joinder would have been proper in the initial instance, taking into consideration the factors which would require severance under Rule 13.4. Section (d) states the obvious result of joinder and should be read in conjunction with Rule 13.4. Additional jurors required for the trial of two or more defendants are provided pursuant to Rule 18.4(0(2).

Alabama Rules of Criminal Procedure Rule 13. Charges: Indictment, Information, and Complaint.

Rule 13.4. Severance.

(a) RELIEF FROM PREJUDICIAL JOINDER. If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance, the court may order the district attorney to deliver to the court for inspection, in camera, any statements or confessions made by the defendants that the state intends to introduce in evidence at the trial. However, without a finding of prejudice, the court may, with the agreement of all the parties, order a severance of defendants or an election of separate trials of counts or charges. (b) TIMELINESS AND WAIVER. A defendant's motion to sever offenses or defendants must be made not more than seven (7) days after arraignment or filing of a written plea of not guilty prior to trial, or, in the event the court has ordered charges or defendants to be tried jointly, pursuant to Rule 13.3, then within seven (7) days of the court's order, in any event, prior to trial. If, after the expiration of these time periods, a ground not previously known arises, or becomes known, either before or during trial, and that ground could not have been discovered previously through the exercise of due diligence, the defendant may move for severance of all counts, but must do so at the earliest opportunity. The right to move for severance is waived if a proper motion is not timely made. (c) JEOPARDY. No severance of offenses or defendants may be ordered after trial has commenced unless the defendant consents and a mistrial has properly been declared as to such offense or defendant. Severance of offenses during trial, upon motion of the defendant or with the defendant's consent, shall not bar a subsequent trial of that defendant on the offenses severed.

Committee Comments

Rule 13.4(a) is from the ABA, Standards for Criminal Justice, Joinder and Severance 13-3.1 and 13-3.2 (2d ed. 1986). Prior Alabama law provides for severance of defendants on demand. Ala.Code 1975, 15-14-20, provides, "When two or more defendants are jointly indicted, they may be tried either jointly or separately, as either may elect." An early case, Wilkins v. State, 112 Ala. 55, 21 So. 56 (1895), held that if a separate trial is not demanded, it is in the sound discretion of the court to decide whether

the trial will be joint or several. The defendant does not have a right to demand that the trial be joint. Under Rule 13.4(a), the defendant is not automatically entitled to severance on demand. Ala.Code 1975, 15-17-2, provides, "When several persons are indicted and tried jointly, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they agree, on which a judgment must be entered accordingly, and the case as to the other defendants may be tried by another jury." It is not necessary under these rules to renew a motion for severance at trial or after the time at which the suggested prejudice actually occurred in order to preserve a claim of error from denial of such motion.

Alabama Rules of Criminal Procedure Rule 13. Charges: Indictment, Information, and Complaint.

Rule 13.5. Amendment of charge; defect in charge

(a) AMENDMENT OF CHARGE. A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant's consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. (b) DEFECTS IN CHARGES. No issue concerning a defect in the charges shall be raised other than by a motion filed in accordance with Rule 15. (C) EFFECT OF DEFECT IN CHARGE. (1) A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense. (2) No charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits. Committee Comments Ala.Code 1975, 15-8-90, provides: "An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person property or matter therein stated is incorrectly described." This Code section reflects the common law view that an indictment cannot be amended, even as to immaterial matters, without the consent of the defendant, and it has been consistently held that to permit amendment without such consent Fearn v. City of Huntsville, 568 So.2d 349 is reversible error. (Ala.Crim.App.1990); Spurlin v. State, 539 So.2d 403 (Ala.Crim.App.1988), affd, 539 So.2d 407 (Ala.1989); Ex parte Sisson, 528 So.2d 1159 (Ala.1988); Dix v. State, 8 Ala.App. 338, 62 So. 1007 (1913); Gregory v. State, 46 Ala. 151 (1871). See Rule 5.3(d), A.R.Crim.P.

If the defendant refused to consent, or if the amendment concerned a matter of substance and not form, then the procedure was to seek a new indictment. "If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time...." Ala.Code 1975, 15-8-91. The common law rule, however (except as to amendments to charge a and not constitutional. Thus, Rule 13.5(a) is a permissible change of prior rules of procedure. The need for this rule is cited in Ex parte Allred, 393 So.2d 1030 (Ala.1981), concurring opinion of Justice Maddox. Rules 13.5(b) and (c)(1) make it clear that the proper means of challenging the legality or sufficiency of the indictment is by a motion to dismiss under Rule 15. Rule 13.5(c)(2) provides a requirement that the defect be prejudicial to the defendant before it will be fatal to a conviction. In cases where the circuit court has original trial jurisdiction over an indictment charging a felony offense, the court does not lose jurisdiction if the indictment is amended to charge only a misdemeanor offense or if all felony offenses charged therein are dismissed or nol-prossed. Ala.Code 1975, 12-1130(2).