Alabama Law Journal

11th Circuit reinstates lawsuit against sheriff for refusing out-of-state property bond

An article on Examiner.com addresses a new ruling out of the 11th Circuit of Appeals in Atlanta, addressing a Florida sheriff's refusal to honor a property bond based on property from another county.  To see the full article, click on the link below:

11th Circuit reinstates civil rights lawsuit by inmate over sheriffs refusal to accept property bond

Innocent Man Executed in Texas; Cameron Todd Willingham Proven Innocent of Arson Murder After His Death

In the category of executing the innocent comes confirmation that a Texas man was killed by the State over an accidental fire that started while he was asleep.  Cameron Todd Willingham has been proven innocent of the allegation that he set fire to his house and killed his children. 

To read how an innocent man was executed, and how his innocence was proven just a few years too late to help him, read the following story:

Innocent Man Executed in Texas; Cameron Todd Willingham Proven Innocent of Arson Murder Too Late

Hidden tax in the courts as Alabama Supreme Court raises filing fees

The Alabama Supreme Court on August 25, 2009, announced another increase in court filing fees.  The order does not state why it was necessary to raise the costs.  Perhaps it was to help pay the bloated salaries paid to Alabama judges? 

See the following article about the new filing fees and the salaries of Alabama judges.

Alabama Supreme Court raises court filing fees in another hidden tax on citizens

Juror lies about residency, and man convicted of rape and sodomy gets a new trial

A man in Escambia County will receive a new trial on allegations against him for rape and sodomy of a 7-year-old girl.  The man was convicted by a jury.  However, one of the jurors was not truthful about actually being a resident of Florida rather than of Alabama.  As a result, the Alabama Court of Criminal Appeals has set aside the conviction and ordered a new trial. 

See the full story by clicking the link below:

New trial ordered on allegation of rape and sodomy of child due to juror dishonesty about residency

Rule 12.4 of the Alabama Rules of Criminal Procedure

In keeping with our goal of posting the entire text of the Alabama Rules of Procedure online for the general public, the following is the text of the next rule in the series.  Additional rules will be posted each day.  To read the entire collection, visit the Criminal Procedure link on the left.

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.

Rule 12.3 of the Alabama Rules of Criminal Procedure

In keeping with our goal of posting the entire text of the Alabama Rules of Procedure online for the general public, the following is the text of the next rule in the series.  Additional rules will be posted each day.  To read the entire collection, visit the Criminal Procedure link on the left.

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, 12-16-172.

      Rule 12.3(b) substantially changes past practice. Ala. Code 1975, § 12-16-202, 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 Nat'l 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, § 12-16-196, 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."

Rule 12.2 of the Alabama Rules of Criminal Procedure

In keeping with our goal of posting the entire text of the Alabama Rules of Procedure online for the general public, the following is the text of the next rule in the series.  Additional rules will be posted each day.  To read the entire collection, visit the Criminal Procedure link on the left.

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 discharged 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

Rule 12.1 of the Alabama Rules of Criminal Procedure

In keeping with our goal of posting the entire text of the Alabama Rules of Procedure online for the general public, the following is the text of Rule 12.1.  Additional rules will be posted each day.  To read the entire collection, visit the Criminal Procedure link on the left.


Rule 12. Selection of venire; the grand jury and the petit jury panels

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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.

      (c) QUALIFYING THE VENIRE. 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:

      (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 12-16-64, relating to qualifications and selection of jurors. See also Ala. Code 1975, §§ 12-16-70 through 12-16-127, 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 Ala. 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 bylaw to any grand For] 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.

New approach on posting Rules of Criminal Procedure

At AlabamaLawJournal.com, we decided to post the text of the Alabama Rules of Criminal Procedure to the site to make accessing them convenient for the general public. We expected to post them all within a few hours.

Perhaps we were overly ambitious.

Posting the Rules has turned out to be an enormously time consuming project, especially considering that each rule has multiple subsections which must be posted separately. Also, since each post appears as the latest entry to the site, our articles are getting buried in the rules.

We are still committed to posting the entire text of the rules to our website, along with other sets of rules such as the rules of civil procedure and the rules of appellate procedure. However, to keep the site from being overwhelmed with the number of rules being posted, we are converting to a new system.

Effective immediately, we will start entering a daily post of only one or two rules of procedure. After that, the rest of the entries of the day will be on other topics.

While this will slow down our progress on posting the rules, this approach will be more beneficial to the site in general.

Please return to our site daily if you are following our rules posting. If you only visit our site to read the new articles and blog entries, then keep coming back for those each day too.

Thanks for visiting our blog. We hope that this approach will work better for our readers.

Rule 11.9 of the Alabama Rules of Criminal Procedure

Rule 11.9. Inapplicability to district and municipal courts.

      Rule 11 does not apply to proceedings in district or municipal courts. (Amended 5-1-96, eff. 10-1-96.)

      Committee Comments to Rule 11.9 (as Amended Effective October 1, 1996)

      Because proceedings in district and municipal courts are conducted without a jury and with the right to a trial by jury available on appeal for trial de novo in the circuit court, and in recognition of the defendant's right to have a jury determine the question of competency to stand trial, the procedure established by Rule 11 is restricted to the circuit court.