How many jurors must agree to return an indictment in federal versus state grand juries?
Executive summary
Federal grand juries require a quorum of 16–23 members and, under Rule 6 of the Federal Rules of Criminal Procedure, at least 12 jurors must concur to return an indictment (a “true bill”) [1][2][3]. State practice is not uniform: the Fifth Amendment’s grand-jury requirement applies only to federal prosecutions, and states either dispense with grand juries or set their own thresholds—ranging from simple majorities to supermajorities (two‑thirds or three‑quarters), with specific rules varying by state [4][5][6].
1. Federal rule: the numeric floor and the “12 must concur” rule
The federal system is precise: Rule 6 contemplates a panel of 16 to 23 members, requires a quorum (generally 16) to conduct business, and explicitly provides that an indictment may be returned only if at least 12 jurors concur in the finding of probable cause [1][2][3]. Department of Justice guidance and U.S. attorney materials reiterate that federal grand juries are typically composed of approximately 16–23 citizens and that at least a dozen jurors must agree to issue an indictment [7][8].
2. Constitutional backing and federal exclusivity of the Fifth Amendment guarantee
The Fifth Amendment’s Grand Jury Clause—“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”—is the constitutional foundation for the federal indictment requirement, and courts treat an indictment by a properly constituted grand jury as satisfying the Fifth Amendment for federal prosecutions [9][10]. Importantly, that provision has not been incorporated against the states; Congress Research Service and constitutional commentary note that the constitutional right to a grand jury indictment is required only in federal cases, leaving states free to adopt different charging systems [4][10].
3. State practice: wide variability and jurisdictional choices
States diverge sharply: many have abandoned mandatory grand jury indictments for all felonies, instead allowing prosecutors to initiate charges by information or complaint; among states that do use grand juries, the number of jurors and the concurrence threshold are set by state law and vary from a simple majority to supermajorities such as two‑thirds or three‑quarters [4][6]. Legal commentary and state-focused practice guides stress that grand jury size and voting rules are local matters—some states empanel panels as small as 12, others mirror the federal 23‑member ceiling, and the required vote to indict depends on statutory or constitutional provisions specific to the state [5][6].
4. Concrete state examples and the spectrum of thresholds
Illustrations from reporting and academic discussion show the range: Missouri’s grand jury system can return an indictment with nine of twelve jurors, a rule that commentators cite to demonstrate non‑unanimous or non‑twelve‑juror thresholds in state practice [5]. Other state sources and defense‑practice materials note jurisdictions that demand supermajorities—two‑thirds or three‑quarters—while some practices simply require a simple majority of those present; because state law controls, one must look to the particular state statute or constitution for the exact number [6][11].
5. Why the differences matter: procedure, prosecutorial power and oversight
The federal rule—requiring at least 12 concurring jurors out of a larger panel—creates a bright numerical standard that intersects with federal prosecutorial practice and DOJ guidance on grand jury usage [1][8]; by contrast, state variability means the threshold for moving from investigation to formal charging can be substantially lower or higher depending on local law, affecting the check a grand jury is supposed to provide on prosecutorial charging decisions [4][5]. Scholars and court commentators emphasize that differences in grand jury size, secrecy, and required concurrence shape both outcomes and critiques—whether that be concerns that grand juries are too deferential to prosecutors or that they are an important community safeguard [5][10].
6. Limitations in reporting and next steps for precise answers
This analysis rests on federal rules and sampled state commentary: Rule 6 and DOJ materials clearly establish the federal numeric requirement, while state practice is documented as variable but not standardized across sources—therefore, to know the exact number required in any specific state grand jury one must consult that state’s statutes or constitution because available summaries and legal guides identify ranges and examples rather than a single uniform rule [1][4][6].