Rule 6. The Grand Jury

(a) By Whom Convened. The presiding superior court judge of the judicial district encompassing the grand jury location specified in section (b) shall convene the grand jury. (b) Where Grand Juries Shall Be Convened. The grand jury shall be convened at the superior court location shown in the following table, based on the superior court venue district in which the matter under investigation occurred. The superior court venue districts are defined in the Criminal Rule 18 venue map. Superior Court Venue District in which the matter under investigation occurred Location at which the grand jury will be convened Anchorage Anchorage Bethel Bethel Cordova Anchorage or Palmer Craig Juneau, Ketchikan, or Sitka Delta Junction Fairbanks Dillingham Dillingham or Anchorage Fairbanks Fairbanks Glennallen Anchorage or Palmer Homer Kenai Juneau Juneau, Sitka, or Ketchikan Kenai Kenai Ketchikan Ketchikan, Sitka, or Juneau Kodiak Kodiak Kotzebue Kotzebue Naknek Anchorage Nenana Fairbanks Nome Nome Palmer Palmer Petersburg Juneau, Ketchikan, or Sitka Seward Kenai Sitka Sitka, Juneau, or Ketchikan Tok Fairbanks Unalaska Utqiaġvik – (formerly Barrow) Anchorage Utqiaġvik - (formerly Barrow) Valdez Anchorage or Palmer Wrangell Juneau, Ketchikan, or Sitka The presiding judge of a judicial district shall be empowered to call a special jury to be convened at a site other than the site designated in this subsection if the presiding judge determines that the designation of a special site is necessary in the interest of justice. (c) Selection of Prospective Grand Jurors. Prospective grand jurors shall have the qualifications and shall be drawn and selected as set forth by law, with the additional provisions: (1) prospective grand jurors shall be selected from the population within a fifty-mile radius of the place where the grand jury is convened, and (2) the presiding judge of the superior court may with the approval of the administrative director select prospective grand jurors at large from the judicial district in which the matter under investigation occurred. (d) Summoning Grand Jurors. At least once each year the presiding judge of the superior court in each judicial district shall order one or more grand juries to be convened at such times as the public interest requires. The grand jury shall consist of not less than 12 nor more than 18 members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement. Any qualified member of the grand jury panel not designated to serve as a member of the grand jury may be placed on the petit jury panel. An otherwise qualified person called for petit jury service may be placed on the grand jury panel. A grand jury shall serve until discharged by the presiding judge but no grand jury may serve more than 4 months, unless this period is extended for good cause. (e) Swearing and Instructing Jurors. (1) The following oath shall be administered by the clerk of the superior court to the persons selected for grand jury duty: “You and each of you as members of this grand jury for the State of Alaska, do solemnly swear or affirm that you will diligently inquire and true presentment make of all such matters as shall be given to you for consideration, or shall otherwise come to your knowledge in connection with your present service; that you will preserve the secrecy required by law as to all proceedings had before you; that you will present no one through envy, hatred or malice, or leave any one unpresented through fear, affection, gain, reward, or hope thereof; but that you will present all things truly and impartially as they shall come to your knowledge according to the best of your understanding.” (2) When the grand jury is sworn, the court shall charge the jury with written instructions, which the court deems proper, concerning the powers and duties of the grand jury. (f) Alternate Jurors. The presiding judge may direct that alternate jurors be designated at the time a grand jury is selected. Alternate jurors in the order in which they were designated may thereafter be impaneled as provided in paragraph (s) of this rule. Alternate jurors shall be drawn in the same manner and shall have the same qualifications as the regular jurors, and if impaneled shall be subject to the same challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. (g) Objections to Grand Jury and to Grand Jurors. A motion to dismiss the indictment or to expunge a report of the grand jury may be based upon objections to the array or the lack of legal qualification of an individual juror. An indictment shall not be dismissed nor a report expunged upon the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to paragraph (h) of this rule that a majority of the total number of grand jurors comprising the grand jury when the grand jury is sworn and charged with instructions, after deducting the number not legally qualified, concurred in finding the indictment or making the report. (h) Foreperson and Deputy Foreperson. The presiding judge shall appoint one of the jurors to be foreperson and another to be deputy foreperson. The foreperson shall have power to administer oaths and affirmations and shall sign all indictments and reports. The foreperson or another juror designated by the foreperson shall keep a record of the number of jurors concurring in the finding of every indictment and the issuance of every report and shall file the record with the clerk of the court, but the record shall not be made public except on order of the presiding judge. During the absence of the foreperson, the deputy foreperson shall act as foreperson. (i) Preparing Indictments and Presentments. The prosecuting attorney shall prepare all indictments and presentments for the grand jury, and shall attend its sittings to advise it of its duties and to examine witnesses in its presence. (j) Investigation of Crime Initiated by Grand Juror. If a grand juror discloses to other grand jurors that he or she has reason to believe a crime has been committed that is triable by the court and proposes that the grand jury investigate that crime, the grand juror shall also disclose the belief to the prosecuting attorney. If approved by a majority of the grand jurors, the grand jury may investigate the facts and circumstances relating to the belief with the assistance and oversight of the prosecuting attorney, in accordance with Rule 6.1(d) and (e)(1)-(2). (k) Record of Proceedings. All proceedings before the grand jury, including the testimony of witnesses and any statements made by the prosecuting attorney or by any of the jurors, shall be electronically recorded. (l) Who May Be Present. The prosecuting attorney, the witness under examination, a court clerk for the purpose of recording the proceedings, and, when needed, an interpreter, a person transcribing for the deaf, and any law enforcement officer who has custody of the witness being examined may be present while the grand jury is in session. No persons other than the jurors and any interpreter or transcriber necessary to assist a juror who is hearing or speech impaired shall be present while the grand jury is deliberating or voting. (m) Secrecy of Proceedings and Disclosure. (1) The selection, swearing, and charging of grand jurors and all matters occurring before the grand jury are secret, except as otherwise provided by this rule. Disclosure of matters, other than the grand jury’s deliberations and the vote of any juror, may be made to the prosecuting attorney for use in the performance of the prosecuting attorneys’ duties. Otherwise a judge, juror, attorney, interpreter, person transcribing for the deaf, law enforcement officer, court clerk, or a typist who transcribes recorded testimony may disclose matters only when so directed by the court preliminary to or in connection with a judicial or administrative proceeding. (2) The returns of indictments to the superior court are public proceedings, unless the court directs that the proceedings be closed to the public and the indictment kept secret until the defendant is in custody or has given bail. In that event, the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons. (3) No obligation of secrecy may be imposed upon any person except in accordance with this rule. (n) Availability of Grand Jury Record to Defendant. Upon request, a defendant shall be entitled to listen to the electronic recording of the grand jury proceedings and inspect all exhibits presented to the grand jury. Upon further request the defendant may obtain a transcript of such proceedings and copies of such exhibits. The trial of the case shall not be delayed because of the failure of a defendant to request the transcript. The availability of a grand jury report is governed by Criminal Rule 6.1. (o) Finding and Return of Indictment. (1) An indictment may be found only upon the concurrence of a majority of the total number of jurors comprising the grand jury when the grand jury is sworn and charged with instructions, after deducting the number not legally qualified. (2) If an indictment is not found, the indictment shall be endorsed “not a true bill” and signed by the foreperson. If an indictment is found, the indictment shall be endorsed “a true bill” and signed by the foreperson. (3) (i) If an indictment is endorsed “a true bill,” the indictment shall be presented in open court and filed with the clerk where it shall be open to public inspection. (ii) If an indictment is endorsed “not a true bill” and a complaint or information was previously filed in a district court, the indictment shall be presented in open court and filed with the clerk where it shall be open to public inspection. (iii) If an indictment is endorsed “not a true bill” and no complaint or information was previously filed in district court, the indictment shall be filed with the clerk and held under seal. (iv) The foreperson or deputy foreperson may present an indictment in open court without the presence of other grand jury members. (4) If no indictment is found, the court shall hold the minutes, log notes, and record of the grand jury proceeding under seal. If an indictment is found, the log notes, transcript, and record of the grand jury proceeding will be confidential, as defined in Administrative Rule 37.5(c), except that the grand jury documents may be used by a party or counsel and by their staff, investigators, experts, and others as necessary for the preparation of the case. This paragraph does not preclude a party from attaching relevant portions of these documents to a pleading or motion, so long as victim and witness information is protected as provided in AS 12.61.100–.150. (5) The return of exhibits used during the grand jury proceedings is governed by Criminal Rule 26.1(h). (p) Questions to the Superior Court. (1) Whenever there is doubt from the evidence presented (i) whether the facts constitute a crime, or (ii) whether a defendant is subject to prosecution by reason of either a lapse of time or a former acquittal or conviction, then the grand jury by a concurrence of at least five members may, after consulting the prosecuting attorney, present the facts of the case to the court with a request for instruction on the law. (2) The foreperson shall make the presentation of facts and the request for instruction on the law to the court in the presence of the grand jury. (3) The presentation to the court shall not mention the names of individuals. Any written document containing the presentation of facts and request for instruction on the law shall not be filed with the court, nor shall it be kept by the court beyond the time that the grand jury is discharged. (4) When the presentation of facts and request for instruction is made, the court shall give such instruction on the law as it considers necessary. (q) Defense Witnesses. Although the grand jury has no duty to hear evidence on the behalf of the defendant, it may do so. (r) Sufficiency of Evidence. When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses. An indictment shall not be found nor a presentment made upon the statement of a grand juror unless such grand juror is sworn and examined as a witness. The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant. (s) Admissibility of Evidence. (1) Evidence which would be legally admissible at trial shall be admissible before the grand jury. Witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. (2) Hearsay evidence related to the offense, not otherwise admissible, may be admitted into evidence before the grand jury if the individual presenting the hearsay evidence is a peace officer involved in the investigation. (3) If the testimony presented by a peace officer under paragraph (2) of this section is inaccurate because of intentional, grossly negligent, or negligent misstatements or omissions, then the court shall dismiss an indictment resulting from the testimony if the defendant shows that the inaccuracy prejudices substantial rights of the defendant. (4) When a prior conviction is an element of an offense, hearsay evidence received through the Alaska Public Safety Information Network or from other government agencies of prior convictions may be presented to the grand jury. (t) Excusing Grand Jurors. A seated juror may be excused for a particular case, permanently excused, or temporarily excused under the following circumstances: (1) The prosecutor shall excuse a juror for a particular case when the juror informs the prosecutor that the juror cannot be fair or impartial in deciding that case. The prosecutor may ask the presiding judge to impanel an alternate. (2) If the prosecutor is made aware of a grand juror’s potential prejudice or bias that could affect the grand jury’s impartial deliberations, or if the prosecutor seeks to challenge a juror for cause, the prosecutor shall present the information as to prejudice or bias or the challenge to the presiding judge. The judge shall provide the juror with notice of the prosecutor’s action and shall question the juror concerning the potential bias or challenge. After hearing from the juror, the judge may request additional information from the prosecutor, other jurors, or other sources. If potential bias or cause is shown, the judge may excuse the juror permanently or for a particular case. The judge may impanel an alternate juror in place of the juror excused. If no potential bias or cause is shown, the judge shall allow the juror to remain and may take other appropriate action. (3) The presiding judge may excuse a juror temporarily because of illness or a personal or business matter that requires the juror’s attention. The presiding judge may delegate this authority to another judicial officer. (4) An alternate juror must be present during the presentation of all evidence related to that case in order to vote on the proposed bill. (u) Delegation of Duties. Whenever a superior court is sitting other than where the presiding judge is sitting, or the presiding judge is unavailable, the presiding judge may delegate duties under this rule to another judicial officer. However, the presiding judge may delegate duties under Criminal Rule 6.1 only to another superior court judge. (v) Telephonic Testimony. (1) A witness may participate telephonically in grand jury proceedings if the witness: (A) would be required to travel more than 50 miles to the situs of the grand jury; or (B) lives in a place from which people customarily travel by air to the situs of the grand jury. (2) A witness who is not entitled to participate telephonically under subparagraph (1) may participate telephonically with approval of the presiding judge of the judicial district, or the presiding judge’s designee. A motion to allow telephonic testimony under this subparagraph may be ex parte and shall be accompanied by an affidavit of the prosecuting attorney that states the reason telephonic testimony is requested. (3) If a witness participates telephonically in grand jury proceedings, after the witness is sworn, the prosecuting attorney shall require the witness to: (A) state the location from which the witness is testifying; and (B) verify (i) that the witness’ conversation cannot be overheard; (ii) that no extension for the telephone from which the witness is testifying is in use; and (iii) that the witness will notify the grand jury immediately if any person can overhear the witness’ testimony or if the witness becomes aware that an extension for the telephone enters use during the testimony. (Adopted by SCO 4 October 4, 1959; amended by SCO 30 effective February 1, 1961; by SCO 49 effective January 1, 1963; by SCO 136 dated August 27, 1971; by SCO 136A dated September 13, 1971; by Amendment No. 1 to SCO 136 dated October 17, 1972; by SCO 146 effective October 31, 1971; by Amendment No. 1 to SCO 146 effective October 31, 1971; by SCO 157 effective February 15, 1973; by SCO 216 effective October 1, 1975; by SCO 261 effective December 30, 1976; by SCO 539 effective October 1, 1982; by SCO 706 effective May 21, 1986; by SCO 711 effective September 15, 1986; by SCO 881 effective July 15, 1988; by SCO 937 effective Rule 6.1 January 15, 1989; by SCO 945 effective January 15, 1989; by SCO 956 effective July 15, 1989; by SCO 967 effective July 15, 1989; by SCO 969 effective July 15, 1989; by SCO 973 effective July 15, 1989; by SCO 991 effective January 15, 1990; by SCO 997 effective January 15, 1990; by SCO 1012 effective January 15, 1990; by SCO 1039 effective January 15, 1991; by SCO 1046 effective January 15, 1991; by SCO 1061 effective July 15, 1991; by SCO 1115 effective November 12, 1992; by SCO 1171 effective July 15, 1995; by SCO 1181 effective July 15, 1995; by SCO 1204 effective July 15, 1995; by SCO 1269 effective July 15, 1997; by SCO 1293 effective January 15, 1998; by SCO 1338 effective June 11, 1998; by SCO 1381 effective April 15, 2000; by SCO 1439 effective October 15, 2001; by SCO 1482 effective October 15, 2002; by SCO 1490 effective October 15, 2002; by SCO 1618 effective October 15, 2006; by SCO 1646-Amended effective October 15, 2007; by SCO 1745 effective April 15, 2011; by SCO 1760 effective October 14, 2011; by SCO 1872 effective April 27, 2016; by SCO 1916 effective January 1, 2018; by SCO 1949 effective July 9, 2019; by SCO 1993 effective December 1, 2022; and by SCO 2030 effective January 1, 2025) Note to SCO 1269: Criminal Rule 6(r) [now 6(s)] was amended by §§ 18 & 19 ch. 143 SLA 1996 to allow certain hearsay evidence to be presented to the grand jury in a prosecution for felony DWI or felony refusal to submit to a chemical test. Section 21 of this order is adopted for the sole reason that the legislature has mandated the amendments. Note: Subparagraphs (r)(2) and (3) [now (s)(2) and (3)] of Criminal Rule 6 were added by ch. 41, §§ 1-2, SLA 1985, adopting AS 12.40.110. Note to SCO 1204: Criminal Rules 6(r)(3) & (4) [now 6(s)(3) & (4)] were added by ch. 114 § 2 SLA 1994. Section 4 of this order is adopted for the sole reason that the legislature has mandated the amendments. Note to SCO 1293: Criminal Rule 6(u) [now 6(v)] was amended by §§ 20 & 25 ch. 63 SLA 1997 to eliminate the requirement that the prosecution must obtain permission from the court before a victim can testify by telephone. Section 1 of this order is adopted for the sole reason that the legislature has mandated the amendment. Note to SCO 1338: Criminal Rule 6(r)(2) [ now 6(s)(2)] was amended by § 21 ch. 81 SLA 1998 to allow hearsay evidence of a statement made by a child to be admitted before the grand jury in a prosecution for first degree indecent exposure as well as the other sex offenses defined in AS 11.41. Section 1 of this order is adopted for the sole reason that the legislature has mandated the amendment. Note: Chapter 10, SLA 2019 (HB 49) enacted a number of changes relating to criminal procedure. Section 135 of the Act amended paragraph (r)(6) [now (s)(6)] to allow the admissibility of an Alaska Public Safety Information Network or other government agency report of prior convictions if the prior conviction is an element of the offense. This rule change is adopted for the sole reason that the legislature has mandated the amendment. Note to SCO 2030: Criminal Rule 6(s) was amended by sec. 61 Chapter 11, SLA 2024 (HB 66) regarding the admissibility of evidence in grand jury proceedings. The rule change is adopted for the sole reason that the legislature has mandated the amendment. Cross References (b) CROSS REFERENCE: AS 12.40.030; AS 12.40.040; AS 12.40.050; AS 12.40.060 Rule 6.1. Grand Jury Reports – Public Welfare of Safety (a) Authority to Investigate and Issue Reports. A grand jury is constitutionally authorized to investigate and make reports and recommendations concerning the public welfare or safety. An issue concerns the public welfare or safety, and therefore is within the scope of a grand jury’s investigative authority, when (1) the investigation of the issue could further a public policy of the state; (2) the outcome of the investigation could reasonably be expected to benefit a large number of people, rather than to benefit only an individual or small group of individuals; and (3) the issue involves a matter of general importance to a large number of people, rather than to an individual or a small group of individuals. An issue that concerns primarily a private matter rather than one that concerns the general public is not generally an issue concerning the public welfare or safety within the scope of a grand jury’s investigative authority. An indictment is not a “report” as used in this rule and Criminal Rule 6. COMMENTARY to Rule 6.1(a): The grand jury is constitutionally authorized to investigate matters of public welfare or safety and to issue reports on the results of such investigations; subsection (a) generally describes the reasonable scope of that authority. Adherence to subsection (a) will ensure that an investigative grand jury is justified and that the grand jury’s use of State of Alaska resources is reasonable and appropriate. To be investigated, a matter must concern the public welfare or safety; for example, systemic issues or an ongoing, recurring issue impacting the general public could be within the scope of a grand jury investigation. But purely private matters such as, for example, an investigation into any individual court case of any type (whether currently open or closed), or an investigation into the Department of Law’s decision not to prosecute a particular incident as a crime, or an investigation into any private dispute between or among citizens that could appropriately be the basis for a civil or other court case, are not generally matters of public welfare or safety within the scope a grand jury’s investigative authority. Rule 6.1 (b) Grand Juror Requests to Investigate a Matter of Public Welfare or Safety. (1) An individual grand juror may propose to the prosecuting attorney that the grand jury investigate a matter concerning the public welfare or safety. If the prosecuting attorney has a reasonable basis to believe that (A) the matter proposed concerns the public welfare or safety and is within the grand jury’s authority as described in subsection (a), and (B) the proposal is not patently groundless, made for purposes of delay or harassment, or otherwise proposed in bad faith, the prosecuting attorney shall, within a reasonable period of time considering resources and Department of Law priorities, describe the proposal to the grand jury for its consideration. If a majority of the grand jurors, after a reasonable time for consideration, determines that the matter proposed should be the subject of an investigation, then the prosecuting attorney shall facilitate the grand jury’s investigation of the matter and provide assistance and oversight to the grand jury for preparation of the report. (2) If a proposed grand jury investigation concerns possible misconduct on the part of the prosecuting attorney or others in the Department of Law such that having the prosecuting attorney oversee the investigation would create an appearance of impropriety or a conflict of interest, the prosecuting attorney shall immediately advise the Attorney General of the potential conflict. The Attorney General, in his or her discretion, may appoint a neutral prosecutor to assist the grand jury and oversee the preparation of the grand jury report. (3) If an individual grand juror has a reasonable and good faith basis to believe that having the prosecuting attorney oversee the investigation creates an appearance of impropriety or a conflict of interest because the investigation involves possible misconduct by that prosecuting attorney or others in the Department of Law, the grand juror may notify the superior court. The grand juror shall orally describe the basis for his or her belief to the court in the presence of the grand jury. Any further inquiry or proceedings conducted by the superior court relating to a matter raised under this paragraph shall be confidential. (c) Citizen Requests to Initiate Investigative Grand Jury. (1) If a citizen who is not serving as a grand juror believes that a matter of public welfare or safety should be investigated by a grand jury, the citizen may direct the citizen’s concern to the Attorney General for consideration and for possible review and investigation by a grand jury. COMMENTARY to Rule 6.1(c)(1): The grand jury process may broadly be considered a function of both the judicial branch and the executive branch. The court system convenes a grand jury, provides a clerk for recording the sessions, and provides logistical support such as a physical space for the sessions. But grand jury sessions are led by and conducted by the Department of Law, i.e., the executive branch. The court system does not play a role in presenting evidence or moderating proceedings (except for the limited and rare situation in which a grand jury seeks a clarification of law, as provided in Criminal Rule 6(p)); a judge is not present for grand jury sessions while evidence is being presented or when any particular case or matter is being discussed or considered. This limited judicial branch role and expansive executive branch role with respect to grand jury proceedings is unchanged when the grand jury fulfills its investigative function. Decisions as to what to present to the grand jury, including whether to present a matter requested by a citizen to the grand jury for investigation, rest with the executive branch. A grand jury has the constitutional authority to investigate appropriate matters when properly presented. This, in itself, does not mean that an individual citizen has a right to present any matter directly to the grand jury for consideration, or to seek a court order requesting or requiring that a grand jury conduct any investigation. A citizen seeking to have a grand jury investigate a matter of public welfare or safety may bring that issue to the attention of the Attorney General or his or her designee. It is up to the Attorney General or designee to review the matter and determine whether an investigation would be a valid and appropriate use of the grand jury’s authority, as described in this rule. The Attorney General or designee has discretion in making that determination, akin to the discretion that the Attorney General and designees regularly exercise in the course of their roles, for example in determining whether a particular incident should be pursued in a criminal prosecution. If the Attorney General or designee determines that the matter brought forward by a citizen is appropriate for a grand jury investigation, the prosecuting attorney will describe the issue to the grand jury and facilitate the investigation, following the procedures in subsection (b). (2) If a grand jury investigation initiated by a citizen request concerns possible misconduct on the part of the prosecuting attorney or others in the Department of Law such that having the prosecuting attorney oversee the investigation would create an appearance of impropriety or a conflict of interest, the process set forth in paragraphs (b)(2) and (3) of this rule applies. (3) A citizen who proposes an investigation under this subsection is not authorized to attend the grand jury investigative sessions unless the prosecuting attorney or a majority of the grand jurors conducting the investigation requests the citizen to do so for particular testimony or for a particular purpose. (d) Majority Required. (1) A grand jury may initiate an investigation of a matter only upon the concurrence of a majority of the total number of grand jurors on the panel at the commencement of the proceedings at which the prosecuting attorney presents the matter. (2) A grand jury report may be made only upon the concurrence of a majority of the total number of grand jurors on the panel at the commencement of the proceedings resulting in the report. The report must be signed by the foreperson. A grand jury report may include allegations of criminal conduct. Rule 6.1 (e) Subpoenas; Evidence; Proceedings. (1) While conducting an investigation and preparing a report concerning the public welfare or safety as described in this rule, a grand jury may issue a subpoena to compel testimony from witnesses or to compel the production of documents only with the approval of a majority of the grand jurors, after due consideration of the reasonableness of the proposed subpoena, the necessity of the anticipated testimony or documents, and the anticipated burden on and inconvenience to the recipient of the subpoena. If the prosecuting attorney reasonably believes that a subpoena approved by a majority of grand jurors was not approved in good faith, would be unreasonably burdensome on the recipient, is not reasonable, or is not necessary, the prosecutor may, without consent from or authorization by the grand jury, inform the superior court and seek a judicial determination whether the subpoena shall issue. (2) The presentation and admissibility of evidence during an investigative grand jury must comply with Criminal Rule 6(s). (f) Initial Judicial Review. The grand jury shall present any proposed report to the presiding judge of the judicial district. The judge shall examine the report and the grand jury record before the grand jury is discharged. The judge may order production of audio copies or transcripts of the grand jury proceeding and may request the prosecuting attorney to submit a summary of the evidence presented to the grand jury. The judge shall make specific findings on the record as required by the following subparagraphs. (1) The judge shall determine first whether the investigation was conducted in accordance with subsections (a) – (e) and whether the report satisfies the requirements of subparagraphs (d)(2). If it does not, the judge shall proceed under subparagraph (f)(3). (2) The judge shall then determine if publication of the report would improperly infringe upon a constitutional right of any person, including but not limited to improper interference with a person’s right to privacy or right to a fair trial in a pending or planned criminal proceeding. The judge shall make an ex parte on the record inquiry of the prosecuting attorney about any planned or pending criminal prosecutions related to the subject of the grand jury report. (3) If the judge determines that the report does not meet the standards of subsections (a)-(e), the judge shall return the report to the grand jury with an explanation of the reasons for returning the report. The grand jury may conduct further proceedings, revise the report, or seek appellate review of the judge’s decision not to release the report. (g) Judicial Review If Report Adversely Reflects on Identifiable Person. If the judge determines that the standards of paragraph (f) are satisfied, the judge shall determine whether any part of the report may reflect adversely on any person who is named or otherwise identified in the report. “Person” includes a natural person or an organization, but does not include a governmental subdivision or agency. If the report may adversely reflect on any identifiable person, the judge shall proceed under the following subparagraphs (g)(1)–(5). (1) The judge shall order that notice of the report be provided to the person. The notice must advise the person of his or her rights as provided in this paragraph. (2) The person may move, within ten days of notice of the report, for a hearing. The hearing will be held in camera and on the record. (3) The person must be given a reasonable period of time prior to the hearing to examine the grand jury report and the record of the grand jury proceedings. A person receiving notice or a copy of the report and record may not disclose any matter occurring before the grand jury except as permitted by the court. Each person receiving these materials must be advised of this obligation. (4) The person named or otherwise identified in the report may be represented by counsel at the hearing and may present argument as to whether the standards stated in subparagraph (g)(5) are satisfied. The prosecuting attorney may be present at this hearing and may also present argument. Neither side may present evidence nor examine witnesses, except that the named or otherwise identifiable person may submit a written response to the grand jury report which the person may request that the court issue with the report under paragraph (h). (5) The judge shall determine at the close of the hearing whether that part of the report which may adversely reflect upon a named or otherwise identified person is supported by substantial evidence or, if raised at the hearing, whether the report satisfies the requirements of paragraph (f) of this rule and paragraph (g) of Criminal Rule 6. If the judge finds that these requirements are not satisfied, the judge shall return the report to the grand jury with an explanation of why the report has not been released. The court may request that the grand jury consider further evidence as to the named or otherwise identifiable person. The grand jury may conduct further proceedings, revise the report, or seek appellate review of the decision not to release the report. (h) Release of Report. (1) The court shall withhold publication of the report until the expiration of the time for making a motion for a hearing under paragraph (g). If such a motion is made, publication must be withheld pending a ruling on the motion or pending any review under paragraph (i). All proceedings under this rule are confidential until the judge orders the report released. (2) If the judge finds that the standards of paragraphs (f) and (g) are met, the judge shall order the report released. The judge may order that a response to the report by a person named or otherwise identified, or other additional materials, be attached to the report as an appendix. The report and any appendices will be filed with the clerk of the court and made available for public inspection. The court shall also direct that copies of the report and any appendices be sent to other persons as reasonably requested by the grand jury. (3) The court may withhold publication of the report for a reasonable time, if the court determines that withholding the publication of the report is necessary to preserve the investigative and prosecutorial function relating to the alleged criminal conduct. (i) Appeal. (1) A judicial determination under paragraph (h) of this rule is a final order for purposes of appeal. Such an appeal is governed by Appellate Rule 216 except that the appeal is to the Supreme Court. Any named or otherwise identifiable person, the state, or the grand jury by majority vote may seek review of the presiding judge’s decision. (2) The grand jury will be permitted access to the record of the in camera hearing to assist it in determining whether to pursue appellate review. The grand jury shall maintain the confidentiality of this record.