An indictment may be found only upon the concurrence of twelve (12) or more jurors. The indictment shall be returned by the grand jury to a judge in open court. If the defendant has been arrested and twelve (12)
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jurors do not concur in finding an indictment, the foreman shall so report to the court in writing forthwith. When the name of the indicted person is unknown but his or her identity is established to the satisfaction of the grand jury by means of forensic Deoxyribonucleic Acid (DNA) testing of evidence, then such indictment shall be filed by the grand jury with the Court as a Special Fictitious Name Indictment. The authority to file a special fictitious name indictment pursuant to this Section shall be in addition to any other authority in law for the filing of an indictment when the name of an indicted person is unknown. NOTE: The first paragraph of this section is substantively the same as former Rule 6(f) and former § 805(d). See also Fed. R. Crim. P. 6(f); Cal. Pen. Code §§ 940, 944. The last sentence of the first paragraph has been revised to refer to those cases where the defendant "has been arrested;" former law referred to those cases where "the defendant is in custody or has been given bail." No change in substance is intended but the latter phrase would be too limited as a reference to the release procedures now provided. See Chapter 40 (commencing with § 40.10). The second paragraph was added by P.L. 29-042:2 (Jan. 2, 2008). SOURCE: Amended by P.L. 29-042:2 (Jan. 2, 2008).