The Grand Jury (And Its Sometimes Not so Grand Uses)

The recent events surrounding the refusal of two Grand Juries to approve the prosecution of police officers for killing unarmed civilians in Ferguson Missouri and New York City have received so much attention, that I thought it might be helpful to provide some background information. This is not intended to be exhaustive, and will apply with greater or lesser force to the various states because they all have laws that vary from each other. But, in general, this is how it works.

The Grand Jury is so called because it usually has more members than a Petit Jury. Nearly anyone who has had jury duty has been on a Petit Jury. A Petit Jury meets on a particular case, in public, with a judge and attorneys representing the various parties. Once it has decided the case, it is discharged.

The Grand Jury meets periodically during its term (usually a year) and is called upon to address a number of issues. These meetings are in secret without a judge. If there is a lawyer, that lawyer is a generally a prosecutor. Someone under investigation by a Grand Jury has no right to have a lawyer present, even while testifying. Although created in England in the 12th Century and spread throughout the Empire, the use of a Grand Jury has now been pretty much abandoned outside of the United States.

In the United States, Grand Juries have essentially two functions. They are: 1. To conduct a hearing to determine if someone will face felony charges before a Petite Jury; and, 2. To act as a watchdog agency over all branches of local government. It is this latter function that results in an annual Grand Jury report, sometimes to the great discomfort of local officials.

Many states do not use the Grand Jury system at all regarding criminal prosecutions. Others, such as California and Missouri have the ability to us the Grand Jury to get an indictment, but usually use an alternate system where a criminal complaint is filed against an accused. That is followed by a hearing to determine if there is probable cause to believe that a crime was committed and that the defendant committed the crime. Unlike the Grand Jury proceeding, this hearing is public, both sides have lawyers and it is presided over by a judge who hears evidence and argument from both sides and then makes a decision.

In other states, including New York, all felony cases must be presented to a Grand Jury unless the defendant waives that right.

The Grand Jury system in criminal cases has come under very harsh criticism because it is so completely under the control of the prosecutor. Although the Grand Jury can usually subpoena witnesses, typically, it will not know what witnesses to subpoena. The prosecutor selects the witnesses, asks all, or at least most, of the questions and tells the Grand Jury what law applies. Grand Juries doing criminal inquires are so thoroughtly under the sway of the prosecutor, that the Chief Justice of the highest court in New York once remarked that a prosecutor could get a Grand Jury to “indict a ham sandwich”. What Justice Wachtler did not mention is that there is a flip side of that coin. A motivated prosecutor could get a Grand Jury to refuse to indict nearly anyone. If the Grand Jury refuses to indict a defendant, the records are sealed so nobody knows what went on in the Grand Jury room to achieve that result.1

Unfortunately, there have been instances where a prosecutor who was under pressure to prosecute a celebrated crime took the case to a Grand Jury with ulterior motives. The prosecutor then presented it in a way that caused the Grand Jury to refuse to indict the defendant. In that case, the lack of prosecution was not the prosecutor’s fault. The effort to prosecute was made and thwarted by the Grand Jury’s action. The more political the situation, the more likely this is to happen, especially since the records are sealed. Makes you wonder about NYC, doesn’t it?

So far as Ferguson is concerned, the Missouri Attorney General has recently stated that the prosecutor who was working with the Grand Jury gave them a definition of lawful use of deadly force by a police officer that had been declared unconstitutional by the United States Supreme Court 30 years ago. Whether or not this officer’s use of deadly force was lawful was the whole issue the Grand Jury had to decide. The Supreme Court made such use more restrictive than the Grand Jury was told. One has to wonder what would have happened if the mistake had not been made.

1 At lease some of the Grand Jury records were released in Ferguson. That is very unusual, and in many places, quite illegal. Nearly all of these bodies are, and stay buried.

Dugan Barr has practiced law in Redding since 1967. He has tried more than 200 civil jury cases to verdict. He is married and has five children. The offices of Barr and Mudford, LLP, are at 1824 Court St. in Redding and can be reached at 243-8008.

Dugan Barr
Dugan Barr has practiced law in Redding since 1967, primarily in the areas of personal injury and wrongful death. He has tried more than 200 civil jury cases to verdict. He is married and has five children. He can be reached at Barr & Mudford, 1824 Court St., Redding, 243-8008, or dugan@ca-lawyer.com.
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11 Responses

  1. Avatar Peggy Elwood says:

    I thank you for this article…really useful in trying to understand how these Grand Jury decisions are made. A movement to discontinue their use in criminal matters but keeping the watchdog function on local gov seems warranted.

  2. Avatar Virginia says:

    Yes, the Grand Jurors were originally charged incorrectly on the law, yet before their decision was made, the error was corrected. Either way, with the victim’s DNA inside the police car, that is different than a totally innocent child.

    None of us were there at the time of the shooting incident, so Monday morning quarterbacking the Grand Jury is not always the best judgement any more than anything anyone may feel or believe happened within the Grand Jury room.

    Fergerson is differnt from NY in may ways, so they shouldn’t be confused, hopefully.

    A tragedy in all regards. But saying either was a race issue is way off base, plus burning, looting, chanting to kill cops is not the answer!

  3. Avatar david kerr says:

    This argument shows how out of touch the California Democratic party is with North state voters.

    Shasta county is one of the twelve counties where deaths exceed births.

    http://www.dof.ca.gov/research/demographic/reports/estimates/e-2/documents/July2014_packagew.pdf

    CA department of finance released this on 12/11

    “12 counties experienced natural decrease (more deaths than births during the year) Amador, Calaveras, Lake, Mariposa, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Trinity, and Tuolumne” from page 2

    Given the demographics of Shasta county, voters oppose resisting arrest and fighting with an officer over his handgun. California progressives making this argument will motivate Shasta county voters to defeat them.

    • Avatar CoachBob says:

      I’ve read your post twice and can’t figure out exactly what you’re talking about. I don’t get your connection between natural decreases and cops with guns. We’re a county with many elderly, and those who move here to retire and die. Seems “natural” that deaths would outnumber births. Hmmm, still trying to make a connection re your comments.

    • Dugan Barr Dugan Barr says:

      I have to say that when being off the point lines up for lunch, this will get the rare steak. I did not argue for or against any position, have no clue how the birth/death ratio has anything to do with Grand Juries and absolutely agree that people should not resist arrest or fight police over anything.

  4. Avatar Barbara Stone says:

    Interesting article, Dugan, and it gives me even more to think about and even more reason to be cynical about the justice system in our country.

  5. Avatar Joanne Lobeski-Snyder says:

    Thank you Dugan for this article. I hope to be on the Grand Jury in Shasta County, but I’m getting the feeling the logic and judicious deliberation isn’t enough for this job.

    • Avatar don cohen says:

      The Shasta County Grand Jury should not be confused with N.Y. or Ferguson. While it can indict in practice the D.A. has not asked it to do so in years. We have a very active Grand Jury Association which helps recruit and train volunteers. You can contact them for information. They will have recruitment meetings next year in May or June, If you prefer you may get my phone number from Doni and I would be happy to discuss it with you. Good luck I think your fears are unfounded.

    • Dugan Barr Dugan Barr says:

      This was NOT intended to reflect on our local Grand Juries. They have worked hard and done an admirable job. Rather, it is an attempt to explain the system in general. I do not believe that a Shasta County Grand Jury has been involved in a criminal case in a long, long time.