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.