Two grand juries in recent weeks—one in New York and one in Missouri—declined to indict two police officers in the deaths of two men, raising questions and public outcry about why grand juries rarely charge police officers with crimes. (Christian Science Monitor)
Teachers, scroll down for a short list of key resources in our Teachers’ Toolkit.
- Read through our short encyclopedic entry on “jury” and the Christian Science Monitor Q&A on grand juries. What is a grand jury?
- A grand jury is a randomly selected group of citizens who decides if the government (prosecutor) has enough “probable cause” to proceed with a trial. “Probable cause,” says Supreme Court Justice Elena Kagan, “is not a high bar: It requires only the ‘kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.'” In other words, it’s evidence enough that a reasonable person might be convinced that the defendant committed the crime.
- What are some ways that a grand jury is different than a trial jury?
- Grand juries do not decide “guilty” or “not guilty,” just if there should be a trial at all.
- Grand juries typically do not hear from the defense or a judge. The prosecution is the only one that presents evidence.
- Grand juries typically hear from far fewer witnesses than trial juries. (There was an exception to this in the Michael Brown and Eric Garner cases, when the grand juries were made aware of “nearly all the evidence,” according to the CSM.)
- Both our encyclopedia and the CSM article say that “about half” of U.S. states use grand juries for state cases. Does your state use grand juries?
- Check your state’s “Judicial Branch” to see if some type of “grand jury” may be part of jury duty.
- If a state does not use a grand jury, how do they determine if a case is strong enough to go to trial?
- According to FindLaw, many courts use preliminary hearings instead of grand juries. Unlike grand juries, preliminary hearings are open to the public (transparent), involve both prosecuting and defense attorneys, and are decided by a judge. They’re a “trial trial run.” Like grand juries, the judge in a preliminary hearing will not decide if the defendant is guilty or not guilty, but whether the government has produced enough evidence to proceed in a trial.
- In 1985, former New York Judge Sol Wachtler said “district attorneys [prosecutors] now have so much influence on grand juries that ‘by and large’ they could get them to indict a ham sandwich.” Why do grand juries have this reputation?
- They almost always indict—decide that there is enough evidence to proceed with a trial. According to the Bureau of Justice Statistics, federal attorneys brought 162,000 cases before federal grand juries in 2010. Only 11 did not result in an indictment.
- A grand jury’s threshold of evidence is much, much lower than a trial jury’s. They do not consider reasonable doubt, just probable cause.
- A grand jury usually only hears from the prosecutor, limiting rigorous cross-examination, evidence, and testimony that may support the defendant.
- If grand juries indict so often, why do they so rarely indict police officers?
- Police officers have what is sometimes called “qualified immunity,” which protects public officials from being held liable when they are “reasonably” performing their duties. A police officer is allowed to use deadly force in many more circumstances than a regular citizen, something the grand jury is instructed on.
- Grand juries are largely run by prosecutors, and, according to the CSM, “prosecutors and police officers mostly work hand in hand in the nation’s criminal-justice system.” Critics suggest that this close working relationship makes it difficult for prosecutors to have an incentive to aggressively pursue indictments against police.
- Have there been any suggestions for grand jury reform?
- Of course.
- Some people think the United States should eliminate the grand jury system entirely, and move to using preliminary hearings or a similar pre-trial system.
- The National Association of Criminal Defense Lawyers has called for a Federal Grand Jury “Bill of Rights,” which include (1) the right to counsel for grand jury witnesses who are not receiving immunity; (2) an obligation to present evidence which may exonerate the target [defendant] or subject of the offense; and (3) the right for targets or subjects to testify.
- Some people think the relationship between prosecutors and police officers creates a conflict of interest in cases where police officers are charged with a crime such as murder. The CSM mentions that Wisconsin Gov. Scott Walker “signed the nation’s first law requiring a team of at least two investigators from an outside agency to lead reviews of such deaths and a public report to be released if criminal charges are not filed.”
- Of course.
Christian Science Monitor: Eric Garner case 101: Why grand juries rarely indict police officers
Nat Geo: What is a jury?
National Center for State Courts: State Court Web sites
FindLaw: How Does a Grand Jury Work?
The Economist: How a grand jury works
Superior Court of California, Placer County: The Placer County Grand Jury (This is a great general introduction to what a specific grand jury does.)
FindLaw: Preliminary Hearing