The Grand Jury Process in the US: Does it Work?

Michael Brown, an unarmed teenager, was shot and killed on Aug. 9, 2014, by Darren Wilson, a police officer, in Ferguson, a suburb of St. Louis, Missouri. On Nov. 24, the St. Louis County prosecutor announced that a grand jury had decided not to indict Mr. Wilson.

On July 17, 2014, Eric Garner, 43, was stopped on a street in New York on suspicion of selling loose, untaxed cigarettes. After a confrontation, police officer Daniel Pantaleo placed his arm round Mr. Garner’s neck and wrestled him to the ground. Mr. Garner became unresponsive and later died. A grand jury also declined to indict officer Pantaleo.

Many people around the world are scratching their heads, wondering how is it possible that two men died at the hands of police officers and the officers have not been charged with any wrongdoing. These concerns and questions are accentuated by the inescapable reality that in each of these cases the officers are white and the dead men black. How come these two different grand juries, in different parts of the country, failed to charge the officers to ensure a proper trial and a full airing of the facts surrounding the deaths? Many have asked: what is a grand jury, anyway?

The grand jury plays an important role in the American criminal system. Its role does not involve a finding of guilt or innocence of a party; instead, a prosecutor works with a grand jury to decide whether to bring criminal charges or an indictment against a potential defendant. Grand jury members may be called for jury duty for months at a time, but need only appear in court for a few days out of every month. During that time, they listen to testimony and review evidence presented by the prosecutor. Finally, they decide if charges should be filed against the potential defendant. A grand jury is in some ways similar to a trial jury because it is made up of civilians called for duty by the justice system. However, while regular trial juries are usually made up of 6 or 12 people, a grand jury is composed of somewhere between 6 to 23 people depending on the state.

The grand jury that weighed whether to charge the officer involved in the death of Eric Garner heard from 50 witnesses and saw dozens of exhibits, including four videos, before declining to indict. The grand jurors in the Ferguson case heard 70 hours of testimony from roughly 60 witnesses, and they confronted a number of forensics reports, police radio logs, medical documents and tapes of FBI interviews with bystanders. In both cases, after reviewing all of the evidence presented by the prosecutor, and having been instructed on the law applicable to the case, the grand jurors declined to indict.

Under the civil law system, found in 60% of the world, including Europe and Latin America, a judge makes the decision of filing charges against a defendant after he or she has taken testimony from police officers, victims, the accused and other witnesses, and has seen the available evidence relevant to the case. It is unlikely, that under the civil system, and given the controversial racial issues surrounding the two cases, officers Wilson and Pantaleo would not have been indicted. Even if after the trial they had been found not guilty, there would have been a trial. This is largely due to the inquisitorial nature of the proceeding where if the judge finds any evidence of guilt the charge is sustained and the case moves forward to the trial phase. The prosecutor has little or no role in that determination.

There are many benefits to the grand jury system. Historically, its purpose was to protect citizens from unfounded accusations whether from the government, partisan passions, or personal enmity. The grand jury is seen as affording protection to the individual from arbitrary and unjustified prosecution launched solely by one biased official, the prosecutor. Additionally, the grand jury can act as an investigating agency, having the power to subpoena records, documents, and witnesses. Issues such as organized crime, public corruption, or other areas where prosecutors might be unwilling to look can be investigated and brought to trial. In 1933 a Cleveland grand jury exposed a corrupt police and prosecution system; and between 1937 and 1938, a Philadelphia grand jury was responsible for the ultimate correction of widespread police misconduct. The grand jury also helps prosecutors by allowing them to test their case before they present it to a trial jury.

However, in recent times, the grand jury system has faced a great deal of criticism. For one thing, grand juries are inefficient. Grand jurors are not trained in the law, therefore, the average grand juror is unable to direct questions to genuine relevancies or to form a definite judgment as to the evidence presented. Most of the time, the grand jury merely acts as a rubber stamp for the prosecutor, hearing only the witnesses selected by him/her, and assuming that the mere making of an accusation justifies prosecution. Likewise, if the prosecutor presents the evidence, or if the judge explains the law, in a way that benefits the potential defendant (as if appears to have occurred in the Ferguson case), there would be no indictment. Overall, the effectiveness of the grand jury system seems to be in question.

The grand jury is not the only way to indict in the United States. Prosecutors in some states can charge a potential defendant by information, an indictment prepared by the prosecutor based on police testimony and reports, as well as other evidence pertinent to the case. Although some states by statute or their constitution provide that criminal proceedings shall be only on grand jury indictment, others have the two systems as alternatives regardless of the crime charged. In between are a number of states neither wholly allowing nor disallowing the information, but permitting its use in a variety of circumstances. It is interesting to note that when information has been adopted as a process to charge a potential defendant, no state has later abandoned or rejected it. To the contrary, it has almost completely supplanted indictment by a grand jury. In states where changing a defendant is permitted by way of information or by grand jury indictment, some argue prosecutors choose to utilize a grand jury when they want to evade the responsibility of charging a controversial figure, like in the case of politicians, police officers, etc.

It is clear that a large number of people believe that the grand juries in both the Ferguson and Garner case erred by not charging the officers, and therefore, not allowing the case to be presented to a jury to determine whether their actions were warranted. However, the more important issue is whether the grand jury system works. It might be that grand juries had an important purpose once, but have become obsolete and are now more detrimental than beneficial to the fairness of the criminal system in the US.



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