The deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York that fueled national protests in response to the actions of law enforcement and controversial decisions of grand juries, have generated discussions in classrooms throughout the country. The following information and lessons are provided to help facilitate a conversation with students about what grand juries are, when they are used, how grand jury proceedings play out, and what issues were raised by the Brown and Garner cases.
The Basics of Grand Juries
1. What is the role of a grand jury?
When most people think of juries, they think of trial juries. Grand juries simply are not used as often, and in some jurisdictions they have a very limited role. Nonetheless, they are important in the federal system and in some states, and we discuss them briefly here.
The grand jury came to America with a long history of protecting the innocent from unfounded charges. Grand juries often shielded the colonists from abuses at the hands of the Crown’s prosecutors, as when grand juries refused to charge the printer John Peter Zenger with crimes.
The role of the grand jurors is not to decide the question of guilt – that is determined at trial – but to determine during the investigative stage whether there is enough evidence to charge the accused with a crime. Historically, this enabled ordinary individuals, chosen as jurors, to determine whether a trial should take place. They functioned as another brake on the power of government.
Legal researchers are concerned that grand juries are less apt to be an independent brake today. Most of the time, the only lawyer they hear is the prosecutor. Without a defense lawyer present, they hear only one side of the case, and so are more likely to bring criminal charges.
2. How is a grand jury created?
Grand juries differ a good deal from state to state. They range from six to 23 jurors but generally are comprised of more than 12 persons, hence the name grand (“large” in French).
Grand juries are usually chosen from the same venire (pool of persons) as trial jurors, but being a grand juror is very different from being a trial juror.
• Grand jurors serve for a longer period of time than most trial jurors, often several months or even a year or more (most trial jurors sit only for the duration of the case);
• They may only meet a few times a week or a few times a month, unlike trial jurors, who are usually in court every work day while hearing a trial;
• Unlike trial jurors, they almost always hear more than one case, and usually hear many.
3. How does a grand jury work?
Grand juries can still bring criminal charges in the federal system and in almost all states, but their role is far different than in the past. In three-fourths of the states, the prosecutor has discretion on whether to use a grand jury. He or she can choose to use the grand jury to investigate a case or choose not to use the jury. If the prosecutor brings the case to a grand jury and the jury believes there is enough evidence to charge an individual with a crime, it will issue an indictment (a formal, written accusation of criminal charges). Or the prosecutor can bring charges without the grand jury by filing an information (a formal, written accusation signed by the prosecutor). Both indictments and informations are sufficient to begin criminal proceedings.
Unlike trials, grand jury proceedings are secret. In the federal system and in many states, the public, the news media, and the person being investigated have no right to be present. The secrecy of the proceedings is intended to encourage witnesses to speak freely without fear of retaliation, such as threats from someone who does not like their testimony. It also protects the persons being investigated in the event that the evidence is deemed insufficient and an indictment isn't issued.
4. What are some of the debated issues about grand juries?
Typically, the prosecutor closely guides the grand jury. The grand jury’s broad investigative power to compel witnesses to appear or submit documents and records helps prosecutors gather evidence. Today some legal observers fear that grand juries have become simply a tool of prosecutors and that grand jurors have lost their independence. Others believe grand juries still serve a valuable oversight function by bringing a community viewpoint to the charging decision.
In most jurisdictions, people called to testify before a grand jury are not allowed to have their lawyers present in the grand jury room. In fact, the lawyers for the persons under investigation rarely play any role in grand jury proceedings, meaning that the grand jury makes its findings without hearing both sides of the case. Nor is a judge usually present during grand jury sessions, since normal rules of evidence don’t apply. The prosecutor’s role is therefore central in these proceedings.
5. Are there reform efforts for grand jury proceedings?
Some. Several states have changed their laws to permit defense lawyers to accompany their client into the grand jury room and advise the client while giving testimony. Typically, the defense lawyer does address the grand jurors or make objections. Congress has declined proposals to enact these types of changes in federal proceedings.
6. What review is available for grand jury decisions?
Very limited. Grand juries have wide discretion. The U.S. Supreme Court has typically declined to review prosecutors’ handling of grand juries. Proposals to force the government to observe constitutional safeguards (such as excluding illegally obtained evidence and requiring prosecutors to present evidence tending to show the accused’s innocence) are met with the response that the grand juries need room to operate and that the grand jury proceedings are not mini-trials – they are only intended to determine whether there is cause to charge the accused, who will have the right to defend himself/herself at trial, where a judge will preside and constitutional protections will be available.