What is a Grand Jury?

What is a Grand Jury?

Since former Ferguson police officer Darren Wilson was not indicted in the death of 18 year old Michael Brown in Ferguson, MO on November 25, 2014, the GRAND JURY process in the United States has received publicity.  What is a grand jury?  Why wasn’t Darren Wilson prosecuted?  These are two of the most frequently asked questions.

The GRAND JURY has been with the English and subsequent American system of jurisprudence since before the Magna Carta in England, or since the 12th century.  In the United States, we refer to procedures and laws that are traced back to the British system of jurisprudence as “the common law”.  The “grand jury” is also referred to in the constitutions of most states.  There is also a federal grand jury.

A “grand jury” is traditionally larger than a trial jury, also known as a “petit jury”.  In California, in counties with populations less than 20,000, a grand jury is 11 members.  In counties with a population of over 4,000,000, a grand jury is 23 people.  In all other counties, including Santa Clara County, it has 19 members.  Note the consistently “odd” numbers.  The verdict of a 12 person criminal trial jury must be unanimous to convict.  Even if the result is 11-1, there is no verdict.  In a grand jury proceeding, the verdict or “true bill” need not be unanimous. If the number of jurors is “odd”, there can be no even split.

A judge does not take part in the grand jury proceeding.  The prosecutor calls witnesses and the grand jury listens to their testimony.  A bailiff keeps the peace.  The prosecutor then informs the grand jury of the “applicable law”(that is the series of laws the prosecutor thinks was broken), and the grand jury confers and either renders a “true bill” or “indicts” or it does not.  The decision need not be unanimous.  The grand jury proceeding takes place in secret, as opposed to jury trials which must be open to the public.

The grand jury has the power to call their own witnesses and to ask their own questions if the prosecutor does not bring all the pertinent information to court.  The grand jury can issue their own subpoenas.

In California, many officer-involved shootings are traditionally sent to a grand jury to indict or not indict the officer.   Most recently Oscar Grant, a young African-American man was killed by a BART transit police officer, Johannes Mehserle in 2009.  The Alameda County District Attorney’s Office filed a complaint charging Mehserle with murder, electing not to proceed by grand jury.  At the trial, the jury found the officer  guilty of involuntary manslaughter for mistaking his handgun for his taser on his duty belt, and killing the man in the course of making an arrest.  Riots were touched off after the jury verdict.

Police officers who kill a person during an arrest do not have a constitutional right to a grand jury to decide whether or not to bring charges. They have the same rights as any other citizen. Criminal charges in California can and usually are brought by complaint and preliminary hearing.  A complaint is simply a pleading prepared by the prosecutor alleging crimes.  The case then generally proceeds to a preliminary hearing, where witnesses are questioned in public by both the prosecutor and the defense attorney and the defendant is present in court.  A judge presides and decides whether there is enough evidence for the case to proceed to trial.

If a prosecutor elects to use a grand jury, he can cut off the right of the defendant to be present in court, the right for the proceedings to take place in public and the right to questioning of the witnesses by the defense.  These are all substantial rights.  Generally, a prosecutor lays out his case for the grand jury at the beginning and the conclusion of the proceeding.  He spells out the charges he thinks he has proved to the grand jury and most of the time, they follow the prosecution’s case and return the indictment he has requested.  This is all without judicial oversight.

“The grand jury will indict a ham sandwich if that is what you want”.  This phrase was used by author Tom Wolfe in a 1987 book, “The Bonfire of the Vanities” regarding a trial but the comment is likely much older.  It refers to the common practice of a grand jury indicting whomever the prosecutor, unrestrained by a judge or a defense attorney asks it to indict.

In criminal court, there are subsequent motions available to set aside the indictment in the event there was insufficient evidence, common rules of evidence were not followed, or the grand jury was not presented with evidence that is favorable to the defendant.  If the grand jury fails to indict, however, there is no oversight.

Since no “true bill” was returned in Ferguson, it is not known if the grand jury was unanimous or not in its decision or what the vote was. The prosecutor did indicate that he did not argue the case to indict or not.  He only gave the grand jury the law on the available types of homicide from murder to involuntary manslaughter.