Friday, December 5, 2014

With news of the recent failures-to-indict in Ferguson and Staten Island, some people have been wondering how grand juries fit into United States criminal procedure. I couldn’t find a handy FAQ to link to, so here’s mine.

Warning: I am not a lawyer; I am not a law student; I’m not even well-schooled in television legal dramas. My only qualifications to comment are (a) having spent lamentably many hours in a law library reading and (b) being a huge nerd.

What is a grand jury?

In the United States we have two kinds of juries: grand juries and trial juries. Grand juries hear evidence from the prosecution, then decide whether or not it’s worth spending time and money to bring the defendant to trial. Grand juries don’t determine whether a defendant is guilty or not guilty, but only whether or not to bring charges against him.

Why did a grand jury decide these cases, instead of a trial jury?

Going through a grand jury is a preliminary step that happens before a case goes to trial. In criminal procedure, every case passes through a series of steps: from the initial identification of a suspect to the ultimate sentencing and punishment of a convicted criminal. At each stage, some people are screened out, and their cases are dropped.

If the grand jury does indict, the case then goes to arraignment, where the defendant is informed of the charges and can plead guilty or not guilty. (Most criminal cases end here, with the defendant taking a plea bargain: he pleads guilty in return for more favorable sentencing or reduced charges.) If the defendant pleads not guilty, the case proceeds through the defense’s procedural motions, if any, and finally to a jury or bench trial for determination of guilt.

Why do we screen criminal cases before going to trial?

Two of the stated goals of the criminal justice system are (1) efficiency and (2) the presumption of innocence. The rationale for screening goes:

(1) Because the system has limited resources, it should screen out whichever accused persons it believes cannot be convicted of a crime. Everyone else should be passed through the process expeditiously.

(2) Given limited resources and human flaws, the system will make mistakes. If mistakes are going to be made, they should go in the direction of making sure innocent persons are not convicted (which necessarily means some guilty persons will be set free).

Are all cases screened by a grand jury?

No. All federal felony cases go through a grand jury before trial, but many states use a preliminary hearing in front of a judge instead.

Why are grand juries “grand”? Is it because their rulings are superior to other juries’ decisions?

No — the name was given because grand juries are generally larger in number of jurors. (Grand means large in French; contrast with a petit (small), or trial, jury).

But the grand jury in Ferguson was fairly small, wasn’t it?

Yes – only twelve jurors. Federal courts always use grand juries of 16–23 citizens, but different states have differing requirements for state grand jury sizes, ranging from 5–23.

What usually happens in grand jury proceedings?

In a grand jury review, only the prosecution presents evidence; the defense is not allowed to participate. No judge is present. Since the prosecutor is the only one controlling the proceedings, a grand jury usually hears only evidence implicating the defendant. Accordingly, grand juries almost always decide to indict.

(This is not what happened in the Darren Wilson or Daniel Pantaleo cases — in both cases the prosecutors presented evidence from the defense’s side.)

Where are the rules governing the criminal justice system defined?

As with other areas of law, criminal procedure is defined by a motley of constitutional law, legal codes, and culture.

Both federal and state courts are required to adhere to the U.S. Constitution; most relevant are Article III Section 2 and the Fourth, Fifth, and Fourteenth Amendments. Some individual states’ constitutions also address criminal procedure (usually to extend rights for defendants). Similarly, the Federal Rules of Criminal Procedure define the specifics for federal courts, while states use a mix of state codes, statutes, and past decisions to conduct their criminal procedures.

As we know, though, the culture of the justice system’s participants (police, prosecutors, defense attorneys, courts) makes up a large part of how criminal law is actually applied. The law tries to standardize the behavior of its agents, but often can’t.

Do other countries use grand juries to screen out cases?


I can see how the decisions in the Michael Brown and Eric Garner cases failed the victims’ families and communities. But how did these decisions fail criminal law itself?

We know that the criminal justice system—like all human institutions—is imperfect, and will introduce some injustice. Some innocent people will be imprisoned, and some guilty men will walk free; we accept incorrect rulings as the cost of living under any system. But the goal, always, is for the law to be fair: all we can hope for, and work towards, is a system that treats people in the same situation the same way. By treating the deaths of black men at the hands of white police officers differently from all the others, we’ve failed.