The Grand Jury
Thirty years ago, the chief judge of New York state coined an immortal cliche. A grand jury, Sol Wachtler said, would “indict a ham sandwich” if that’s what a prosecutor wanted. The sentiment was widely recycled in 2014 after grand juries in Missouri and New York cleared police officers who had killed unarmed black men, raising questions whether prosecutors — who work daily with police — had engineered the reverse result. In legal circles, another question presented itself: Why have grand juries at all? Grand juries are temporary panels of lay people empowered to bring criminal charges in secret proceedings against fellow citizens. They’re a vestige of medieval England. The U.S. is virtually the only country that still uses them.
On Nov. 24, 2014, a grand jury in Ferguson, Missouri, voted not to charge Officer Darren Wilson with a crime after he shot and killed a black teenager named Michael Brown that August. Brown was either holding up his hands in surrender or charging Wilson; witnesses gave conflicting accounts. Nine days later, a grand jury in Staten Island, New York, didn’t charge Officer Daniel Pantaleo in the chokehold death of Eric Garner. Stopped for selling untaxed cigarettes, Garner was captured on video saying, “I can’t breathe” before he died. The decisions set off riots and protests and questions about the integrity of the grand jury system, particularly in charging cops. In 2015, New York Governor Andrew Cuomo ordered the state attorney general to handle all cases in which police kill civilians, while California made it illegal to use a grand jury in those type of cases.
The U.S. grand jury system originated in 12th-century England. King Henry II ordered noblemen to convene in their local shires and draw up lists of criminal suspects to be tried. The noble informants were under pressure to produce and the grand juries were seen as oppressive. Later, the system was praised as a civilian protection against malicious prosecution. The 13 American colonies imported grand juries and later enshrined them in the U.S. Constitution, which mandates their use in the federal criminal justice system to this day. Other countries that used them — most linked to the British Commonwealth — began scrapping them. England got rid of grand juries in 1933. Scotland ended them in 1945. They died out in Canada, Australia and New Zealand. Half of U.S. state courts — including Missouri and New York — give prosecutors the option of using a grand jury to bring charges or of doing it themselves, with the legitimacy of the charge usually vetted by a judge. Unlike the secret grand jury proceedings, judicial vetting is public and allows both sides to present evidence. Twenty-three states require grand juries for certain serious crimes. Two states — Pennsylvania and Connecticut — no longer use them to make criminal charges. Grand juries typically hear only the prosecution’s evidence. They aren’t subject to the rules that apply in court: Prosecutors can use illegally obtained evidence or hearsay testimony. Data from federal courts suggest that grand juries indict in 99 percent of cases.
The value of grand juries has been debated for decades. Critics call them outdated, opaque and little more than a cover for prosecutors. Proposals for change include putting decisions about charging police officers under a separate authority; giving grand jurors legal advisers independent of prosecutors; using judges to make charging decisions, as happens in many countries where the judicial system is based on French civil code; or using a system like Germany’s in which prosecutors are unelected civil servants. Supporters say grand juries give citizens first-hand experience with the criminal justice system and can check overzealous prosecutors. Grand juries can also provide a political buffer in cases where the public is demanding action and the prosecutor thinks the evidence is weak.
The Reference Shelf
- Bloomberg News followed the protests that followed a Staten Island grand jury decision not to indict a police officer in the killing of Eric Garner.
- The University of Dayton law school compiles a repository of facts about federal and state grand juries in the U.S.
- Cornell University Law School guide to the workings of federal grand juries in the U.S.
- A 1938 article on the demise of the English grand jury system is here.
First published Jan. 9, 2015
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