In the aftermath of the Michael Brown shooting in Ferguson, Missouri, a grand jury will be convened. What, though, does that mean? What discrete and special functions does a grand jury serve?
Grand juries are, in essence, investigative bodies. There are both federal grand juries and state grand juries, which deal exclusively with matters of state concerns and jurisdiction. The office of a grand jury, whether state or federal, is involved with the investigation into possible wrongdoing by the accused (in the Michael Brown case, the possible wrongdoing of the cop who shot him). The key word here is “possible.” Grand jury investigations are not trials. No conviction may directly result from a grand jury’s deliberations. Rather, the grand jury conducts a thorough inquiry into the possible wrongdoing by an individual which, if found to be substantive, may result in criminal indictment against the accused which, in turn, will likely lead to a trial on the merits of the indictment.
An “indictment,” by the way, is an accusation, in writing, from the grand jury to the court, charging that the person named has performed some act, or has been guilty of some omission, which, by law, is a punishable public offense. The indictment, then, is a formal written accusation issued by the grand jury against a party charged with a crime. An indictment is also referred to as a “true bill,” as opposed to a “no bill,” in which instance the grand jury has failed to find substantiation for the allegations and, accordingly, has determined not to indict. Thus, an indictment is a “charge” against a person accused of wrongdoing which must be proven beyond a reasonable doubt at a subsequent trial before the person may be convicted.
PART OF THE PROCESS
The grand jury may be thought of as part of a process. It is convened to ferret out information which, if found to be true, results in an indictment. The indicted person is then charged with a crime and subsequently tried. At trial, the charges must then be proven to be true in order for the person to be convicted of the crime or crimes alleged against him or her. It is key to note that a grand jury’s indictment is not proof of any kind that the alleged offense has been committed. It is simply a statement that, after investigation, sufficient grounds have been established in the grand jury’s mind to subject the person to trial for the alleged offense. At trial, the jury may not consider the indictment as evidence against the accused.
An indictment is different than an “information.” An information is an accusation exhibited against a person for an alleged criminal offense which is brought by a public official, such as a district attorney, under oath, instead of being brought by the grand jury. An information, like an indictment, is a written accusation, but it is made by a public prosecutor (on behalf of “the people”), without the intervention of a grand jury. Both processes — that of an indictment by the grand jury and an information by the public prosecutor — are permissible.
In most states, an information may be used in place of a grand jury to bring a person to trial, the grand jury being reserved for complex or unusual situations which may be amenable to the often more thorough-going investigation which a grand jury may bring to bear. A good example of employing a grand jury to exhaustively investigate an unusual or complex matter was the Jon Benet Ramsey murder investigation in Boulder which stalemated the Boulder prosecutors for more than a year before the grand jury was convened. Similarly, in the high profile Michael Brown case, use of a grand jury is apt.
A grand jury is called a “grand” jury because it is comprised of a greater number of jurors than the ordinary trial jury or “petit” jury (“petit” being the French word for small). It is a body of ordinary citizens, the number of whom varies from state to state, whose duty consists of determining whether probable cause exists that a crime has been committed.
As intimated before, the grand jury does not determine innocence or guilt; it is an “accusatory” body only. By custom, the members of a grand jury usually serve for a fixed term (often one year) and are summoned by the sheriff to each session of the criminal courts. A federal grand jury, impaneled before any district court, consists of no less than 16, nor more than 23 persons. State grand juries often vary between 12 and 23 persons.
RULES OF EVIDENCE
Evidence before the grand jury is presented by a public prosecutor who is not subject to the same rules of evidence which would be incumbent upon him at trial. Since the grand jury may only accuse and not find guilt, the prosecutor has substantially more latitude to “go after” the accused and far fewer protections are afforded the accused. It is also the case that usually only one side of the “story” is heard.
By tradition (if not always scrupulously followed), the proceedings of the grand jury are strictly confidential and the grand jurors are sworn to an oath of absolute secrecy. In some states, such as Colorado, disclosure of the proceedings of the grand juror is contemptible conduct and is, accordingly, punishable by the court. Similarly, even an attempt by the press to reach a grand juror about the matters under grand jury consideration is punishable by contempt processing against the person seeking out the juror. What’s more, the oath of secrecy persists forever; the grand juror may not ever disclose the matters under deliberation. The hope and design of such absolute secrecy is that in ensuring secrecy, others who may later come before this or any other grand jury, will speak candidly about the matters to which they may have knowledge.
Grand juries are an expression of democracy on the front lines, and their employment and discretion helps ensure that justice will be fairly and impartially served. Let’s hope for the sake of calm in the Midwest that it discharges its duty admirably.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.
Grand juries are an expression of democracy on the front lines, and their employment and discretion helps ensure that justice will be fairly and impartially served.