The recent decisions by grand juries not to indict police officers who were responsible for the deaths of individuals who may not have been threats to the officers have led to large scale protests in many communities across the country. The chocking death by a police officer of one individual has even been protested by professional athletes who have worn “I Can’t Breath” t-shirts and warm-up uniforms.
Reactions to those protests by some have been unsympathetic, as if to suggest that any grand jury that refuses to indict has made a definitive judgment about the case. In fact, grand juries have never been regarded as ultimate arbiters of guilt or innocence. Simply stated, that is not the role of a grand jury.
The fact that little is understood about grand juries is probably most attributable to the secrecy that surrounds their activity. Most grand jury proceedings are closed to the public and transcripts of the hearings are sealed. Testimony heard by a grand jury heard may not be revealed, unless a specific witness chooses to report what he or she said.
So, what really happens in a grand jury hearing? How is evidence presented? What is the purpose of the hearing? What is the judgment the grand jury must make?
On the assumption that most Americans, including those protesting the recent decisions and those opposing those protests, don’t really know the answers to those questions, here’s a little primer on grand juries.
The first thing that needs to be understood about grand juries is that they do not decide guilt or innocence. They only decide whether there is enough evidence to raise an issue of guilt. And they make those decisions in a very one-sided hearing in which the only evidence presented is that brought forth by the prosecuting attorney. This individual is the district attorney or attorney general for the community (city, county, state or federal district) that has jurisdiction over the crime the grand jury is considering. He or she essentially presides over the hearing, calling the witnesses, asking the questions, presenting the arguments from the testimony and otherwise conducting the hearing. There is no judge present in a grand jury hearing. There is no defense attorney representing the accused. There is just the DA, the members of the grand jury (23 in most instances), and whatever witnesses have been called to testify.
What should be understood from the foregoing is that a grand jury hearing, unlike a trial court proceeding, is not adversarial. That is, there is only one side represented in a grand jury, and that side is the prosecution. That single attorney determines what evidence should be presented, what questions should be asked of witnesses, and, in effect, what view of the case the grand jurors should have.
Grand juries, then, simply stated, are tools of the prosecutor, which is why the statement is sometimes made that a grand jury would indict a ham sandwich if the DA wanted it to.
This isn’t to say, however, that grand jurors are rubber stamps, not in the strictest sense. The better way to describe the role of a grand jury would be to say that it serves to check the judgment of a prosecutor on a close case. (Another perspective would be that a grand jury provides cover to a prosecutor on a politically charged case. The two roles are not incompatible.)
What a grand jury must decide is whether to indict a specific individual for a crime. And the standard that applies in that decision is not guilt beyond a reasonable doubt, which is the toughest standard to prove (providing the most protection for the defendant). Instead the standard a grand jury must satisfy is the probable cause standard, which asks, essentially, whether it is more probable than not, based on the evidence presented, that a specific individual committed a specific crime. That standard is obviously a much easier one to satisfy (against the defendant), especially since the jury only hears one side of the case, there being no cross-examination of witnesses and no opposing witnesses offered by the defense.
So with this understanding of how grand juries work and what their job is, how can the non-indictments in the police homicide cases be understood? Presumably, the DA in those cases presented all the evidence that existed that might have indicated criminal conduct by the police officers in the deaths of the individuals. The prosecutors would then explain the legal requirements to take the case to trial (to indict the defendants) and ask the jurors to vote for or against indictment based on the “more probable than not” standard.
And when those grand jurors voted not to indict they were saying that a prosecution was not warranted based on the evidence that was presented to them by the DA, i.e., the evidence did not establish that “more probably than not” a crime had been committed.
Now, a couple of additional caveats need to be understood before we finish. First, grand jurors can be wrong, just like juries can be wrong. Second, all prosecuting attorneys aren’t created equal. Some are better than others at presenting evidence and arguing the significance of that evidence. And, more importantly, some might be more inclined to think a crime has been committed than others, thus presenting the evidence in a light more favorable to their specific perspective. And finally, since no one but the DA and the grand jurors ever know what evidence was presented (and in what light), no one can ever know whether a grand jury erred or whether a DA unjustly slanted the evidence.
None of the foregoing is intended to say who is right regarding the protests against the recent grand jury decisions. What I am saying is that, because of the very nature of a grand jury hearing, it is much easier to understand a grand jury decision to indict than it is to understand a grand jury decision not to indict.
In the end, justice is elusive, and it inevitably rests in the eye of the beholder.