Grand Jury Basics, as Ferguson Waits for a Decision

by Crane-Station/cross posted at Firedoglake


In the United States, a person cannot be prosecuted for a felony unless there is probable cause to believe that a person has committed a felony. Pursuant to the Fifth Amendment, all federal felony prosecutions must be by grand jury indictment, unless the defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information.

This means federal prosecutors present their cases to a grand jury together with the indictment and ask the grand jury to review and approve the indictment. However, this requirement is not binding on the states. The states have the option to either file by information in order to charge someone with a felony, or a prosecutor can go to a grand jury to get the indictment. Missouri is one of these states. The key legal matter is that there has to be probable cause to believe that a crime occurred, and someone other than the prosecutor- either a judge or a grand jury- has to decide.

The interesting issue in this case is why the prosecutor decided to go to the grand jury, as opposed to charging Darren Wilson by information. The likely reason that the prosecutor did not file by information is that it would have potentially been a job killer. If he charged Wilson with murder, the police would have turned against him, but the citizens of Ferguson and their supporters would have and were turning against him because he did not. To extricate himself from the dilemma, he took the case to the grand jury. That said, here are some of the characteristics of the grand jury:

Who is in a grand jury room?
-There are 12 members in the Ferguson grand jury. These twelve members were summoned in by the clerk of the court.
-They serve a term, where maybe they meet once a week, but they don’t meet every day.
-They choose a foreperson.
– Only the members of the grand jury, the court reporter and a prosecutor are allowed in the room, along with the witness, which is usually the arresting officer.
-Sometimes they bring other witnesses. All witnesses testify under oath.
-No judge is present in the grand jury room.
-No defense attorney is present in the room.
-The grand jurors are sworn to secrecy.

Are they sequestered? Is there a selection process, ie, voir dire?
-It would be impractical to sequester a grand jury because of the length of the term they serve, so they come and go during their term of service. This may be once a week or even once a month. Grand jurors are not sequestered.
-There is no voir dire with grand jury selection, so grand jurors do not have to disclose their opinions about various issues.
-There is no one to strike a grand juror from the panel, so grand jurors are not “stricken for cause.”

What is a true bill and what is a no bill?
-The grand jury can issue a “true bill,” which is an indictment. The defendant then pleads guilty or not guilty.
-The grand jury can issue a “no true bill”, which means the grand jury did not find enough evidence to establish probable cause, to move the case forward for prosecution.
-The grand juries sometimes write reports about what they have investigated, for instance, systematic problems in the justice system.
-It takes nine votes to indict in Missouri; the vote does not have to be unanimous, for a true bill.
-The foreperson of the grand jury signs and returns, or hands down the indictment, which is filed in the Court Clerk’s Office. Grand juries rarely ever refuse to indict.

What are the possibilities for charges that Officer Wilson could face in Ferguson?
-First-degree murder for the killing of Michael Brown.
-Second-degree murder.
-Voluntary manslaughter.
-Involuntary manslaughter.
-No charges.

Do grand jurors decide if someone is guilty of committing a crime?
-No. Unlike trial jurors, the grand jury decides whether there is probable cause that a crime was committed. They do not to decide guilt.
-The rules of evidence do not apply and hearsay is admissible. That means that prosecutors can ask leading questions.
-Grand jurors are not to disclose evidence that they hear, and there is a penalty if they do.

It is notable that Darren Wilson, who is the target of the investigation, testified before this grand jury without invoking his constitutional right to remain silent, and without any agreement that involved immunity from prosecution in exchange for his testimony. A person would have to be insane to testify in this situation, and no lawyer would advise someone to do that, unless he had assurances from that prosecutor, that the prosecutor was on his side. That is the fly in this ointment- that Darren Wilson testified before the grand jury rather than invoking his constitutional right to remain silent.

It doesn’t take a weatherman to figure out which way the wind is blowing.

What journalists covering Ferguson need to know about grand juries

8 Responses to Grand Jury Basics, as Ferguson Waits for a Decision

  1. bettykath says:

    Interesting. WP wouldn’t let me use the common 3 letters for the organization.

  2. bettykath says:

    Nixon KNOWS there will be violence. I’m sure he knows that the Knights are active and intend to involve themselves in the protests with violence.

  3. Malisha says:

    What bothers me most about this whole thing right now is the nerve of Nixon and the other officials suddenly decorating themselves for wonderful achievements in “healing” — such as speechifying about fixing what’s been going badly in their communities (FIX it by outlawing murder, not by stringing a bunch of lying words together) and appointing “commissions” to study things and “report.” You don’t need a report. Want to know what’s wrong with your community?


    That’s the truth. No Commission is going to admit it. No self-aggrandizing lying white supremacist corrupt public official is going to change it.


  4. Motor City Lady says:

    Given that the jury has not been sequestered, they’ve been exposed to all the news, information and commentary about the case over the past three months. Surely they realize the volatile situation in Ferguson as their decision looms. Do you think it’s remotely possible they might indict, simply to put the thing back in the DA’s jurisdiction, let the prosecutors deal with it, and avoid being blamed for any violence that might occur if they were to hand down a no-bill?

    I’m grasping at straws, still hoping the empaneled included at least nine rational people. Short of rational, I’m hoping at least nine prefer to cover their own asses, Wilson be damned.

    • Malisha says:

      I think jurors and grand jurors realize, at this point, that doing what the most powerful parties involved want them to do will not be dangerous. And nobody is really afraid of the “New Black Panthers” or of the African American community in general. And nobody expects a REAL riot; they expect a show put on by the police to get folks worked up. They know that if there are deaths from civil disobedience, they will be deaths of protesters who will then be criminalized. Jurors will not be hunted down and shot.

      • Motor City Lady says:

        I don’t mean to imply the grand jurors might feel personally threatened by individuals or groups. I meant to say that they might want to pass the buck. In other words, let the prosecutor take the heat of public opinion.

        For instance, the GJ could hand down an indictment, and the prosecutor could overcharge (e.g. 1st degree murder.) On the face of it, that’s exactly what the Michael Brown supporters want. But it is not outside the realm of possibility that a charge of first degree would *not* result in a conviction.

        So the justice system would be applauded, yet the outcome would still be “No justice for Mike.”

        See what I’m getting at?

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