What is a Grand Jury and why is it so controversial?

It would be very disappointing to find that the jury principal was fatally flawed, not the sure defence of the rights of the individual against the over-mighty power of the State that we have always believed.

A Grand Jury seems (for us) a superb idea. Following a significant and contested incident a random selection of 23 (?) citizens is summoned to hear the evidence, debate it and decide on a course of action. Rather than stilling protest, in the US the Grand Jury seems to foment it.

So could I ask our US contributors to explain (and I apologise for using this forum for FAQs).

Is a Grand Jury (GJ) as I’ve described it above?

What is wrong with the process that makes its verdicts so un-acceptable?

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15 Responses

  1. Grand Juries do not have two competing presentations. The prosecutor only brings a case to a Grand Jury when he wants to go forward with a prosecution (or when community expectations are overwhelming). Grand Juries almost always decide according to the wishes of the prosecutor (District Attorney) who controls all of their information access. In federal cases the Grand Juries agree to prosecute 99% of the time. This is complicated by the fact that prosecutors work with the police constantly… on the same side… and when a police officer is the potential criminal there is a conflict of interest on the part of the prosecutor. In the case of the Staten Island Grand Jury, the prosecutor is an elected official from an overwhelmingly White and conservative area, who had all of the traditional electoral pressures to satisfy the biases of his constituents. This District Attorney is up for re-election in 2015. Since the Grand Jury process is secret, (no transcripts are available, etc.) it is not possible to know exactly how the prosecutor managed the Grand Jury.

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  2. How do we know an allotted lawmaking body won’t go the same way? How can we prevent it?

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  3. This is a crucial question. My proposal is that a separate allotted body be charged with hiring and overseeing the professional staff and procedures used for informing policy juries. Allegations of manipulation or bias by staff would be dealt with by a sort of trial and removal. Promotion among staff would be tied to clean records of impartiality, etc. I think the key is that the oversight body NOT be engaged in the particular policy matter at hand to avoid outcome-generated distortion (they happen to like the direction the staff are manipulating things). This is where Yoram and I part ways…. I don’t think a unified all-purpose allotted legislature is optimal (though I agree it wold probably be better than an elected one).

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  4. Selection of “representatives” by lot does not cure bigotry, stupidity or any other ill. In the absence of angels, you’re stuck with people.
    Grand juries are indeed “managed” and often bullied by the prosecutor. Recognizing this, John Conyers used to have a “Committee to Abolish Grand Jury Abuse”
    On the other hand, a grand jury was asked to give a verdict on healthcare and voted for universal healthcare. .

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  5. “My proposal is that a separate allotted body be charged with hiring and overseeing the professional staff and procedures used for informing policy juries.”

    It still seems like a catch-22. The body that does the reviewing will still need the same sort of administrative guidance. Who oversees the administrators who manage the hiring/firing body? Even if you had two such bodies in parallel it seems like it would be all too easy for the administrators to agree to avoid prosecuting each other.

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  6. Naomi,

    Ah…there’s the key to my scheme…When faced with a policy outcome it is easy and natural to want rules that favor the desired outcome. But when devising fair rules divorced from any specific policy outcome, people can more easily agree on what would be the best and fairest procedure. Using the classic cake division rule (I divide, you choose)…Note that we can agree on that as a good rule when there is no cake in front of us, but if I am both devising a rule AND dividing a cake, I might decide that the tallest person should get to choose (I being tall). Everybody wants FAIR rules when they can’t foresee how those rules will impact outcomes of unknown cases in the future, but favor biased rules that favor their preferred outcome when applied to a particular case right in front of them. Look at the see-saw partisan defense and attack on the filibuster rules depending on the issue at hand (the person leading the filibuster is a hero or anti-democratic obstructionist, depending on the policy preferences at play.)

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  7. I think I’m still missing something. Rulemaking is an intensely complex process and (unless I’m missing something) the members of the rules committee would have no institutional memory whatsoever. It seems like they would be even more easy to manipulate than a grand jury. How would the administrators not end up writing the rules that govern their own selection/review process? It seems like they would generally agree that it’s best to maximize their own role in lawmaking. What’s keeping the influence of the appointed staff members from spiraling out of control?

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  8. “Grand juries are indeed “managed” and often bullied by the prosecutor. ” says z13z13z

    Even so, we have some classic cases in the UK where the jury has refused to be bullied and returned a ‘perverse verdict’, ‘speaking truth to power’. (Ponting, Pat Pottle etc) Why can’t US juries do the same?

    Is there something about the Grand Jury selection process e.g. that it is drawn from wide area, not the town where the incident took place, which, in US terms makes it unrepresentative by not reflecting the racial composition of the town?

    If so, it is a reminder that the random drawing process must be done in public, its methodology challengeable, its numerical results published, otherwise it is completely untrustworthy. Very many lotteries fail this crucial test e.g. The Green Card Lottery, the ‘random’ selection process for English & Welsh juries.

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  9. A key piece of methodology we impose (and which is well received) is to pass control for expert selection to the jury. A prosecutor can line up friendly experts and witnesses… but by inverting that the jury acquires more power and more public trust. A jury asked “what do you need to know and who would you trust to inform you” will be less able to be steered or coerced by a single forceful personality.

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  10. Excellent idea, Iain Walker –

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  11. >A key piece of methodology we impose (and which is well received) is to pass control for expert selection to the jury.

    How does the jury know who the experts are? The key difference between the trial jury and the grand jury (apart from publicity) is that in the former both parties (prosecution and defence) get to choose their own expert witnesses, the jury then decides which ones are most convincing. That worked for 4th century lawmakers, it works (most of the time) for trial juries, so why do we want to fix something that isn’t broken?

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  12. Naomi,
    The staff supporting the rules-making body would be distinct from the staff that advises the policy-making bodies. They would not be enhancing THEIR power by transferring more power to that other staff. Also, any outside observer who feels some staff are unfairly manipulating the allotted rule writing body could challenge that staffers performance and neutrality and have a retention “trial.” When a staff has the duty to help an allotted body devise rules that will assure a different staff behave fairly, I think they will be true to their mission, with no reason not to.

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  13. Naomi,

    You wrote,
    >the members of the rules committee would have no institutional memory whatsoever.

    Terry has also proposed a requirement that members of the rules committee have previous experience in other allotted legislative bodies.

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  14. The present design, operation, and uses of grand juries is not consistent with the original understanding or intent of the Founders. To do that they would need to meet the following standards:

    1. Selected at random from the general public, with perhaps some filtering, but without “stacking”.
    2. Selection by a neutral party (not the judge or prosecutor).
    3. Size of 23.
    4. Decision by 12.
    5. Election of foreperson by the members.
    6. Term of service long enough to learn how to do it.
    7. Limits on terms of service to avoid entrenchment.
    8. Adequate training of grand jurors.
    9. Prevention of undue influence by interested parties, especially judge or prosecutors.
    10. Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
    11. Enough time to examine each case, or enough grand juries.
    12. No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
    13. Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
    14. Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
    15. Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
    16. Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
    17. Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
    18. Prevention of misuse during trials of evidence obtained by grand jury.

    For more on the subject see http://constitution.org/jury/gj/gj-us.htm

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  15. Here are a few links of interest:

    Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings: http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955

    New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.

    FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force: http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ . They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.

    Tennesee v. Garner, 471 U.S. 1 (1985) which held that:

    § This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)

    The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor: http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 . As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law. Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.

    According to the source of all knowledge (Wikipedia), 29 states still “employ some form of use grand jury.”

    According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).

    Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required. In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule. The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.

    Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries: http://www.law.cornell.edu/rules/frcrmp/rule_6 . In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23. As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time. That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.

    How grand juries are selected at the state level depends on state law which varies widely:

    n For example, Texas alone has two different systems for grand jury selection: http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence

    n The Missouri process seems to envision construction of a master list http://civilprocedure.uslegal.com/trial/jury-selection/missouri-jury-selection/ from which the jurors in Missouri are chosen by a judge. http://www.thewire.com/business/2014/08/what-to-expect-at-tomorrows-grand-jury-in-the-michael-brown-case/378777/ . The Missouri rules indicate that no juror may be disqualified from serving “because of race, color, religion, sex, national origin, or economic status” which seems to imply that there could be challenges under this legal standard.

    The Ferguson grand jury was unusual because the proceedings were made public. Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony. This is one reason why we know so little about how grand juries operate. In virtually all cases, no one is talking.

    On DA elections: This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections. Here are the re-election figures that Jim wanted to know:

    The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections. The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the incumbent success rate when running for office was 95%.

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