The furor at Ferguson, Missouri can be said to arise in part from the Fifth Amendment to our Constitution. This Amendment stipulates that trials for felony violation can commence only after indictment by grand jury. This amendment also protects the accused against double jeopardy (being tried twice for the same crime) and protects the accused from being compelled to reveal information that may be used to incriminate (from which we get the infamous phrase, ‘take the Fifth’).
In our society operating under rule of law, trial juries are the de jour final finder of fact. Prosecutors may have investigators and the Department of Justice the FBI, but it is usually up to a jury to find fact and determine truth. There are exceptions such as when the defendant chooses to have the judge alone act as finder of fact, however it is the trial jury that usually performs this function. By finder of fact, I mean that the trial jury hears evidence and determines guilt by issuance of a finding of not guilty or guilty (there being no finding nor plea of ‘innocent’ – the defendant is either guilty or not guilty). The role of the trial jury is so central to the rule of law that most judges, and others in the court if they are wise, stand whenever members of the jury enter or depart the courtroom.
Juries exist in several formats. In the case of Ferguson, we are awaiting the decision of their grand jury. Grand juries are usually composed of 16 to 23 members. A grand jury is ‘grand’ because it is [usually] composed of more members than a trial jury. Felony trial juries usually consist of twelve members plus an occasional spare for lengthy trials in case of illness or other reason a regular juror would be otherwise discharged. Grand juries are generally chosen from a subset of registered voters in the community of the accused and serve for a period of time usually less than two years. Members of the trial jury serve only for the period of the trial or until released by the judge.
The function of the grand jury is to make a determination whether the prosecutor’s ‘facts’ constitute sufficient probable cause to bind the accused over for trial. This is done by issuance of either an indictment (or True Bill) or by a ‘No Bill.’ A true bill is an affirmative finding resulting in trial and a no bill is a finding that the prosecution’s facts are insufficient to support charges (absence of probable cause).
Grand juries can command the appearance of witnesses, documents, or other evidence as necessary for their deliberation. Unlike trial court, witnesses before a grand jury have no right to representation by council (and a newspaper has already erroneously bemoaned the fact that witnesses were interviewed by the grand jury without council). The exclusionary rule doesn’t apply either. That is there are no or reduced protections under the Fourth and Sixth Amendments. These of course Do apply to the trial court (Fourth Amendment – protection from unreasonable search and seizure; and Sixth Amendment – speedy and public trial by an impartial jury). Of course we already have the attorney for the Brown family complaining that the Ferguson Grand Jury has taken so much time it seems like a secret trial is taking place.
The Grand Jury operates independently of the trial court. This separation provides a dual measure of relief to the accused, the second being trial court. Grand juries depend heavily upon the prosecutor for procedural processes and information about the law but they also may seek their own such information. Generally it is not necessary for a grand jury decision to be unanimous for issuance of a true bill. The standard of proof is far less here than required of the trial jury where greater protections for the accused exist along with the highest standard of proof.
In federal and most state matters involving non-capital crime, the accused may waive indictment without indicating guilt and proceed directly to trial.
The Ferguson Grand Jury has hopefully reviewed autopsy results, any video or audio records, and interviewed relevant witnesses. Hopefully their deliberations have occurred independent of the real threat of community violence. Can any of you suggest a more fair system for the determination of probable cause?
Is it sad that eighteen-year-old Michael Brown was shot and killed by Officer Darin Wilson? You bet it is. Life is to be revered and protected. What we don’t and likely cannot know is the exact sequence of events that caused Officer Wilson to shoot Brown until he was dead, dead, dead. How easy it is for us in retrospect and with all amounts of deliberation and additional ‘facts’ to judge Officer Wilson. Unfortunately he did not have large amounts of deliberative time. He was required to assess the situation and act accordingly in the heat of the moment.
Did Officer Wilson reasonably believe that he or others were in serious jeopardy? This is what the Grand Jury will have to decide.
You might inquire, what about the looting and arson surrounding the Ferguson matter?
We have a segment of society seeking any reason to justify illegal actions. Looters and plunderers hiding behind mob action operate outside rule of law and serve to weaken the ties that bind us together as a society. Were it Texas, I’d say send a Ranger. Sadly Missouri has no such revered institution. Meanwhile, Officer Wilson and the nation awaits…