Over the past few months, we've all seen and heard the news and rumblings about grand juries and its pros and cons. From Ferguson, Missouri to the NYC choking case, a grand jury was used to determine—or in some cases reaffirm—whether or not to indict on criminal charges. Sit back, relax, read this post, and remember, although grand juries can sometimes seem wrong and outdated, question why you think this way. Are you in disagreement with the process of the grand jury, or the decision of the grand jury? These are two separate animals, and should be kept separate.
What is it?
A grand jury is a very important tool used in the criminal process of Ohio law. Typically, there are anywhere from 15 to 25 potential jurors chosen to partake in the grand jury process. In Ohio, only 15 grand jurors will be picked for his or her duty as Ohio citizens. The process of choosing the grand jurors is very similar to that of a normal trial's voir dire (Google it) where jurors are picked for trials. However, unlike regular trials, in a grand jury picking, the defense and State counsel does not pick the jurors. Once the 15 jurors have been selected and are fit for service, the jurors will be charged by the judge, where each grand juror will either swear or affirm to uphold and carry out his or her oaths as a grand juror. Once the members are chosen, they will serve for grand jury duty for a few months at a time—sometimes being called to service, other times not.
How is it used?
Grand juries are used to determine if the State has enough evidence to indict someone for some certain crime. Is there enough evidence to warrant some type of charge against someone where a normal criminal jury could potentially find that beyond a reasonable doubt the person is guilty as charged? If this answer is no, then the prosecutor will more than likely not bring charges because it would be very tough to win the case. However, if the answer is yes—there is enough evidence—charges will more than likely be brought against the defendant. In legal terms, when the grand jury finds enough evidence to indict—it is called a true bill; not enough evidence to indict is called a no bill.
How does it differ from a normal jury?
Unlike a regular jury in a criminal trial that determines guilt or innocence, a grand jury does not find guilt or render some type of punishment (although some could argue that the mere presence of an indictment is punishment enough—litigation stress anyone?). One important distinction between a regular jury and a grand jury is that during a grand jury proceeding, the defense counsel is not present at all. Seems pretty one-sided doesn't it? In fact, it is very one-sided, which is the point. The whole point of a grand jury is to determine if the State has enough evidence to move forward with charges against a person. The reasoning goes—if these 15 jurors do not think there is a true bill (enough evidence to convict), what are the chances the next 12 normal jurors will think the opposite? The chances are very slim. So rather than waste time, money, and other resources for both parties, a grand jury can act as a large filter for separating the triable cases from the cases that will probably lose. This is not so that the prosecutor can keep his or her winning percentage higher (even though it does), it gives the defendant more rights and protects him or her from too much governmental intrusion, while affording him or her the well-deserved rightful due process of our legal system. In fact, sometimes the prosecutor will take the case to a grand jury just to reaffirm what he or she already knows—there is not enough evidence, however the prosecutor will still let the people decide.
Finally, we get to the heart of a grand jury and why some people might not trust the process. The best thing about a grand jury is also the worst thing about a grand jury—its secrecy. The grand jury is kept secret for two reasons:
- Just in case the defendant is not indicted, the proceedings are kept secret to protect the reputation of the defendant.
- The secrecy encourages any witnesses to come forward and speak freely without any fear of retaliation from anyone.
When things are said in confidence, we get the truth. Also, when a defendant is not indicted, we do not want the public to know about all the things said during the proceeding because you were not indicted, and are free to leave. If the public knew about all the evidence in a grand jury's investigation—the public shaming would be enough to drive people out of town and his or her reputation would be wrecked for better terms. Take for example the grand jury investigation of Darren Wilson for the untimely death of Michael Brown. As we know, there was no indictment, however at the end, the prosecutor explained all of the evidence and proceedings to the country—this is not normal. When this occurs, although there may be a good reason for the disclosure, it undermines the main reason why grand juries are secret in the first place. Why keep them secret at all when at the end, the prosecutor is going to publish everything?
With that being said, the court can—and as we have seen will—disclose the proceedings to the public. Why do some courts allow disclosure of the proceedings while others do not? In the Michael Brown case, possibly to explain to the public its decision, and it was made with sound reasoning and has been put through the legal process. As stated above, some people do not like grand juries because they are secret—people do not know for a fact if processes and policies were followed. Releasing evidence to the public acts as a mild anti-inflammatory allowing the public to see and understand its decision. Sometimes this works, other times it does not. There is an extreme balancing that must take place.
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