Understanding Grand Jury Procedures

Making a Case for the Grand Jury? A Summary of Popular Online Sources

Evelyn E. Smith, M.S. in Library Science, 
University of North Texas (2012)

Updated December 15, 2014

Since many United States jurisdictions favor the use of preliminary hearings in criminal proceedings to see if enough evidence exists to bring a criminal case to trail, much of the public is unfamiliar with the grand jury process that decided not to indict Ferguson Police Officer Darren Wilson for the murder or manslaughter of Michael Brown in August as well as the grand jury verdict that cleared Staten Island police of any wrong doing in the death of Eric Garner. 

 However, all American citizens whatever their feelings about the grand jury proceedings will benefit from learning about this procedure by reading this short bibliography. 

The following URL address  also provides a link to all transcripts and testimony before the St. Louis County grand jury that the prosecutor has released:

Wells, Carlie Kollath. (2014, November 25).  Ferguson grand jury documents: Transcripts of evidence, testimony considered.  Times-Picayune.  Retrieved from http://www.nola.com/crime/index.ssf/2014/11/ferguson_grand_jury_evidence.html

The public can thus decide for itself without the filter of various news sources whether the grand jury's decision was correct.   

Holding an open preliminary hearing instead of allowing a grand jury to determine if the case goes to trial might assuage the African American community's distrust of grand jury trials.  However, this would also mean that some witnesses might fear for their safety if they testify.  Of course, this is not an option once a grand jury delivers its opinion since the Fifth Amendment of the United States Constitution prohibits "double jeopardy", or the prosecution of a defendant twice for the same offense. 

Criminal charges: How cases get started. (2014, November 4). Nolo. Retrieved from http://www.nolo.com/legal-encyclopedia/charged-with-crime-how-29677.html

Criminal cases usually start with a police arrest report whereupon a prosecutor decides whether or not to file criminal charges. Some cases go to a grand jury or a preliminary hearing before this occurs (Nolo, 2014, November 4, para. 1).

Arrest Reports and Criminal Charges

The prosecutor determines whether a potential case should be charged as a misdemeanor or a felony ordinarily based upon a police officer's arrest record. Defendants usually learn what they will be charged with in their first court appearance (Nolo, 2014, November 4, para. 2-5).

The Role of a Grand Jury

A prosecutor may also leave the decision of whether to charge a potential defendant with a felony. A grand jury usually meets between 6 to 18 months, during which time it decides whether or not to indict numerous cases (Nolo, 2014, November 4, para. 6-7).

Ordinarily, a grand jury doesn't call a suspect to testify, but if it does, he or she can invoke his or her privilege against self-incrimination under the United States Constitution's fifth amendment (Nolo, 2014, November 4, para. 9). If the grand jury decides to indict a suspect, it returns a “true bill”, but if it decides not to bring a case to trial, it returns a “no bill”. The prosecutor, however, can return to the same grand jury with more evidence, or else he or she can bypass the grand jury and fill a criminal complaint (Nolo, 2014, November 4, para. 10).

Bello, Marisol Toppo, Greg, and Peter Eisler. (2014, November25). Grand jury charges are easy, except against police. USA Today. Retrieved from http://www.usatoday.com/story/news/nation/2014/11/25/ferguson-grand-jury/70098616/

The St.Louis County grand jury that didn't charge Ferguson police officer Darren Wilson in the shooting death of Michael Brown plowed through 24 volumes of evidence and almost 5,000 pages of testimony while listening to 60 witnesses during a hearing that lasted three months (Bello, 2014, November 25, para. 5). They heard 70 hours of testimony, including contradictory eyewitness statements, autopsy reports, and forensic evidence (Bello, 2014, November 25, para. 7). Wilson's detailed testimony alone took up almost 100 typed pages (Bello, 2014,November 25, para. 8).

A critic of the procedure, Ben Trauchtenberg, a University of Missouri professor, contends that this “overwhelming amount of evidence” went far beyond trying to prove probable cause but instead served to “bolster” Warren's version of what happened (Bello, 2014, November 25, para. 14, 18, & 21).


However, Joel Shults, a retired police chief of Adams State University in Colorado, justifies Prosecutor Robert McCulloch's decision to provide the grand jury with all this evidence, “If McCulloch hadn't presented exhaustive evidence,critics would have accused him of withholding evidence” Bello, 2014, November 25, para. 21).

Eckholm, Erik, and Bosman, Julie. (2014, November 14). For Ferguson Grand Jury, details and responsibilities are abundant. New York Times. Retrieved from http://www.nytimes.com/2014/11/15/us/ferguson-shooting-michael-brown-grand-jury.html?_r=0

After hearing testimony in the death of Michael Brown, the unarmed 18-year-old shot by Officer Darren Wilson in Ferguson, Missouri, on August 9, 2014, a grand jury is near rendering a decision (Eckholm, 2014, November 14, para. 1).

Most grand juries approve proposed indictment after hearing only a few witnesses and receiving an outline of incriminating evidence, but St. Louis prosecuting attorney, Robert P. McCulloch, has presented “absolutely everything” to a grand jury of nine whites and three African-American grand jurors, so the proceeding have resembled a normal jury trial (Eckholm, 2014, November 14, para. 2-4).

Grand jury members will have to make some “crucial judgments' upon receiving instructions detailing a possible range of charges and hearing about the legal grounds justifying an officer's use of deadly force (Eckholm, 2014, November 14, para. 6).

St. Louis prosecutors appear to be giving the grand jury the ability to decide this case in the hope that this will have more credibility with the public (Eckholm, 2014, November 14, para. 8), but Brown's family and supporters remain suspicious about the drawn-out proceeding, arguing that Wilson should have been indicted months ago (Eckholm, 2014, November 14, para. 9). Their attorney, for example, maintains a secret trial is taking place (Eckholm, 2014, November 14, para. 10). Additionally, Officer Wilson testified before the grand jury for four hours in September, which is also highly unusual (Eckholm, 2014, November 14, para. 11).

Also, instead of recommending a charge, prosecutors are providing grand jurors with definitions of all possible crimes and the penalties they might incur just as in a jury trial (Eckholm, 2014, November 14, para. 12):

• Second-degree murder: “Knowingly causing the death of another person” (penalty 10 to 30 years);

• Voluntary manslaughter: Causing a death “under the influence of sudden passion arising from adequate cause” (penalty 5 to 15 years);

• Involuntary manslaughter in the first degree: “Recklessly” causing a death (penalty not to exceed 7 years);

• Involuntary manslaughter in the second degree: “Acting with criminal negligence to cause a death” (penalty not to exceed four years).

(Eckholm, 2014, November 14, para. 13)

The grand jury will also consider the grounds for the official use of deadly force as well as self-defense along with assessing eyewitness testimony, forensic evidence, and the law (Eckholm, 2014, November 14, para. 14-15).

Ferguson grand jury questions answered. (2014, November 17). U.S. News & World Report. Retrieved from http://www.usnews.com/news/us/articles/2014/11/17/answers-to-questions-about-the-ferguson-grand-jury

Q. What is the grand jury deciding?

A. Whether enough evidence exists to charge someone [in this case, Derrick Wilson] with a crime and what the charges will be (U.S. News, 2014, November 17, para. 1).

Q. When will they make a decision?

A. The grand jury alone decides when to announce its decision (U.S. News, 2014, November 17, para. 2).

Q. How many people are on the grand jury and how are they selected?

A. Twelve randomly-selected jurors from a “fair cross-section of citizens”--This particular grand jury is 75 percent white (St. Louis County is 70 percent white, but 2/3rds of Ferguson's residents are African American) (U.S. News, 2014, November 17, para. 3).

Q. Is the grand jury appointed for a specific case?

A. No, a Missouri grand jury ordinarily serves for a four-month term. This particular grand jury was due to expire September 10^th, but that day a St. Louis County judge extended its term to January 7, 2015 (U.S. News, 2014, November 17, para. 4).

Q. How often do the grand jurors meet?

A. As their schedules allow; for example, one day a week (U.S. News, 2014, November 17, para. 5).

Q. Who is inside the grand jury room?

A. The grand jury, a prosecutor and one witness at a time (U.S. News, 2014, November 17, para. 6).

Q. What happens when the grand jury convenes?

A. Prosecutors present evidence and require witnesses to testify, so the grand jury ordinarily hears a condensed version of the evidence. In the Ferguson case, however, the grand jury has heard more extensive evidence and testimony (U.S. News, 2014, November 17, para. 7).

Q. Who has testified to the grand jury?

A. Wilson has testified in his own defense, and other witnesses and forensic experts have also testified (U.S. News, 2014, November 17, para. 8).

Q. What charges does Missouri allow in homicide cases?

A. Second-degree involuntary manslaughter, first-degree involuntary manslaughter, voluntary man-slaughter, second-degree murder, and first-degree murder (U.S. News, 2014, November 17, para. 9).

Q. Do charges require a unanimous vote?

A. No, in Missouri, the consent of nine jurors is enough to file a charge; The grand jury can also decide not to file charges (U.S. News, 2014, November 17, para. 10).

Q. Can jurors speak to the public?

A. No, disclosing evidence can lead to a misdemeanor charge (U.S. News, 2014, November 17, para. 10).

Q. What will publicly be disclosed when nine jurors reach a decision?

A. St. Louis  County, Missouri, Prosecutor Robert McCulloch has promised before hand that he would release transcripts and audio recordings if Wilson isn't indicted. If a grand jury charges a suspect, only the indictment is made public (U.S. News, 2014, November 17, para. 11).

Q. What preparations are being made?

A. Missouri Governor Jay Nixon has declared a state of emergency, activating the National Guard and closing local schools (U.S. News, 2014, November 17, para. 12).

How does a Grand Jury work? (2014). Find Law. Thomson Reuters. Retrieved from http://criminal.findlaw.com/criminal-procedure/how-does-a-grand-jury-work.html

Grand juries don't determine guilt or innocent, but rather they determine whether a prosecutor should bring criminal charges or an indictment against a potential defendant. The 16 to 23 citizens who make up a grand jury serve for several months at a time usually one day per week (Find Law, 2014, para. 1).

Approximately half the states routinely use grand juries while the other half choose to hold preliminary hearing instead (even though grand jury laws are still a less used part of their criminal procedures). While grand jury hearing remain closed to the public, preliminary hearings are open to the public and involve lawyers and a judge. In some states, a preliminary hearing might take place before a grand jury meets (Find Law, 2014, para. 2 & 3).

A prosecutor, who helps explain the law and gather evidence, is the only court official present in a grand jury hearing. In contrast to a preliminary hearing, grand juries hear testimony in secret, so witnesses can ideally speak freely without fear of reprisal, and the defendant's reputation can be spared if the case doesn't come to trial (Find Law, 2014, para. 4-6).

A grand jury's decision requires a super majority of 2/3rds or 3/4ths, depending on the jurisdiction, to come to trial. However, a prosecutor may still decide to indict a defendant. However, without a grand jury indictment, the prosecutor must convince a judge that enough evidence exists to bring a case to trial (Find Law, 2014, para. 7-8). 

Trumbull, Mark. (2014, November 19). Ferguson grand jury: What do we know about Michael Brown deliberations ? (+ video). Christian Science Monitor. Retrieved from http://www.csmonitor.com/USA/Justice/2014/1119/Ferguson-grand-jury-What-do-we-know-about-Michael-Brown-deliberations-video

Trumbull provides “a rundown on what the grand jury is doing and how it works” (Trumbull, 2014, November 19, para. 4).

What is a grand jury?

A grand jury decides whether a county prosecutor should bring a criminal charge to trail, hearing evidence and either issuing a “true bill” or indictment or declining a prosecutor's request to indict (Trumbull, 2014, November 19, para. 5).

Who is on the grand jury in the Michael Brown case?

Missouri law specifies 12 people “selected from a fair cross section of the citizens”. The grand jury of six white men, three white women, two African-American women, and one African-American man (or 75 percent white, 25 percent African American) approximates the population of St. Louis County, which is 70 percent white, but fails to reflect the population of Ferguson, Missouri, which is 2/3rds African-American (Trumbull, 2014, November 19, para. 6).

What must they decide on?

They needed to decide if enough evidence existed to charge Wilson as well as what that charge would be (Trumbull, 2014, November 19, para 7).

What evidence have they heard?

The hearing was secret, but some important information leaked out—Wilson testified as a witness, and Dr. Michael Baden, who performed a private autopsy on Brown for his family, also testified (Trumbull, 2014, November 19, para. 8).

Officer Wilson argued that he acted in self-defense; however, other witnesses claim he shot a fleeing Brown. Accounts differed as to whether Brown put his hands up and asked Wilson to stop shooting or whether he was moving towards Wilson when killed (Trumbull, 2014, November 19, para. 9-11). Here, forensic evidence helped grand jurors determine what actually happened.

What information will the grand jurors make public?

If a grand jury charges a suspect, the prosecutor makes the indictment public, but he or she keeps the evidence secret for use in trail. In this case, the St. Louis County Prosecutor, Robert McCulloch, promised to release the grand juror 's transcripts and audio recordings even if Wilson was not indicted (Trumbull, 2014, November 19, para. 13).

When will the grand jury make the decision?

The timing is entirely up to the grand jurors (Trumbull, 2014, November 19, para. 14).

Do criminal charges require a unanimous vote?

No only nine jurors voting to indict a suspect are enough to file a charge in Missouri (Trumbull, 2014, November 19, para. 15).

What is the point of having a grand jury make this kind of decision?

Tradition wisdom holds that a grand jury serves as a check against the prosecutor having too much power, even though grand jurors typically issue indictments sought by county prosecutors. However, they also have the right to ask questions and call for more evidence (Trumbull, 2014, November 19, para. 16). The St. Louis prosecutor, however, most probably thought that a grand jury decision might be less “volatile” than one solely made by the prosecutor's office (Trumbull, 2014, November 19, para. 17).

What is a grand jury indictment? (2014). WiseGEEK. Retrieved from http://www.wisegeek.org/what-is-a-grand-jury-indictment.htm

A grand jury indictment is a formal charge n a criminal case issued by a grand jury once it determines that enough evidence exists to charge a suspect with a criminal offense. A grand jury usually consists of 12 randomly-selected average citizens (WiseGEEK, 2014, para. 1).

Grand juries were a part of common law procedure in England*, Australia, and Canada during the 20^th century. In the United States, some states still use grand jury indictments in criminal cases (WiseGEEK, 2013, para. 2).

See also: Grand Jury. (2014, January 8). New World Encyclopedia. Retrieved from http://www.newworldencyclopedia.org/entry/Grand_jury

*Common law, or law based on previous legal decisions (or legal precedence, isn't a part of Scottish law.