A high school graduation photo of Michael Brown rests on top of a snow-covered memorial Monday, Nov. 17, 2014, more than three months after the black teen was shot and killed nearby by a white policeman in Ferguson, Mo. Missouri Governor Jay Nixon declared a state of emergency on Monday as a grand jury deliberates on whether to charge Ferguson police officer Darren Wilson in the death. (AP Photo/St. Louis Post-Dispatch, Robert Cohen)
A high school graduation photo of Michael Brown rests on top of a snow-covered memorial Monday, Nov. 17, 2014, more than three months after the black teen was shot and killed nearby by a white policeman in Ferguson, Mo. Missouri Governor Jay Nixon declared a state of emergency on Monday as a grand jury deliberates on whether to charge Ferguson police officer Darren Wilson in the death. (AP Photo/St. Louis Post-Dispatch, Robert Cohen)

While we await word from the St. Louis County, Missouri grand jury investigating the shooting death of Michael Brown, this would be a good time to remind the public how the grand jury system works, what grand juries are and what they are not.

  • Grand juries are usually not sequestered.
  • Grand jurors don't have to swear they have no opinions about whatever they are investigating.
  • Defense lawyers and judges are not allowed in the grand jury room.
  • It is more difficult for a person being investigated to challenge or "strike" a grand juror from hearing a case.
  • Grand juries may take direction from a prosecutor or go out on their own to seek information and testimony.
  • Grand juries generally produce three kinds of reports:
    • a true bill, which is an indictment, which means the person goes to a trial hearing
    • a no true bill, which means the panel didn't find enough evidence 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.
  • Hearsay evidence is allowed in grand jury testimony, unlike in open court.
  • Grand juries do not have to be in total agreement to return an indictment in a case.
  • Grand juries issue indictments based on whether there is probable cause to believe a person is guilty of a crime. That is a much lower level of proof than is required for a conviction.

Why do we have grand juries?
The notion of a citizen's investigative panel has roots hundreds of years deep, stretching back to Old English law. The original idea was to have some way to keep the monarchy from being able to prosecute enemies for no good reason.

Grand juries are mentioned in the Fifth Amendment to the U.S. Constitution:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

"Historically grand juries have been both a shield and a sword. They are a shield against politically driven prosecution and they are a sword when a prosecutor sticks his head in the sand and refuses to take on a case, like organized crime cases for example," said Penny White, University of Tennessee law professor and former state Supreme Court Justice.

One of the early examples of how we use grand juries came in the case of John Peter Zenger in 1734. Zenger was a newspaper printer and the paper he printed was deeply critical of the Governor of New York.  The governor wanted to shut the paper down. Two grand juries refused to indict Zenger for sedition. The grand jury system acted as a shield protecting a free press from an angry governor.

Penny White,  Director of the Center for Advocacy and Elvin E. Overton Distinguished Professor of Law at the University of Tennessee, former Tennessee Supreme Court Justice
Penny White

Grand juries are, largely, investigative panels. Jurors are selected from the same pool of citizens as petit juries, but their duties and terms are very different. In most places, grand juries can meet for up to six months, but they do not usually meet every day, as juries do in criminal or civil trials.  

Unlike juries who hear cases in open court, grand juror names are kept secret. St. Louis County court officials did say the panelists include a black man, two black women, six white men and three white women.

Missouri Law for grand juries
In Missouri, the state law lays out some specific duties for grand juries:

Mo. Rev. Statutes Chapter 540.

540.031. A grand jury may make inquiry into and return indictments for all grades of crimes and shall make inquiry into all possible violations of the criminal laws as the court may direct. The grand jury may examine public buildings and report on their conditions.

Missouri's law allows for there to be a court reporter in the grand jury room.

Reporter to record testimony--oath.

540.105. An official reporter of the circuit court, when directed by the judge thereof, shall take down and transcribe for the use of the prosecuting or circuit attorney any or all evidence given before the grand jury. Before taking down any such evidence, however, such reporter shall be sworn by the foreperson of such grand jury not to divulge any of the proceedings or testimony before the grand jury or the names of any witnesses except to the prosecuting or circuit attorney or to any attorney lawfully assisting him in the prosecution of an indictment brought by such grand jury.

And Missouri law makes it clear that what is said in the grand jury room is supposed to stay there:

Grand juror not to disclose evidence--penalty.

540.320. No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for a felony, not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the provisions of this section shall be deemed guilty of a class A misdemeanor.

And, Professor White tells me that the Missouri law includes one unusual provision. Grand jurors can be required to testify in a trial:

Grand jurors required to testify, when.

540.300. Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court. They may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for such offense.

How grand juries are different from petit juries
Grand juries do not decide guilt or innocence. They listen to evidence and decide if somebody should be charged with a crime. Grand jurors can ask questions. "It is rare for a prosecutor to seek an indictment from a grand jury and not get one," White said.

Grand jurors do not have to claim to be unbiased and defense lawyers do not have the ability to "strike" grand jurors from serving. The Cornell Legal Information Institute explains:

When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require.

Grand jury sessions are far less formal than open court sessions partly because there is no judge inside the grand jury room. The prosecutor for that jurisdiction is usually present and guides the grand jury through the law and the gathering of evidence. Still, grand juries can hear whomever they want and ask lots of questions.

Chris Hoyer, former federal and state prosecutor in Tampa, Florida. 40 years of experience practicing law.
Chris Hoyer

Chris Hoyer, who was a federal prosecutor for 10 years and state prosecutor in Tampa, Florida, for eight years says grand jury rooms feel a lot like a classroom. "There are lots of questions, a lot of conversation, lots of participation," he said. Often, he says, an investigator from the prosecutor's office will come to the grand jury with a thick file of evidence. "The case agent summarizes what police have found, what witnesses said and what tests have been done." In open court, each person who did that work would have to personally testify as to what they discovered but in a grand jury hearsay evidence is allowed.

Grand Jury versus Preliminary Hearing
All 50 states allow grand juries but often court systems use preliminary hearings instead. Preliminary hearings are held in open court and defense lawyers can cross examine witnesses. "The trend toward preliminary hearings is largely driven by the perception that it saves money," according to White. "Many defendants waive preliminary hearings and go straight to trail, so in that way, it saves money not to go through a grand jury process." 

The advantage of a grand jury hearing is that the closed nature of the hearing protects the reputation of the person being investigated in case there is not enough evidence for a case to go forward.

On the other hand, defense attorneys often like preliminary hearings. White explained: "From a defense point of view that is the only time you will get a state’s case in advance of trial."

Hoyer agreed, "As a defense attorney I would much rather have a preliminary hearing because you could discredit or intimidate a witness who might harm your client. But from a prosecutor's point of view, a grand jury is better because some witnesses, especially informants, may not want to testify in public. They would not be willing to say what they know and be forthcoming like they would in a grand jury setting."

The Burden of Proof
In criminal cases, grand jurors have to answer two key questions when they consider a case. (1) Is there probable cause to believe a crime was committed? (2) Is there some evidence to show that the accused person was involved in the crime?

For the grand jury to indict Officer Darren Wilson in the shooting death of Michael Brown, at least nine of the 12 jurors will have to say that it's reasonable to believe he could be found guilty of crimes that could range from second degree murder to criminally negligent manslaughter. (The LA Times explains the range of possible charges in this story.) Remember that to convict a person of a crime, the burden of proof is much higher. An indictment requires establishing "probable cause," a conviction requires the evidence to be proven true beyond a "reasonable doubt."

The grand jurors vote in private, with no prosecutor present.

An Unusual Grand Jury Session
The St. Louis County grand jury session is highly unusual because Wilson himself testified without a lawyer present. It is rare for the main suspect in a case to appear before a grand jury.

"Most defense lawyers would not put their client through that," White said. After a grand jury testimony, "They can’t shift their theory of defense." And while the defendant cannot have a lawyer by his or her side, the defendant is allowed to come out after every question.

Hoyer said in some jurisdictions, if the target of a grand jury testifies, they can be given "targeted immunity" meaning what they say to the grand jury cannot be used against them in court.

St. Louis County prosecutor  Robert McCulloch said his office would hand over "absolutely everything" it had collected as evidence in the case so jurors could hear from eyewitnesses, forensic experts and police investigators who all appeared to have starkly different versions of what happened. The prosecutor's office said it presented the grand jury with DNA information, ballistics information and heard from Dorian Johnson, the friend who was with Michael Brown at the shooting.

The Washington Post pointed out another unusual tactic in this grand jury investigation; the prosecutors say they are not telling jurors what charges they think Wilson should face, but instead are leaving the decision on whether to indict or not totally up to the panel.

"If you want to have a tough decision made for you, you take a case (like the Ferguson, Missouri case) to a grand jury rather than just bringing charges," Hoyer said. "It is especially true in cases where you don't know who to believe, where there is a high-stakes decision."

What Happens After the Grand Jury Reports?
While grand jury testimony is usually secret, the prosecutor's office has said if there is no indictment in the case, it will ask the court to allow the release of witness testimony without the witness' names so the public can know as much as possible about what the grand jury heard. And the prosecutor's spokesman said if the grand jury does not indict the officer, the county will not pursue charges on its own or seat a second grand jury unless significant new evidence came to light.