Article by Daniel A. Levy, Esq.

A grand jury decided not to indict Ferguson police Officer Darren Wilson in the shooting death of Michael Brown. This was heavily covered in the news and there are clearly very strong opinions about the case. This article is not a commentary about the grand jury’s decision or the specific evidence in the case against Darren Wilson. But I did want to use the Ferguson case as an example because the opinions and news coverage on the situation reflected the fact that many people really do not understand what a grand jury is and what goes on when a criminal case goes to grand jury. For those who want to take an intimate peek at what went on in the Ferguson grand jury, the entire proceeding was released to the public and is accessible here.

As a New Jersey criminal defense attorney, I first want to educate people about what a grand jury does not do. A grand jury does not decide guilt or innocence. The decision does not mean that the defendant is going to jail, or will not go to jail. It also is not a trial – the defense attorney does not get to cross-examine the witnesses, there is no judge ruling upon the admissibility of evidence, and there are no objections made. While many people have seen jury trials on TV (both fictional and, rarely, real), a grand jury is never televised and I don’t believe that I’ve ever seen a lawyer show that depicts a grand jury (and I watch a lot of them!).

The grand jury is something quite foreign to most people. Article 1, Paragraph 8 of the New Jersey Constitution guarantees an accused the right to indictment for all criminal charges, except for disorderly persons offenses. The grand jury is composed of 16 to 23 randomly selected people from the community. As discussed below, they essentially listen to a presentation by the prosecutor and return an indictment, or not (called a “no bill”). A grand jury, in rare occasions, may convene to investigate crimes (i.e. it’s asked whether to continue an investigation) or to make public presentations of findings, but those types of proceedings are not the subject of this article.

The grand jury is a secret proceeding. The defendant’s attorney is not permitted to be there, nor are any members of the public, nor is a judge present. Only the jurors, court staff, prosecutor, and witnesses under examination may be there. The prosecutor is in charge of presenting the case to the grand jury, and the prosecutor decides what charges to bring to the grand jury. And they have tremendous latitude in this regard; the decision not to prosecute will only be disturbed if it’s based on an unjustifiable standard, such as race, religion, etc.

The prosecutor generally decides what evidence to present. They may present all of the evidence (as was the case in the Ferguson grand jury) or only some of the evidence. The prosecutor chooses which witnesses to call and may introduce evidence that is entirely hearsay. For example, in the vast majority of criminal cases, the prosecutor will call the one or two detectives or police officers who investigated the crime and/or made the arrest, and that witness would discuss the investigation as a whole, statements made by others, reports authored by others, etc. The prosecutor may vigorously cross examine a witness, or decline to do so. They may summarize the evidence and make commentary, or not. They may zealously argue in favor of an indictment, or not (something that many commentators observed about the Ferguson case was the lack of zealous argument, but in New Jersey at least such would not be illegal or unethical). At the end of the presentation, they advise the grand jury of what the law says and then ask the grand jury for an indictment.

Before discussing what an indictment actually is, I want to point out some additional issues about the prosecutor’s selection of evidence. In the Ferguson case, some commentator’s questioned, even vehemently criticized, the prosecutor’s decision to present exculpatory evidence to the grand jury (i.e. the witness statements that supported Officer Wilson’s story, at least in part). In Federal court, this decision is essentially entirely up to the prosecutor. It is not illegal for a prosecutor to present such evidence in Federal court, but it generally isn’t done. New Jersey, however, has granted its citizens greater rights than those guaranteed under the US Constitution. Here, the prosecutor has a legal duty to present to the grand jury evidence that directly negates guilt and is clearly exculpatory (such as an eyewitness to the incident, an alibi, a lab report, etc.). Failure to present such evidence is grounds for overturning the grand jury’s decision. I am unsure whether Missouri is more like New Jersey or the Federal courts, but if it is like New Jersey then the prosecutor would be required to present those witnesses that supported Officer Wilson’s story.

In New Jersey, an indictment may be found only if at least twelve jurors agree; it therefore does not have to be a unanimous decision. The grand jury does not determine whether there is proof beyond a reasonable doubt. As the New Jersey Supreme Court pointed out, the standard is “whether there is evidence, which if unexplained or uncontradicted, would carry the case to a jury and justify the conviction of the accused.” Trap Rock Industries, Inc. v. Kohl, 59 N.J. 471 (1971). The way I describe this to my clients is like this: The grand jury is told to assume that everything that the prosecutor says is true and there is no defense at all, and then ask if they think a crime probably occurred.

And this is something where New Jersey drastically departs from what went on in the Ferguson grand jury. There, the defenses of self-defense and police use of force were presented to the grand jury. They were told the law and what the defense was and instructed that they could not return an indictment unless they were satisfied that they there was no probable cause to believe that those defenses were valid. I don’t know if that is required in Missouri, but in New Jersey it would not be presented in that fashion since the grand jury is essentially told to assume that there is no defense.

If the grand jury returns a true bill of indictment, only then may the case proceed to a trial. That will trigger the stage in the case where all evidence my be turned over, pre-trial motions may be filed, etc. If the grand jury does not return an indictment (called a “no bill”), or if the indictment is quashed by a judge, the prosecutor could simply present the case to a new grand jury. Again, this is entirely up to the prosecutor.

Finally, defendants may decide to waive an indictment. This is typically done when there is a pre-indictment plea offer that is extended and the defendant wants to accept. In such a case, the defendant accepts an accusation (practically, the same thing as an indictment but prepared only by the prosecutor) and pleads guilty to the charges in the accusation.