The Problem with Grand Juries

Both state and federal courts permit grand juries. A grand jury consists of group of citizens who decide, based on evidence presented by a prosecutor, whether a criminal case should proceed to trial.

A grand jury is different from a regular jury trial in that the purpose is not to determine guilt or innocence, but to decide whether there is “probable cause” to charge the accused with a crime.

If a grand jury finds that there is probable cause to prosecute, it returns an “indictment,” or a written statement of the criminal charges. On the other hand, if a grand jury decides there is no probable cause, it returns what is referred to as a “no bill,” or “not a true bill”, and the accused will not be criminally charged.

The Difference Between Preliminary Hearings and Grand Juries

Some states conduct preliminary hearings instead of convening grand juries in criminal cases. Preliminary hearings are usually held only in criminal cases where the accused pleads not guilty at the arraignment or initial appearance. In some states, preliminary hearings are held in every criminal case, in others they are held only in felony cases. Some states only grant preliminary hearings if the defense requests them.

There are, however, significant differences between preliminary hearings and grand jury proceedings. A preliminary hearing is held in open court before a judge or magistrate. The prosecution presents its evidence and the defense is given a chance to respond. Then, the judicial officer makes the determination as to whether there is probable cause to believe that the accused committed the crime charged.

Unlike a preliminary hearing, a grand jury does not make its probable cause decision in the context of an adversarial proceeding. Rather, grand jurors only get the opportunity to see and hear what prosecutors put before them.

Unconstitutional surveillance, illegally acquired evidence, or information obtained by unreliable means can be heard and relied upon by grand jurors, even though that information would be inadmissible in a regular criminal trial.

Where they have a choice, prosecutors often prefer grand juries because grand juries are run by the prosecutor, no judge is present, the normal rules of evidence do not apply, and the proceedings operate in secrecy.

The secrecy related to grand jury proceedings has received significant public criticism in the aftermath of the Ferguson and Staten Island grand jury decisions not to indict police officers involved in the killings of unarmed black men.

Why Grand Juries Rarely Indict Police Officers

The fact is, police officers are rarely indicted by grand juries for police misconduct. One explanation for this may be juror bias. Many jurors tend to trust police officers over those accused of a crime, often believing the police officer’s version of the story that his or her use of violence against the criminal suspect was justified under the circumstances.

Another explanation is prosecutorial bias. Investigations into police misconduct are usually conducted by police detectives and investigators from the prosecutors’ office. Prosecutors rely on the cooperation of the police to gather necessary evidence such as statements from police witnesses at the scene. In some instances, other than the victim of police misconduct, police officers are the only other witnesses to the incident.

While close collaboration between police and prosecutors may be an asset in most criminal investigations, the alliance between the police and prosecutors becomes a hindrance in police misconduct cases. This fundamental conflict of interest all too often results in prosecutors who are reluctant to aggressively pursue these types of cases.

Furthermore, local elected district attorneys do not want to be seen as interfering with police power, lest they lose their jobs. Even in communities where distrust of law enforcement is wide-spread, prosecutors do not typically get ousted from their positions for defending the police.

You Can File a Civil Lawsuit for Police Misconduct

While abuse of power by the police may not always result in a criminal indictment, police officers may still be held liable under federal civil law. Title 42 Section 1983 of the United States Code permits law enforcement officers to be sued in federal court for damages related to civil rights abuses.

The most common examples of abuse of power by the police includes unlawful searches and seizures, unlawful arrests, unwarranted use of force during an arrest, and the unwarranted use of deadly force.

Police officers are typically given great leeway in making decisions about to how much force to use in the course of conducting their jobs. However, a civil rights lawsuit can serve the purpose of holding a police officer accountable for misconduct, even when the criminal justice system does not.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.

Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.