PDA

View Full Version : Explain the meaning of the Ferguson grand jury decision?


Machine Elf
11-25-2014, 07:03 AM
Not looking for debate or argument here. I just want to understand the legal significance of the grand jury's decision not to indict officer Wilson.

People sometimes get angry when a person arrested for some heinous infraction is released on bail because they think it's unjust/unfair, like the arrestee is getting away with his crime. But they fail to remember that the person has not yet been convicted; he's not supposed to be punished yet, and so it's appropriate to let him walk around in public for now, provided they have some assurance that he will show up for his trial.

People sometimes get angry when a person is found "not guilty" at trial, forgetting that there is a difference between "innocent" and "not guilty." The latter does not mean the defendant didn't commit his crime; it merely means the evidence presented at the trial was not sufficient to prove guilt beyond a reasonable doubt.

And now, people around the country are angry about the Ferguson grand jury's decision not to indict Wilson. Which leads me to ask:what is the meaning of the grand jury's decision? Does it mean:

-they think he's factually innocent?
-they think there's not enough evidence to bother with a full-blown trial?
-they think there's not enough evidence to provide strong assurance of a conviction at a trial (regard?
-...something else?

I gather that a grand jury isn't convened for every single person suspected of a crime. Under what circumstances is a grand jury convened?

Telemark
11-25-2014, 07:15 AM
what is the meaning of the grand jury's decision?

http://en.wikipedia.org/wiki/Grand_jury
The grand jury's accusatory function is to determine whether or not there is probable cause to believe that one or more persons committed a certain offense within the venue of the district court.
The specifics vary by jurisdiction but the decision basically means that the grand jury decided that the evidence presented didn't show probable cause to believe the officer committed a crime.

Martin Hyde
11-25-2014, 07:29 AM
It just means the grand jury didn't find probable cause that the person involved committed any crime. I guess rolled up in that definition would be the second two of your three, a grand jury that doesn't find probable cause would also implicitly reason there is little chance of conviction and certainly no reason for a trial.

In general the court system almost never deals with the issue of determining genuine innocence. That really only seems to come up in cases of appealing criminal convictions to exonerate someone (where new evidence of genuine innocence can often be what gets someone set free.)

There is no standard on grand juries from State to State, so it will vary from one to another. The ancient concept of a grand jury was to protect citizens from malicious prosecutions, it's a recognition that whatever happens at trial just being prosecuted can be used as a tool of the State to punish people unjustly. Since the grand jury only has to find that there is probable cause, they very rarely fail to indict, they are really just a check to make sure you don't have a government that is outright maliciously and flagrantly going after people for no reason.

Probable cause is a low standard, in the hierarchy of burden of proof standards it'd go: reasonable suspicion --> probable cause (required for warrants / police arrests of people / indictments) --> preponderance of the evidence (required to rule in favor of a plaintiff in a civil matter) --> clear and convincing (required in certain situations, like an appeal of a criminal conviction, clear and convincing evidence of innocence may be required to get relief) --> beyond a reasonable doubt (required to convict in criminal court)

As for whether a grand jury is used or not, that's where it matters what jurisdiction you are in. The "ordinary" flow chart for a grand jury case might be:

[Arrest] (Officer believes crime has been committed, effects arrest) --> [Preliminary Hearing] (Before a judge or magistrate, this person determines if there is probable cause, if not, the process stops here) --> [Bail / Detention Hearing] --> [Grand Jury] --> [Trial]

That's for your garden variety crime, many of which start with a police officer being directly involved and making an arrest. The preliminary hearing before a magistrate early in the process is the first line of defense for the accused, you're going to have that very shortly after being arrested and it's again, designed to just get people out of jail for whom there is essentially no evidence supporting an arrest. So it's a protection against vindictive arrest.

Another example of when a grand jury might be used would be any situation where a prosecutor suspects a person may be guilty of a crime but no arrest has been made. The prosecutor will go before a grand jury to get an indictment. In this scenario the indictment can actually precede the arrest, and there may not be a preliminary hearing at all since the indictment is considered a stronger proof that there is probable cause to support a charge and a trial.

There are complex reasons this might occur. Sometimes it's because of the notoriety of a defendant, the prosecutor doesn't want to make an arrest unless he can get an indictment. Remember all the stuff with Barry Bonds and BALCO and the grand jury involved there? In theory they could have arrested Barry, but he was a mega-millionaire and likely his lawyers would have gotten the charges dismissed in a preliminary hearing, so the prosecutors went through the grand jury process for strategic reasons.

Other times, a prosecutor is laying out a case against a criminal conspiracy and needs to present evidence on a wide range of issues and a wide range of individuals. The grand jury proceedings are absolutely secret, and this is a mechanism the prosecutor can use to get a large batch of indictments, and then police can execute the warrants en masse. This is important because in a criminal conspiracy / criminal organization if they didn't arrest everyone at once, most would flee when they saw their co-conspirators getting arrested over the course of a few days or weeks.

In States and jurisdictions that do not use grand juries, the workflow is often similar to the first example above, but just without the grand jury. There is then just a preliminary hearing.

So basically deciding whether or not one will be used is a function of:

1. The law, some States require it in all felony cases. The Federal government and the U.S. Constitution require one in all felony cases, this requirement does not apply to the States.

2. If the law doesn't require it in all cases, it's typically a matter of prosecutorial discretion as to whether to use a grand jury or not, and in those cases the preliminary hearing may be the only test of probable cause prior to trial.

3. In States with grand juries, the defendant sometimes has the opportunity to waive the right to a grand jury and can just be served with a charge information statement instead. There are reasons a defendant might go this route.

All States have statutes pertaining to grand juries on the books, only about half the States actually use grand juries regularly. The Federal government uses grand juries for all felonies.

Diceman
11-26-2014, 11:38 AM
It's choice number 2: "-they think there's not enough evidence to bother with a full-blown trial."

The implication is that the evidence is so weak that no unbiased jury could ever find the defendant guilty.

Really Not All That Bright
11-26-2014, 11:53 AM
I gather that a grand jury isn't convened for every single person suspected of a crime. Under what circumstances is a grand jury convened?
In most states, "when the prosecutor feels like it." In some (a minority) it's required for capital charges or certain felonies.

bob++
11-26-2014, 12:16 PM
I was discussing this case last night in the pub. There is no 'grand jury' here and it's up to the CPS whether a case gets to court or not. The consensus was that the case would certainly have gone to trial. Before all that, there would have been a Coroner's Inquest to determine the cause of death (no argument there) and the circumstances around it. The verdict could be 'misadventure' meaning that it was accidental (unlikely) or unlawful killing which is the likely result here.

We thought that with such a public outcry, the CPS would think that all the evidence should be heard in open court. It would also allow a period of tome for the situation to cool down, as once the officer was charged (probably with manslaughter) the news media could no longer report on it.

Really Not All That Bright
11-26-2014, 12:18 PM
Er, wot? The news media certainly continued to report on the George Zimmerman saga after he was charged and there's no reason to think they would have stopped talking about Brown/Wilson/Ferguson.

Digital is the new Analog
11-26-2014, 12:32 PM
Er, wot? The news media certainly continued to report on the George Zimmerman saga after he was charged and there's no reason to think they would have stopped talking about Brown/Wilson/Ferguson.

bob++ is in the UK, according to his profile. Might be different laws/culture in play.

Really Not All That Bright
11-26-2014, 12:50 PM
Oh, yeah. That makes sense - I forgot the UK prohibits reporting on some pending criminal cases.

Martin Hyde
11-26-2014, 12:56 PM
Yeah, I've actually said a coroner's inquest would be a good thing here but we don't really have those in the United States. It gives people a feeling that the issue is being investigated in an open way where all the information will come out.

The thing in America is, let's say Darren Wilson wasn't a cop, and this was just a street confrontation where you had a bunch of witnesses. Many end up being unreliable, many support Wilson's story, many support a story slightly different. Physical evidence supports Wilson's story (which is a claim of self defense.)

What would your typical prosecutor do, removed from all the politics? Either decline to prosecute or try to prosecute on a pretty low charge hoping for a plea deal. But it's likely there wouldn't be a prosecution, because prosecutors here have extremely high conviction rates because they almost never go to trial with a case where they think they will probably lose.

The issue is the American system is not at all setup for a trial to be a "place where we learn what really happened." That isn't what a trial is designed for, the trial is a place where the State is trying to convict someone it believes committed a crime. If the State's agent doesn't believe a conviction is possible, our system is set up so that the State's agent really won't want to do the trial. That leaves some people feeling dissatisfied, because we don't really have a judicial process here that is just about "fact finding" other than a grand jury (which is rarely used for that, but legally can be, but which is also conducted in secret.)

Something like a congressional hearing can be a fact finding mission, but we don't really have the equivalent of that for individual criminal matters.

Diceman
11-26-2014, 01:07 PM
Something like a congressional hearing can be a fact finding mission, but we don't really have the equivalent of that for individual criminal matters.
Of course, congressional hearings have their own problems. Sometimes a congressional hearing is a genuine response to a problem, but more often it's being driven by some underlying political agenda. Consequently, you get a lot of posturing and politicians trying to score points, so the signal-to-noise ratio tends to be rather poor.

Loach
11-26-2014, 01:39 PM
But it's likely there wouldn't be a prosecution, because prosecutors here have extremely high conviction rates because they almost never go to trial with a case where they think they will probably lose.

Thank you for saying this. I tried to explain that multiple times in the past when someone brings up that they only need probable cause to charge someone. I seem to remember saying something similar in the first Zimmerman thread before it became a national story when someone asked what reason they might have for not charging. Trials are a pain in the ass. They are time consuming and there is lots of work involved even in relatively simple cases. Especially if you are in a county like mine where they have a heavy case load and too few judges. The prosecutors do not want to see just probable cause. They want to see a case they can win.

Senegoid
11-26-2014, 04:47 PM
How final is a Grand Jury "acquittal"? All explained in all the accounts, Wilson will now never be charged. Is that for certain? Could a prosecutor charge a suspect with a crime even after a GJ declines to indict? Could a prosecutor call for a new GJ if the first GJ declines to indict? There's nothing like double-jeopardy protection after a GJ finding, is there?

Julius Henry
11-26-2014, 10:05 PM
How final is a Grand Jury "acquittal"? All explained in all the accounts, Wilson will now never be charged. Is that for certain? Could a prosecutor charge a suspect with a crime even after a GJ declines to indict? Could a prosecutor call for a new GJ if the first GJ declines to indict? There's nothing like double-jeopardy protection after a GJ finding, is there?

Double jeopardy only applies to a trial, which this is not. Another Grand Jury could be convened, or the county prosecutor could choose to indict without a Grand Jury, but I think that's about as likely as me being elected President of the United States as a write-in candidate.

BigT
11-27-2014, 06:40 PM
Thank you for saying this. I tried to explain that multiple times in the past when someone brings up that they only need probable cause to charge someone. I seem to remember saying something similar in the first Zimmerman thread before it became a national story when someone asked what reason they might have for not charging. Trials are a pain in the ass. They are time consuming and there is lots of work involved even in relatively simple cases. Especially if you are in a county like mine where they have a heavy case load and too few judges. The prosecutors do not want to see just probable cause. They want to see a case they can win.

It's not something I don't know. It's just a perversion of the legal system. If it's supposed to be probable cause, that's what it should be, full stop.

Ranger Jeff
11-28-2014, 12:42 AM
I think if a GJ declines to indict, that's it for whatever political entity (state, county, city) or lessor entity the GJ was representing. I heard somewhere there's pressure for a Federal GJ to hear the case for Federal charges, which is another thing.

And no matter what the talking heads and activists have to say, I'm pretty sure the GJ was presented with evidence that was not available to the general public. And prosecutors are generally NOT permitted to make public statements until, at least, the trial (if there is one) begins.

Really Not All That Bright
11-28-2014, 03:25 PM
That's not it. Provided the jurisdiction does not require indictment by grand jury for the crime involved, the prosecutor can still charge by information (or whatever the local procedure is called). It's just not a very good idea.

Loach
11-29-2014, 12:32 AM
It's not something I don't know. It's just a perversion of the legal system. If it's supposed to be probable cause, that's what it should be, full stop.

No, it's not. You have a very simplistic view on the matter. Do you think it is a good idea for a prosecutor to go forward with a case that he is certain has reasonable doubt just because there is probable cause? What is the benefit to go through a trial he can't win? This is real life. Trials are not the last 15 minutes of Law and Order. They are time consuming and costly.

md2000
11-29-2014, 07:24 AM
No, it's not. You have a very simplistic view on the matter. Do you think it is a good idea for a prosecutor to go forward with a case that he is certain has reasonable doubt just because there is probable cause? What is the benefit to go through a trial he can't win? This is real life. Trials are not the last 15 minutes of Law and Order. They are time consuming and costly.

This is the oddity of a Grand Jury. What's the purpose of essentially a biased one-sided trial (in this case, taking 3 months) to determine if there is supposed to be a trial? That was the original purpose of a trial; the state says "there's probably cause that a crime was committed, let's have a trial". There should be no need for intense navel-gazing, the trial itself is what's supposed to solve the question of "how much evidence"?

A grand jury would be useful in cases where there is some evidence that cannot be elicited any other way, that may be crucial to the case, or there's some question who is likely the guilty parties in a confusing altercation.

Typically you will get conflicting testimony. It seems to me that is the purpose of a trial, to figure out who seems to be telling the truth and who is lying or confused. Just finding that "some said A some said B" does not mean A is not correct.

Martin Hyde
11-29-2014, 09:08 AM
Again, there is a hierarchy of standards of proof. Properly, a trial should not occur if there is not probable cause that a crime has been committed by the defendant. But a conviction should not be handed down unless there is evidence showing beyond a reasonable doubt that the defendant committed a crime.

The actual ethical standard would be that if a prosecutor sees a case where there is probable cause but also reasonable doubt he does not prosecute. Prosecutors represent the State, but they also are not, ethically, supposed to prosecute if they don't believe someone committed the crime beyond reasonable doubt.

Because they are different standards of proof it's entirely possible that a case could have probable cause while there also being significant reasonable doubt as to the defendant's guilt.

Some things are "arguable reasonable doubt", meaning a prosecutor and defense attorney will argue about it and leave it to a jury to decide. But there are also many situations where a prosecutor himself looks at a case and h as reasonable doubt. For both practical (he ain't gonna win, if even he is conceding there is reasonable doubt he knows any conscious defense attorney is going to skewer his case at trial) and ethical reasons in those scenarios prosecutors shouldn't conduct a trial.

A trial is not actually a fact finding endeavor. The fact finding is supposed to happen in the investigation (by both police and the prosecutor.) A trial is not a fact finding process, it is a fact trying process, which is different. You guys realize prosecutors aren't discovering witness testimony for the first time at trial, right? Typically they have conducted many interviews with all material witnesses to the case long before it's ever gotten to trial. Alibi witnesses for the defense and others as well will have often spoken to the prosecutor. Now, since many defense witnesses will be professional witnesses hired by the defense they won't talk to the prosecution prior to trial, and a prosecutor can't know for sure exactly how testimony will go in court (since he doesn't have control over how a witness answers either his or opponent's questions), but in general there aren't as many surprises in a court case as you see on Law & Order. Prosecutors have done their fact finding long before they bring the case, you don't win cases very well if you do it backwards.

sbunny8
11-29-2014, 09:46 AM
Two questions come to my mind.

#1 Isn't it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? Isn't standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?

#2 If it's true that there's no double jeopardy prohibition about convening a second grand jury, then wouldn't releasing all the transcripts to the media be a very strange thing to do? I mean, if you (the prosecutor) planned to have a second grand jury, you'd be shooting yourself in the foot. Or if for some reason you wanted to sabotage any subsequent grand juries, wouldn't that be a good way to accomplish it?

My thoughts are, to answer the OP, that the meaning of this result is that the prosecutor showed the grand jury both sides of the story, convinced them that they shouldn't bother prosecuting because the defense had a decent case, and then tried to make sure that nobody else came along behind and said hey let's try again.

I think this may be a case where the grand jury is supposed to use the "probable cause" standard but they got manipulated into using the "reasonable doubt" standard.

Martin Hyde
11-29-2014, 10:27 AM
Two questions come to my mind.

#1 Isn't it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? Isn't standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?

No, it's actually pretty common for a variety of reasons. For one, Federal grand juries, there is a guideline that if a target of a grand jury investigation makes a request to tell their side of the story that "generally the U.S. Attorney should permit this." It isn't a constitutional or legal requirement, but is a Federal "guideline" designed to mitigate the appearance of unfairness.

For two, grand juries are independent bodies. They may request the presence of the target of an investigation on their own.

For three, lots of targets are also potential witnesses against other targets. Since many grand juries are not used just to investigate a single case against a single person but a lot of cases, it's not unheard of for a prosecutor to want a guy in to talk about X person, while the prosecutor is also looking at that guy himself as a target in a related matter also before the grand jury. Typically when someone is served with a grand jury subpoena and has an attorney, the attorney makes it known in writing that the person intends to assert fifth amendment privileges. For this reason it would often only makes sense to subpoena a target if you believe the target can testify about something unrelated to his own crime but that shows probable cause for another criminal matter before the same grand jury.

#2 If it's true that there's no double jeopardy prohibition about convening a second grand jury, then wouldn't releasing all the transcripts to the media be a very strange thing to do? I mean, if you (the prosecutor) planned to have a second grand jury, you'd be shooting yourself in the foot. Or if for some reason you wanted to sabotage any subsequent grand juries, wouldn't that be a good way to accomplish it?

The way McCulloch used the grand jury is very atypical, but not unheard of, especially in political cases. But however a grand jury is used it's very rare for a prosecutor to ever seek an indictment a second time if the first one is rejected. An indictment is such a low evidentiary bar that even if you could recast the evidence in a way to insure an indictment, all that evidence that resulted in a no bill before the grand jury will be required to be turned over to the defense at trial and will be used to almost certainly defeat any prosecution. So essentially in the rare case of a no bill it's almost nonsensical to try again.

My thoughts are, to answer the OP, that the meaning of this result is that the prosecutor showed the grand jury both sides of the story, convinced them that they shouldn't bother prosecuting because the defense had a decent case, and then tried to make sure that nobody else came along behind and said hey let's try again.

Nothing about the evidence being public really inhibits future prosecutions. There aren't a lot of rules of evidence about what a prosecutor has to show before a grand jury. If another prosecutor called a grand jury on this case and chose to only present evidence indicative of Wilson's guilt, the grand jury would probably indict. They aren't allowed to use outside knowledge of the case in their deliberations.

I think this may be a case where the grand jury is supposed to use the "probable cause" standard but they got manipulated into using the "reasonable doubt" standard.

I'd disagree. They were still held to the probable cause standard but given so much evidence that was conflicting for both sides that it made it difficult to even establish evidence to that standard. Typically grand juries hands are held tightly, they are given the bare minimum amount of evidence required to legally show probable cause and they serve mostly as a rubber stamp body.

Learjeff
11-29-2014, 11:09 AM
#1 Isn't it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? If the movie based on Bugliosi's book was accurate, Charles Manson was asked to testify at his grand jury, but he took the 5th on every question.

Isn't standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?Well, there's "standard" and there's "typical". A friend of mine just served on Federal grand jury, which is two days a month lasting a full year (or perhaps two years). We talked a lot about it, and evidently there's a pretty standard pattern. First, all the cases were about guns or drugs. The guns cases always started with "where was it manufactured? where is it now? Different state? OK, federal case!" It's a rather silly interpretation of the Constitution, IMHO, but that's how the system works. Second, they were definitely the prosecutors' shows, with the prosecutor having wide latitude over what to present and how to present it. But at least the prosecutor had to have something to show, helping to avoid misuse of the courts for harassment.

But as I said, "typical" doesn't necessarily mean "standard".

Ravenman
11-29-2014, 11:25 AM
This is the oddity of a Grand Jury. What's the purpose of essentially a biased one-sided trial (in this case, taking 3 months) to determine if there is supposed to be a trial? That was the original purpose of a trial; the state says "there's probably cause that a crime was committed, let's have a trial". There should be no need for intense navel-gazing, the trial itself is what's supposed to solve the question of "how much evidence"?According to this (http://www.law.cornell.edu/anncon/html/amdt5afrag1_user.html), grand juries are "rooted in the common and civil law, extending back to Athens, pre–Norman England, and the Assize of Clarendon promulgated by Henry II. The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York. Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition."

Your contention that it is more fitting within our legal traditions to skip a grand jury and go right to trial is entirely at odds with the facts.

runningdude
12-01-2014, 10:01 AM
It just means the grand jury didn't find probable cause that the person involved committed any crime. I guess rolled up in that definition would be the second two of your three, a grand jury that doesn't find probable cause would also implicitly reason there is little chance of conviction and certainly no reason for a trial.

In general the court system almost never deals with the issue of determining genuine innocence. That really only seems to come up in cases of appealing criminal convictions to exonerate someone (where new evidence of genuine innocence can often be what gets someone set free.)
...

All States have statutes pertaining to grand juries on the books, only about half the States actually use grand juries regularly. The Federal government uses grand juries for all felonies.

...

The issue is the American system is not at all setup for a trial to be a "place where we learn what really happened." That isn't what a trial is designed for, the trial is a place where the State is trying to convict someone it believes committed a crime. If the State's agent doesn't believe a conviction is possible, our system is set up so that the State's agent really won't want to do the trial. That leaves some people feeling dissatisfied, because we don't really have a judicial process here that is just about "fact finding" other than a grand jury (which is rarely used for that, but legally can be, but which is also conducted in secret.)

Something like a congressional hearing can be a fact finding mission, but we don't really have the equivalent of that for individual criminal matters.

These are both good posts that I wish to endorse and build upon.

The United States has a constitutionally mandated presumption of innocence, which makes it criminal justice system somewhat different than elsewhere in the western world. The criminal prosecutors must submit evidence to judge/jury demonstrating the guilt of the defendant; if there is not enough evidence, the defendant walks.

There is also the requirement to not perjure oneself in court, to knowingly deceive the court by telling a lie. Defense attorneys can be disbarred if they allow their client to to give testimony the attorney knows to be false. Thus defendants plead "guilty" or "not guilty", both of which can be truthful if there is or is not sufficient evidence of guilt respectfully. (Pleading actual innocence when one is guilty can have civil consequences for the defendant and/or his attorneys.) However, the defendant can be spared from even making a plea if there is no probable cause.

The Grand Jury is a first line commonsense probable cause check on the system before a defendant is placed in jeopardy of life or freedom. If twelve or so ordinary citizens, presented with all the evidence with little to no rebuttal cannot agree that someone might have committed a crime, then no indictment is returned. Even though the system is meant to presume innocence, even being placed before the court is psychologically prejudicing; placing someone before the court with only shaky evidence unjustly exposes the defendant to criminal fines, jail time, or worse.

Northern Piper
12-04-2014, 06:39 AM
Thank you for saying this. I tried to explain that multiple times in the past when someone brings up that they only need probable cause to charge someone. I seem to remember saying something similar in the first Zimmerman thread before it became a national story when someone asked what reason they might have for not charging. Trials are a pain in the ass. They are time consuming and there is lots of work involved even in relatively simple cases. Especially if you are in a county like mine where they have a heavy case load and too few judges. The prosecutors do not want to see just probable cause. They want to see a case they can win.
It's not something I don't know. It's just a perversion of the legal system. If it's supposed to be probable cause, that's what it should be, full stop.

No, it's not a perversion. The criminal justice system is built on a series of steps, and to pass each step, the state must meet an increased burden of proof/review. The burden on the prosecutor is higher than the burden on the police, for good reason.

The police themselves have to meet a series of increasing proof. They can't just stop anyone walking down the street. They have to have, at the very least, a reasonable suspicion that something has happened, and that a person may be a witness. That is a very low standard, appropriate for the very beginning stages of an investigation. But, that type of suspicion only justifies a very short detention, to start the investigation. Reasonable suspicion doesn't justify the laying of a criminal charge.

To lay a charge, the police have to meet a much higher standard than reasonable suspicion: that is what probable cause means. They have to have probable cause to believe an offence has been committed by a particular individual, based on their investigation and their understanding of the law.

But once charges are laid, it goes to the prosecutor, and the prosecutors have a different, higher, standard. Prosecutors are not the lawyers for the police, and do not proceed to trial simply because the police have laid a charge. They are independent officials in the criminal trial process, and they must conduct their own assessment of the case, using a higher standard than the probable cause required for a charge to be laid.

In my jurisdiction in Canada, it's usually stated as the prosecutor must be satisfied that "there is a reasonable likelihood of conviction."
(See Federal Prosecuctions Policy: "Proceeding with Charges." (http://www.justice.gov.sk.ca/pp-ProceedingwithCharges)) That assessment is based on a more detailed review of the law than is possible for a police officer, and also on the prosecutor's professional review of the evidence available, in light of the trial process. The witness statements and other evidence may indeed support probable cause, which is the standard the police must meet. But, the prosecutor may conclude that there are difficulties with the case as presented, which make a conviction unlikely.

If there are serious conflicts in the witness statements, for instance, which is certainly the case in the Ferguson case, that may lead the prosecutor to conclude that a conviction is unlikely.
Or, it may be that some of the evidence is inadmissible, due to constitutional or statutory restrictions.
There may be serious credibilty problems with some of the witnesses.
Witnesses may no longer be available to testify, due to illness, death, or having moved.


If a prosecutor concludes that there is no reasonable likelihood of a conviction, they don't just have discretion to stay the charges: they have a duty to stay the charge. If the prosecutors, based on their professional skills and experience, conclude that there is no reasonable likelihood of conviction, then they must stay the charges. The state at this stage must meet a higher standard than probable cause, and the prosecutor has a duty to ensure that higher standard is met. If not, the charges must be stayed.

And note that the standard continues to increase as the matter proceeds. At the preliminary inquiry stage, held before a judge, the prosecutor must lead all the evidence and have the judge make an independent assessment whether there is sufficient cause, in the judge's view, for the matter to go to trial. The judge makes that assessment based on submissions from both the prosecutor and the defence.

Then, finally, at trial itself, the prosecutor must prove the case beyond a reasonable doubt. That is a higher standard still, higher than both "probable cause" and "reasonable likelihood of conviction."

This series of increasing burdens on the state is intentional and a crucial part of the criminal justice system. It is designed to protect the accused from the state. At each step, the state's onus increases, to weed out the cases that do not have merit and to ensure that only the guilty are convicted.

As others have commented, trials are not fact-finding processes. They are not to be used to "clear the air" or to demonstrate that the state has properly investigated a case. Their purpose is for the state to prove that an accused has committed a crime and should be convicted, possibly incarcerated.

If at any stage in the process, the state cannot meet the increasing burden, then it must stop the investigation, the charges, or the trial. Anything less would be a perversion of justice.

Northern Piper
12-04-2014, 06:54 AM
The United States has a constitutionally mandated presumption of innocence, which makes it criminal justice system somewhat different than elsewhere in the western world. The criminal prosecutors must submit evidence to judge/jury demonstrating the guilt of the defendant; if there is not enough evidence, the defendant walks.

[[sigh]]

Before making statements like that, it would be helpful to, you know, actually look at what the constitutional requirements are in other western countries? If you did, you would find that the US is not unique and its guarantee of the presumption of innocence is not different from other western countries.

For instance, you could just take a boo at the Constitution of your neighbour to the north? The Canadian Charter of Rights and Freedoms (http://laws-lois.justice.gc.ca/eng/const/page-15.html) provides:

11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Or you could take a look at the European Convention on Human Rights (http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights), which applies to all 47 members of the Council of Europe.

Article 6 of the Convention (http://en.wikipedia.org/wiki/Article_6_of_the_European_Convention_on_Human_Rights) applies to criminal procedures, and oh, guess what?


Art. 6, para. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

So, before making broad claims of American exceptionalism, you should take into account that at least 48 other western countries guarantee the presumption of innocence as a basic constitutional principle.

runningdude
12-04-2014, 11:13 AM
[[sigh]]

Before making statements like that, it would be helpful to, you know, actually look at what the constitutional requirements are in other western countries? If you did, you would find that the US is not unique and its guarantee of the presumption of innocence is not different from other western countries.

For instance, you could just take a boo at the Constitution of your neighbour to the north? The Canadian Charter of Rights and Freedoms (http://laws-lois.justice.gc.ca/eng/const/page-15.html) provides:

...

Perhaps I could have added a qualifier "historically somewhat different", but the presumption of innocence was a direct rejection of the European practice, and retains a broader meaning here than elsewhere.

Northern Piper
12-05-2014, 06:36 AM
Really? Odd, then, that the drafters didn't think to put the presumption of innocence into the Bill of Rights. It's not mentioned there at all. (Unlike the French Declaration of the Rights of Man (http://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen) of 1789,which predates the Bill of Rights by two years. The Declaration expressly states: "As all persons are held innocent until they shall have been declared guilty...")

Odd as well that if it was such a fundamental rejection of European practice, that it was not considered by the Supreme Court until 1895, in the case of Coffin v. United States (http://en.wikipedia.org/wiki/Coffin_v._United_States). And in that case, Justice White for the Court relied heavily on Roman civil law, Catholic canon law, and English common law for the basis for the presumption of innocence.

Odd as well that legal historians have pointed out that the presumption of innocence is deeply rooted in European civil law, and developed concurrently with the principle in the English common law, which is the main source for the presumption, historically, in the United States. See for instance: Innocent Until Proven Guilty: The Origins of a Legal Maxim (http://faculty.cua.edu/pennington/Law508/InnocentGuilty.htm). The author of that article states: "Innocent until proven guilty" cannot be found in any English court case or any jurisprudential treatise before ca. 1800 --- at least I have not yet found it in one.

He adds that the earliest statement he can find of the principle is a commentary by a French cardinal, writing about the principles of the ius gentium, or natural law, in the 14th century:

Then he formulated an expression of a defendant’s right to a trial and to due process with the following words: a person is presumed innocent until proven guilty (item quilbet presumitur innocens nisi probetur nocens)

Bricker
12-05-2014, 08:21 AM
This is the oddity of a Grand Jury. What's the purpose of essentially a biased one-sided trial (in this case, taking 3 months) to determine if there is supposed to be a trial? That was the original purpose of a trial; the state says "there's probably cause that a crime was committed, let's have a trial". There should be no need for intense navel-gazing, the trial itself is what's supposed to solve the question of "how much evidence"?


This brilliantly written and highly insightful (http://www.straightdope.com/columns/read/2256/who-invented-the-grand-jury) SDStaff article may be of some interest.

Northern Piper
12-05-2014, 08:22 AM
:)

Bricker
12-05-2014, 08:31 AM
Double jeopardy only applies to a trial, which this is not.

Absolutely correct.


Another Grand Jury could be convened, or the county prosecutor could choose to indict without a Grand Jury, but I think that's about as likely as me being elected President of the United States as a write-in candidate.

Err... somewhat correct as well, but worth pointing out that in New York, the law requires that good cause be shown and a judge's permission obtained before a second grand jury can be presented with a bill of particulars for which a prior grand jury refused to return an indictment. Also worth mentioning that unless the accused consents, New York requires a grand jury to indict before a felony case may be tried. I suppose the prosecutor could proceed on a misdemeanor charge, though.

Two questions come to my mind.

#1 Isn't it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? Isn't standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?


Yes, you're wrong: dramatically so.

In New York, the target of a grand jury must by law be given the opportunity to testify. The failure to provide that opportunity is grounds to quash any resulting indictment. (And, indeed, that quash triggers CPL § 210.20(4), the law I mentioned above requiring permission from a judge to re-present the charges to a new grand jury.)


#2 If it's true that there's no double jeopardy prohibition about convening a second grand jury, then wouldn't releasing all the transcripts to the media be a very strange thing to do? I mean, if you (the prosecutor) planned to have a second grand jury, you'd be shooting yourself in the foot. Or if for some reason you wanted to sabotage any subsequent grand juries, wouldn't that be a good way to accomplish it?


Not really, no. Ultimately the grand jury testimony would be discoverable by the defense. In what specific way do you believe the future prosecution is prejudiced?


My thoughts are, to answer the OP, that the meaning of this result is that the prosecutor showed the grand jury both sides of the story, convinced them that they shouldn't bother prosecuting because the defense had a decent case, and then tried to make sure that nobody else came along behind and said hey let's try again.

I think this may be a case where the grand jury is supposed to use the "probable cause" standard but they got manipulated into using the "reasonable doubt" standard.

The instructions given to the grand jury are public. Which instructions do you believe were flawed?

Clothahump
12-05-2014, 08:35 AM
How final is a Grand Jury "acquittal"? All explained in all the accounts, Wilson will now never be charged. Is that for certain? Could a prosecutor charge a suspect with a crime even after a GJ declines to indict? Could a prosecutor call for a new GJ if the first GJ declines to indict? There's nothing like double-jeopardy protection after a GJ finding, is there?

The prosecutor can certainly refile with a new grand jury, but the odds are it won't fly with them either. It is a rare case indeed where a second GJ indicts after the first one didn't.

doreen
12-05-2014, 09:20 AM
Two questions come to my mind.

#1 Isn't it unusual, perhaps absurd, to allow the defendant himself to testify to the grand jury? Isn't standard procedure to have just the prosecutor talk to the grand jury and not even let the defense attorney into the room? Am I wrong about this?
You're mixing up two different issues. It is indeed unusual for the defendant to testify before the grand jury in NY, but it is not a matter of the prosecutor allowing the testimony or not. The defendant is always permitted to testify - but he or she must waive immunity to do so. There is often little benefit in the defendant testifying , so it is uncommon.



( And in NY, IIRC the defense attorney is permitted in the room while the defendant is testifying , but may not participate)

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2018 STM Reader, LLC.