(I posted this in another thread where it’s likely to go ignored or derail the original discussion. I think it’s worth its own serious consideration.)
Can anyone list notable grand jury findings that were found grossly incorrect by subsequent trial or revelations? Let’s limit the question a bit to keep it from rambling too far afield:
[ul]
[li]I assume and recall of my own memory that grand jury findings leading to an indictment have a variety of outcomes; let’s limit that side to indictments that were found at trial to be largely false or baseless.[/li][li]On the other side, what grand jury dismissals have been found to be in error, in that it was found later, conclusively, that an indictment should have been issued?[/li][/ul]
Definitive cases of the modern era, excluding those of the last year, solicited. What’s the batting average of the grand jury system in difficult and murky cases?
Well, there’s bound to be a great disconnect between perceived the “false positives” and “false negatives”, so it’s hard to compare those two categories.
It’s been noted that Grand Juries are very much controlled by the prosecutor who can present what evidence he chooses, and that this usually means that a Grand Jury will indict a ham sandwich (except when the defendant is a policeman). This seems to imply that a fair number of indicted defendants will be acquitted at trial. So we should expect to see a fair number of “false positive” indictments. This is bad news because of all the horror stories one reads about people being dragged through the Grand Jury system over petty allegations.
On the other hand, it must be very difficult to have any good statistics about how many “false negatives” there are. When a Grand Jury fails to indict, that’s often the end of the case. As seen in all the Brown and Garner discussions, there is a line of thinking that the Grand Jury decision is definitive, which allows no possibility of a “false negative”. But if we assume that “false negatives” do in fact sometimes happen, we are faced with the dilemma: There is no way to determine when that has happened. Only in some peculiar situations (e.g., when further information comes to light, or when public protests force an additional investigation) would it even be possible for a false negative to become known. Thus, we have may have a fair number of Grand Juries failing to indict (especially when the defendants are policemen, who are generally not ham sandwiches), but no way to know how many of them are true and how many are false.
Please forgive my naivete, but are you suggesting that when the defendant is a policeman, the prosecutor deliberately presents a weak case to the grand jury?
(Recently, I have been trying to figure out how a grand jury would EVER fail to indict, given that the defense is never given an opportunity to rebut the prosecutor’s case. A deliberate “pulling of punches” is the only answer I can come up with, but my hope is that someone can offer a less-cynical answer.)
Well, I may or may not be suggesting that at my own initiative. But, in the light of all the recent high-profile cases, there are certainly a lot of people who are suggesting that.
Now, in general, the general public and news media aren’t allowed to know that went down in the Grand Jury room. So indeed it may boil down to a massive outpouring of cynicism, which you yourself acknowledge here. In the Brown case, the transcripts were released, and in the Garner and Rice cases, there was video for the whole world to see.
So yeah, there’s more than a bit of cynicism driving the question.
Just because the routine use of the a grand jury is to show the state has the minimum probable cause to go forward does not mean it is always used that way. The grand jury can be a powerful entity. How it is sometimes used is as a way to distance the prosecution from a case that may seem to contain a conflict of interest. In some jurisdictions most or all police shootings are put in front of a grand jury so that an impartial body looks at the evidence. In those cases the GJ gets more information and hears from many or all witnesses. Also the GJ can usually ask questions directly to the witnesses. All so an independent jury of citizens can make an impartial decision. But for some reason that is now a bad thing.
Not sure I understand the question–or that the question properly construes the criminal justice system.
On the first point, after an indictment, the Defendant is arraigned, and has an opportunity for a preliminary hearing, at which he may attempt to quash the indictment–ie, throw it out and dismiss the case. If he waives that opportunity, or is unsuccessful in the attempt, then the indictment is presumptively “valid” in that there is enough evidence to establish probable cause that a crime was committed by the person charged. That evidence may or may not rise to the level of proof beyond a reasonable doubt, but a “not guilty” verdict does not imply that the indictment was improper.
On the second point, the prosecutor can present the case to another grand jury if he’s so inclined–say additional evidence is discovered or he just wants another bite at the apple–so long as the statute of limitations has not expired.
The grand jury is trying to decide whether the prosecution has reasonable evidence to think that a trial should take place; they aren’t trying to determine guilt nor innocence; they aren’t analyzing whether the evidence could beat out the defence’s evidence; nor are they trying to establish that the evidence is conclusive in any way. All they are asked to do is determine if there’s grounds to question the defendant’s guilt. So talking about false positives and false negatives as it relates to guilt is besides-the-point.
If they decided that there wasn’t enough evidence to take someone to court, and later more evidence was found to show that the person was guilty, that doesn’t mean that the grand jury was wrong. Guilt isn’t their job, just the quality of the evidence for a trial.
The GJ is giving a false negative when they say that there isn’t sufficient evidence, when in fact the prosecution had legitimate reason to question the defendant’s innocence, and the answer to that question could only be concluded by a trial. But if they let him go ahead and prosecute the case in court, and the prosecution loses, that doesn’t make the GJ wrong.
I don’t know about other states, but in NY although the defense doesn’t get to call any other witnesses the defendant has the right to testify after waiving immunity. I’ve been a grand juror twice (ten days each time and probably a couple of hundred cases) and in the only two cases I remember where the defendant testified there was no indictment. The defendants weren’t police officers and there was no other reason to suspect the prosecutor was pulling punches. It was just that their testimony was found to be credible although it didn’t directly contradict the prosecution’s evidence. They were charged with the sort of crimes that “everyone” gets charged with ( everyone riding in the stolen vehicle gets charged with unauthorized possession of a motor vehicle, that sort of thing) and their testimony was about how they came to be in that position although they had no knowledge of the crime.
Not exactly directly. The grand jurors can ask the prosecutor to ask the witness a question, and usually he or she does but there were sometimes legal reasons why a question couldn’t be asked- and as I recall, we got some explanation of the reason.
The new saying is that the grand jury will indict a ham sandwich if asked, but not white bread.
In an analysis of the testimony I heard, someone mentioned that the case presented included a lot of conflicting testimony rather than the case against (which would be a reason to go to trial), and most oddly, the prosecutor did not ask for an indictment, something they most often do.
Basically, it looked like the prosecutor was letting the grand jury take the blame for not indicting.
That is not the case in NJ. I have been in front of many grand juries. They can ask direct questions to witnesses. If there are any restrictions on what they can ask it has never come up in any of the cases I have testified on. Most questions have been intelligent and used to clear up the testimony in their mind. Some questions have been really dumb. It usually correlates with how long the jury has been on.
And that “saying” shows a fundamental misunderstanding of the scope of a grand jury.
I’ll try to say it again in a different way.
Usually the prosecutor determines if there is probable cause to continue with a case. Sometimes that happens prior to charges in consultation with police. Sometimes it happens upon review of a case after arrest. The grand jury is then used to confirm the prosecutor’s determination.
In some cases in which the prosecutor’s office may be perceived to have a conflict of interest a grand jury is given much more information and they are used to determine if there is probable cause without the prosecutor making a determination. The police are agents of the state and the prosecutor. They are all perceived to be on the same side. Giving the grand jury the full evidence including being able to see and question all of the witnesses takes that power out of the hands of a perceived biased agent of the law and places it in the hands of a jury picked from the people.
If the prosecutor decided there was no probable cause for an indictment and declined to prosecute how would that look?
If the prosecutor decided there was no probable cause and went forward with charges and a trial that would be unethical at best.
In this area of the country it is pretty common to use the grand jury as a neutral party to determine if police shootings are criminal. I really can’t see the justification for saying that is a bad thing. It is putting that power in the hands of the people. It is better than determining probable cause by whoever can shout the loudest without looking at all the evidence. And for some reason the perception is that the people on the grand jury are somehow inferior to those that would be picked for a petit jury.
Not sure how accurate this is - website claims prosecutor told grand jury originally that law (ruled unconstitutional in1985) said a policeman could legally shoot a fleeing suspect. They corrected that after 2 months, but did not explain clearly.
I think a lot of the anger is because non-police have been charged (and convicted) with a lot less evidence. There was a conflict between eyewitness testimony, ambiguous forensic evidence… that’s what a trial sorts out - not a grand jury.
the point was that in almost every other case in the commenting lawyer’s experience, the prosecutor would ask for an indictment. According to the transcript, the Ferguson prosecutor did not.
Technically speaking, the eyewitness and physical evidence both seem to indicate that Wilson began shooting before Brown started to run away, so the correctness or incorrectness of Tennessee v. Garner wasn’t relevant. Wilson was under threat because of Graham v. Connor, and so what they were told about that case (if anything) should be the key criteria.
But I’ll grant that if you’ve been told that an officer can shoot any fleeing subject, that lowers the bar sufficiently that people would have a hard time understanding where the “reasonable use of force, proportionate to the situation, to bring the situation under control” rule of Graham v. Connor suddenly goes out the window.
Based on the Graham v. Connor test, I would expect Wilson to have been exonerated, and hence even with the correct information, the Grand Jury may have decided as it did. But I’ll grant that the Grand Jury was given bum information, which could have significantly altered their decision. People aren’t fond of changing their path once they’re pretty far down it.
No. As has been pointed out by several lawyers a trial is not to throw things on a wall and see if they stick. It is the prosecutor’s responsibility to ensure he goes forward only with those cases that he has a reasonable expectation of winning. The grand jury is supposed to be a check on the prosecutor. Or in the case of a politically charged case that may have a perceived conflict of interest, the grand jury is used as an unbiased arbiter to see if charges should be pursued.
As Loach notes, a prosecutor has a duty not to maintain a prosecution if there is not a reasonable likelihood of conviction, even if there is probable cause.
You can find this requirement in the US Federal Prosecutions directions:
The Canadian Federal Prosecutions Serviceuses the same standard: “Is there a reasonable likelihood of conviction?” If not the Crown should not set the matter down for trial.
Thus, a criminal trial is not to be used to “clear the air”, or to inquire into a matter of public interest. A criminal trial is one of the most intrusive things that the state can do. A prosecutor should only institute a trial if there is a reasonable likelihood of conviction.
If there are major conflicts in the stories of different witnesses, and competing forensic reports, that all reduces the likelihood of a conviction. If the conflicts in the evidence are serious enough that there is no reasonable likelihood of conviction, the prosecutor should not institute a trial