Using the Grand Jury...

[Jeff_Lichtman]

@Northern_Piper

Circumstantial evidence has its weaknesses, but it can be used in a court proceeding and can be the basis for a criminal conviction.

Yes. Actually, circumstantial evidence can be better than direct evidence. For example, eyewitness identification of a defendant by a rape victim would be direct evidence, while a DNA match from a rape kit would be circumstantial evidence. Eyewitness identification can be unreliable - in many cases a DNA match would be better evidence that the defendant is the actual perpetrator.

[Elendil_s_Heir]

Two fun, and common, explanations for the difference between direct and circumstantial evidence:

If you see little semifrozen flakey bits of water falling from the sky, that’s direct evidence that it is snowing. But if you go to bed one night and your yard is bare, and when you wake up in the morning it is covered in little semifrozen flakey bits of water, that’s circumstantial evidence that it snowed. You didn’t see it snow, but you have reason to think that it did.

If you see Timmy put a cookie in his mouth and chew, that’s direct evidence that he ate the cookie. But if you come into the kitchen and Timmy’s mouth is full, his hand is in the cookie jar, and there are crumbs around his mouth, that’s circumstantial evidence that he ate the cookie. You didn’t see him eat the cookie, but you have reason to think that he did.

[Northern_Piper]

And frankly I think it’s a mistake to eliminate it.

But there are other options for the screening/protecting the accused function than a grand jury.

For example, in Canada anyone accused of an indictable offence has the right to a preliminary hearing. That’s a hearing in open court, in front of a judge, who has all of the constitutional guarantees of judicial independence from the government. (Judges in Canada are not elected and once appointed, can only be removed for clear misconduct, so they have no links ot the government.) The Crown is required to call its witnesses, in open court, and have them testify as to the outlines of the offence. The accused has the right to cross-examine any or all of those witnesses. The defence can call its own witnesses, but rarely does. The judge is then required to review the Crown’s case and to ensure that there is sufficient evidence, which if believed, would support every one of the necessary elements of the offence. If that test is not met, the judge dismisses the charge, and the Crown cannot re-lay it.

So in this system:

1. the pre-charge review is done in open, unlike the grand jury system, which is closed to the public.

2 the Crown is not in charge of the proceedings - the judge is, unlike the grand jury

3. the defence is present and has the right to cross-examine witnesses, unlike the grand jury.

4. a dismissal is final and the Crown can’t try again, unlike the grand jury system.

Now, in most cases, the preliminary judge does commit the accused to stand trial - but that is arguably because this process forces the Crown to get all its ducks in a row, knowing that they have to make the case in public, and they only get one chance at it.

As well, the prelim serves a valuable role for the defence - they get to see a thorough outline of the Crown’s case, including the witnesses, which allows defence to make initial assessments of the strength of the case, and the possible credibility issues of the Crown witnesses. The defence then has several months to prepare their case for trial, relying on the evidence that was called at the prelim.

Personally, I think that’s a superior system for the accused and for the public.

[Northern_Piper]

sorry - for # 1, it should be the “post-charge, pre-trial review is done in open” (missed the edit window by thisss much)

[Uncertain]

@anson2995

First, despite the oft repeated statement that you could indict a ham sandwich, grand juries return a no bill all the time.

How about in a rabbinical court?

[MLS]

@Keeve

The problem I have is this: Yes, you do throw out some cases where the police had not done their homework. But there are other cases that ought to be thrown out, because the defense has a simple and reasonable explanation.

So my idea is that we should either get rid of the grand jury system entirely, or modify it so that the grand jury hears both sides of the story. I do not recall any posting in this thread which offers a reason for excluding the defense from these proceedings.

The defense gets involved after there’s a determination that it’s even necessary to offer a defense. Remember how I said we heard up to a dozen cases per day? We never, on our most busy day, stayed past 12:30 p.m. Add the back-and-forth with defense and you’ve got several days per case instead. There’s a time and place for that; it’s called a trial.

Yes, quite often we were a rubber stamp because, for fear of a “no-bill” the prosecution only brings cases where there is credible evidence to begin with. We have no idea how many cases never even got that far because of a lack of proper evidence.

[rbroome]

The other is why the US bothers with a Grand Jury system if indictments are obtained so easily. First, despite the oft repeated statement that you could indict a ham sandwich, grand juries return a no bill all the time. The idea that they simply rubber stamp the prosecutor is ridiculous. Maybe other who have served on a GJ can chime in.
And the opposite has happened. We had a case in the news here a few years ago where a high-profile case that was in the news a lot went to a grand jury. Terrible as it was, there wasn’t a criminal case-just a really inexperienced and young cop. The grand jury indicted the victims who were killed by the cop. The DA had to publicly refuse to bring the charges in spite of the grand jury’s ruling.

The grand jury is a flawed system. But each level of review provides some protection.