Grand Juries: A Balancing Act

#157377203 / gettyimages.com

No matter your opinion on the ongoing events in Ferguson, Missouri, it is safe to say that this week’s grand jury decision not to indict Darren Wilson has thrust the topic and function of the grand jury into the national spotlight.  While the purpose and function of a grand jury is nothing new to those practicing criminal law, especially those prosecutors tasked with handling grand jury presentations, it never hurts to review some basic strategies of grand jury presentation.  For while a good prosecutor might be able to indict a ham sandwich, it is also possible to make mistakes that could cost an indictment.

While the federal level boasts two different types of grand juries:  “regular” grand juries tasked with determining indictments, and “special” grand juries tasked with investigatory functions, most of the general public are familiar with the former.  Perhaps the most important thing to remember is that even though grand juries require a lower burden of proof to indict—probable cause—than to convict, and even though there is no judge or defense attorney, they are still juries and they can still face the same problems as petit juries.

Don’t confuse the jury.  This should go without saying—confusing people in general is usually not the best way to make a point, but one should especially be careful to avoid confusing their juries.  Juror confusion is nothing new, in fact there are journal articles on the issue dating as far back as 1975.  This is especially important to remember in grand jury proceedings, as the ability to prosecute a felony case rests on the grand jury’s approval of an indictment.

It is important to remember to create a narrative.  This is something that one Law360 article stresses to the point that failure to do so is considered third in the “Top Five Mistakes to Avoid In front of the Jury.”  Simply conveying the State’s position is not enough if you want a jury’s attention—it also has to tell a story.  To this end it is also important not to sacrifice clarity for said story.  All jurors are laypeople who are not as well versed in the law as practitioners.  A clear, streamlined presentation which balances the need for information and disclosure is key when the required threshold is that of probable cause.  While it might seem like a good idea to get as much information before the grand jury as feels appropriate, the prudent prosecutor would do best to remember that overburdening the grand jury, even with helpful information, could prove fatal to an indictment. 

As grand jury indictments are based on probable cause, the grand jury is likely trained to only make probable cause determinations.  In fact, some grand juries may arguably be already inundated with all of the cases and training that they receive—one organization conducts civil grand jury trainings which take two days and 300 pages of material—that presenting too much or making too many legal arguments can be just as damaging as not presenting enough.  Presenting to a grand jury may sound like a balancing act, but if done correctly, this balancing act will ensure more accurate decisions while avoiding a potentially fatal pitfall.

Trevor Addie
Blog Editor, Criminal Law Practitioner

Emily Stewart contributed to the focus of this blog post.