Criminal Justice

There’s nothing grand about grand juries

(A version of this piece was posted in Medium.)

If the decisions to not indict officers Darren Wilson and Daniel Pantaleo for the deaths of Michael Brown and Eric Garner taught us anything, it’s that Americans have grave misconceptions about the role and work of grand juries.

In the wake of the Ferguson and Staten Island non-indictment decisions, some outlets rushed to note that the grand juries “cleared” Wilson and Pantaleo of wrongdoing, while social media users proclaimed that the “jury had spoken.” Rep. Peter King, for his part, urged New Yorkers to “respect the decision.”

All of this is misinformation because grand juries have nothing to do with justice.

A cornerstone of any system of justice is due process. But grand juries observe none of the due-process safeguards we associate with Law & Order and that are practiced in criminal courtrooms across the country. Not one.

Jury trials are public; grand juries are secret. Jury trials are overseen by a judge; grand juries have no judge. Jury trials are adversarial, with prosecutor and defense attorney going head to head; grand juries are run entirely by the prosecutor. A jury trial assesses guilt at a high standard of proof; a grand jury only assesses whether charges are warranted at a very low standard of proof.

In chart form, the differences between a grand jury and a jury trial are even starker:


The chart shows a grand jury’s function is a very simple one: to get you from the first row to the second row. The second row is what we typically associate with justice.

Prosecutors have absolutely nothing to gain with an indictment—it is such a routine process, that thousands are issued by grand juries on a daily basis, in a matter of hours, and on the strength of very little evidence.

This routineness may explain why the Supreme Court has given grand juries a very short shrift. For one, the court has never recognized a “right” to a grand jury. The Bill of Rights may mention it by name, but the grand jury is not regarded the same way the right to remain silent or the right to an attorney in a criminal case are regarded. These rights are so important, the Supreme Court has systematically applied them to the states to protect the rights of the accused.

But not the grand jury; the Supreme Court has specifically declined to impose it on local governments. That means a state prosecutor can get away with providing no grand-jury review of criminal charges against you, and you’d be out of luck. You can’t sue the state because it didn’t convene a grand jury to review the evidence against you. To date, only about half the states still use grand juries.

Associate Justice Antonin Scalia, known for his originalist view of the Constitution, also thinks little of grand juries. Short of dismissing them outright, he once wrote about them at length in United States v. Williams, a 1992 case involving a man charged with loan fraud.

The short of Scalia’s view: Grand juries have no connection at all to the apparatus of justice. Think first row in the chart above. Scalia called this “operational separateness.”

In denying the man’s arguments, Scalia wrote that “it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure.”

Absent a judge’s oversight, it’s no surprise prosecutors across the country call the shots during grand jury proceedings. That’s precisely what happened in the Michael Brown and Eric Garner cases. Not only did the prosecutors act as parties, advocates, and judges during their presentations—which is normal—but they took an unusually long time to make their case, overwhelmed grand jurors with mountains of evidence, and even asked the accused, Wilson and Pantaleo, to testify. All of this is abnormal.

And because of these abnormalities, the non-indictments in both cases speak louder about systemic problems with grand juries and prosecutors than with the justice system. In this context, the chants of “No justice, no peace” mean something else: the wheels of justice never even had a real chance to turn.


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