Grand Juries
posted by Jessica C. Durden
Tags: In the news 

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Recently, several controversial police-involved shootings have raised questions about the way grand juries function in our criminal justice system.  This past week, protests erupted when the grand jury deliberating the case of Officer Daniel Pantaleo did not return an indictment.  Officer Pantaleo is a Staten Island police officer accused of killing Eric Garner with a department-banned chokehold in July 2014. To better understand situations like Eric Garner’s, at least from a legal perspective, it is worth reviewing a) who is the grand jury and what do they do, b) how do they do it, and c) what that means for defendants.

Who is the grand jury, and what do they do?  Here in Jefferson County, a grand jury is composed of 12 members of the public and six alternates who serve for one month.  Grand jury hearings are absolutely confidential.  No one but the grand jurors themselves may be present during their deliberations, and only a select few parties may be present for the presentation of charges.  The grand jury is both an investigative body and an accusatory one.  This means that a grand jury may be called to gather evidence, but their primary function is to find cause to indict individuals on felony charges. 

How does the grand jury work?  There’s a saying that a prosecutor can indict a ham sandwich for murder.  Because the standard of proof for a grand jury is so low, this is very nearly true.  In Kentucky, the Rules of Criminal Procedure dictate that the grand jury “shall find an indictment where they have received what they believe to be sufficient evidence to support it.”  Effectively, this means that the grand jury has to find probable cause to indict a person.  Probable cause is nothing more strenuous than “more likely than not.” Prosecutors present felony cases to the grand jury, typically through the testimony of the arresting police officer and any witnesses to the alleged crime.  Subpoenas may be issued at the request of the prosecutor or the grand jury itself. If, based on the evidence presented by the prosecutor and the witnesses for the Commonwealth, the grand jury believes it is more likely than not that the defendant committed the crime, they return an indictment.  If they do not find it so, they can return “no true bill.”

What does this mean for defendants?  First of all, it is worth noting that the Commonwealth has no particular obligation to tell a defendant he or she is facing investigation by a grand jury.  In fact, the defendant has no delineated right to appear at the grand jury.  In Kentucky, if the defendant knows he or she is under investigation, they may contact the Commonwealth’s Attorney and ask to present evidence before the grand jury.  This is merely a request; there is no Constitutional basis to require the grand jury to hear from the defendant.  In fact, many defense attorneys do not want their clients to speak at grand jury; any statement made by the defendant at the grand jury may be used against him or her at a later court appearance.  Finally, even if the grand jury returns “no true bill,” the Commonwealth can continue to re-present the case at a new grand jury as many times as it wishes.  Unlike trial, where double jeopardy attaches, grand jury is a nearly unlimited opportunity for a prosecutor.

Of course, none of this “solves” why the grand jury in Staten Island decided the way they did.  Reasonable minds could say the no true bill conclusively demonstrates that no probable cause exists to indict, or other reasonable minds could suggest the decision reflects a larger fracture in our country’s criminal procedure.  Either way, it is worth remembering that the grand jury merely investigates and accuses—they are not the final arbiters of “guilty” or “not guilty.”

If you or someone you know is facing criminal charges, it is vital to consult with an attorney to navigate the process with you.  Contact our office if you have questions or need assistance.