Grand Juries: A Look Behind the Curtain

An Overview of the Role, Purpose, and Processes of Grand Juries in the Criminal Justice System.

Police Involved in Deadly Shooting in Phoenix, AZ

Tragedy struck home in Phoenix AZ, last week, resulting in the eruption of protests here in the valley.  This, following reports of another fatal officer involved shooting of an unarmed suspect.

According to news reports the police officer approached a vehicle in an apartment complex after being given a tip that a drug deal was taking place in an SUV. After the officer saw a gun and drugs in the vehicle, he gave the suspect several commands.  The suspect failed to obey them, and fled on foot. The officer chased him, and a scuffle ensued.  During the scuffle the suspect reached into his left pocket, for what the police officer claimed he feared was a gun. The officer then fatally shot the suspect. What was later found in the suspect’s pocket was, not a gun.  It was a pill bottle of Oxycodone.  The officer was uninjured.

According to reports the officer is on paid leave, pending the outcome of an investigation in the fatal shooting.

News Update December 9, 2014:  The Medical Examiner’s autopsy revealed that the suspect died of a gunshot wound to the torso, ruling the cause of death homicide. That does not mean that a crime was committed or charges will be filed against the officer. It means that the the suspect died at the hand of another.

Protests continue in Phoenix, at and around the police department.  News reports indicate more protests are planned for tonight and this week.

Unrest in Arizona and around the Country

Meanwhile, around the country, protests continue in several other officer involved fatalities in which the suspects were unarmed.  Heightened discussions surround three key issues: police use of deadly force, racial profiling, and the practice of using Grand Juries to determine whether or not criminal charges will be brought against the officer(s) involved.

Though each of these elements is intertwined, they are fundamentally unique concepts.  All deserve extensive discussion time, and advocacy. Many have expressed a desire to learn more about the Grand Jury process of indictment.  So for now in this article, we will focus on gaining an understanding of the Grand Jury Processes, in Maricopa County and in the United States of America.

My goal is to provide clarity and information regarding the Grand Jury processes, for those who wish to learn more.  And my hope is that by doing so, those who read it will gain an enhanced ability to understand how the Grand Jury process may impact them, their families suspected of a crime. Further, for others my goal is to heighten awareness, and enhance their knowledge of the processes to enable them to formulate educated opinions in serious and deserving discussions.

Purpose of Grand Juries

Grand Juries have been a key element of the criminal justice system for centuries. However, they are perceived by many as being an obscure or hidden process.

There’s good reason for this.  That is because by design, Grand Juries are intended to be secret.  In fact, a suspect is often unaware that they are under investigation for a crime, which is one purpose of the secrecy.

Other reasons for secrecy are to preserve facts and evidence and to make sure it doesn’t disappear, get destroyed, or altered.  The secrecy is also intended to protect the potential suspect’s reputation, if they are not indicted in the charges.

Grand Juries and Jurisdiction over Cases

Grand Juries may be held at the County, State or Federal level.  The primary consideration for jurisdiction will be determined is the nature of the charges.

County Grand Juries consist of at least 12 but not more than 16 jurors.  They hear the evidence presented by the Maricopa County Prosecutor and witnesses they have called. The County Grand Jury decision is based on a simple majority as to whether or not probable cause exists to bring criminal charges.  County Grand Juries typically hear cases involving crimes against victims such as aggravated assault, sexual assault, burglaries; as well as some drug offenses.

State Grand Juries consist of at least 12 but not more than 16 jurors.  They typically hear criminal matters that pertain to the state, at the request of the Arizona Attorney General. These types of offenses generally involve white collar crimes, frauds and schemes, or forgery.

Federal Grand Juries hear evidence by a Federal Prosecutor at least 16 but not more than 23 jurors.  They primarily hear evidence in cases pertaining to serious felony cases for which the United States is a party.  These include cases involving US Constitutional or Federal violations, bank robberies, interstate drug trafficking and sales, violations of Constitution or Federal Laws, crimes on and land owned by the Government.

History of Grand Juries

Like most elements of American jurisprudence, the grand jury has origins in English law. The Magna Carta, signed by King John in 1215, says that four out of 25 barons selected by other barons will report transgressions.

The U.S. Constitution has a guarantee in the Fifth Amendment that no person will be held to answer for a capital or “infamous” crime outside of the presentment or indictment of a grand jury. However, this provision has not been incorporated to the states, meaning it only applies to alleged violations of federal law.

Most states utilize grand juries in some manner. Grand jury procedure at a state law is determined by state laws, which often differ.

One thing that is consistent across states, including Arizona, is that grand juries do not decide guilt. They do not return a “verdict.” They only decide whether probable cause exists to bring a person to trial for a crime.

Laws and the Grand Jury Process

Arizona does not require a grand jury to bring any type of charge against a person. There are two ways that a person in Maricopa County may face felony charges: 1) Through a formal complaint filed by the prosecutor; and 2) through an indictment by a Grand Jury.

A complaint, filed by the prosecutor, initiates a preliminary hearing, in which a judge hears witnesses and evidence to determine whether there is sufficient probable cause for a criminal trial. Complaints are the more common way that people are accused of felonies in Arizona.

A Grand Jury proceeding is, simply put, another tool at the disposal of the prosecutor.  Though it is the judge’s sole discretion to determine if public interest requires the need of a Grand Jury, it is the prosecutor who petitions it pursuant to A.R.S. 21-402 guidelines.    The grand jury hears witnesses and reviews evidence provided by the prosecution. If it determines probable cause exists, it issues an indictment.  

In Maricopa County, the presiding judge of the Superior Court to call a grand jury every four months. The Grand Jurors are randomly pre-selected individuals selected by the jury Commission or Jury Manager pursuant to A.R.S. 21-331 summons to serve on a grand jury panel for the term. The jury commissioner or manager determines the specific number of persons to be summoned for the court location and date.

The Jury commissioner under Arizona law is a clerk of the superior court for those counties, such as Maricopa County.  The Maricopa County Superior Court Judges appoints Jury Commissioners.  In Arizona law those who qualify to serve on Grand Juries must be 18 years or older; be a citizen of the USA; be a resident of the jurisdiction in which a grand jury has been summoned at the petition of the prosecution; whose name and address appeared on a master jury list pursuant to A.R.S. 21-30; has no criminal record of a felony conviction; and is mentally competent.

The term of the jurors is 120 days. A typical grand jury in Maricopa County has 16 members, but can have as few as 12 under law. Nine members must be present for the jurors to deliberate.

The county prosecuting attorney decides what evidence will be presented and what witnesses will be called, and then presents alleged criminal offenses to the grand jury. Unlike some other states, the grand jury in Arizona does not initiate investigations. If a grand juror believes a crime has been committed that has not been presented, they are to go to county attorney or the presiding judge.

The grand jury will review the evidence the prosecution has provided to them.  The evidence does not have to be admissible in court, and there is neither defense attorney nor any opportunity for the person under investigation to object to or challenge the evidence.

The Grand Jury may hear from witnesses, and can call any other witnesses they believe would be helpful to their decision. Both the jurors and the prosecuting attorney have the opportunity to question the witnesses. The person being investigated does not.

In a trial, the accused is not compelled to testify, and rarely does so. In a grand jury proceeding, though, the person may be called. He or she will be sworn under oath. He or she retains the right to remain silent (and must be reminded of that right).

Under Rule 12.5 of the Arizona Rules of Criminal Procedure, counsel for a witness may be present during a grand jury session if that witness is under investigation. However, that person’s lawyer may not speak during the session to anyone other than his or her client. The attorney may advise the person under investigation during his or her testimony.

If the person under investigation wishes to submit favorable evidence to the grand jury, he or she may request to do so. However, the grand jury is under no obligation to consider it.

An indictment requires at least nine of the grand jurors to agree to the charges. This is called a “true bill.” If the grand jury declines to indict the person, it is a “no bill.”

The grand jury will indict a person if they find probable cause that he or she committed a crime. Probable cause is an objective standard meaning that circumstances would strongly justify a prudent and cautious person’s belief that facts are true — in the case of a grand jury, that a crime had been committed.

Grand jury proceedings are secret. If a person is indicted, they do not have a right to know who testified, what they said or what evidence the grand jury considered. Secrecy is enforced to allow witnesses who would be reluctant to speak in a public hearing speak, to prevent a person from interfering with the investigation, to decrease the likelihood that a person being investigated will flee and to protect the identities of people investigated by a grand jury but not indicted.

Grand juries have been criticized for their secrecy.  Historically, they have also been criticized for the tendency of the juries to tilt decisions in favor prosecution. New York Judge Sol Wachtler once famously said a prosecutor could convince a grand jury to indict a “ham sandwich.”  This is because the grand jury is “fed” the evidence from a unilateral perspective, of the prosecution.   Grand juries are simply put, another tool for use by the prosecutor, whose job it is to get an indictment.

Depending on how the evidence or witness testimony is presented, the prosecution almost always has the advantage. So if they truly want to bring charges, it’s rare that they do not get the indictment.

The grand jury proceedings are informal, and the Prosecutor is the orchestrator, attendant, supervisor, and presenter of evidence.   It is inevitable that the Grand Jurors will tilt towards the prosecution, because there are no objections to the evidence made by the criminal defense, and no intervention by defense to have unjustified evidence suppressed.  There is no opportunity for a criminal defense attorney to present challenges to Constitutional Rights violations, or argue other defenses that may apply.

This is why in most cases a suspect ends up getting indicted on the charges.  The Prosecutor’s goal is to see that the Grand Jury finds probable cause to indict the suspect on charges.  Though the Judge is not present during the proceedings, the Judge acts upon the Grand Jury’s decision bring charges and proceed with indictment.

Why Double Jeopardy Rights Do Not Apply to Grand Jury Decisions

Another question that arose in recent weeks is whether protections under the 5th Amendment to the Constitution for Double Jeopardy apply to Grand Jury decisions.  The answer is no. This is because Double Jeopardy rights apply only to charges that have been legitimately prosecuted and resulted in a conviction, acquittal, dismissal, or resolved in pre-trial jury negotiations. The Grand Jury rulings merely provide an opinion as to whether or not there is probable cause for charges to be brought.

Further, even if the Grand Jury does not bring charges, it does not negate the Prosecutor’s authority to proceed with filing a complaint in the charges.  But it is extremely rare to see the prosecution impose this authority over the Grand Jury.

Why the Grand Juries became a Target of Controversy 

This brings us full circle to the current public unrest surrounding recent investigations of police involved fatalities.

Many feel that a trial would have been a more fair process to bring justice than utilizing the Grand Jury because of the due processes in trial, where both prosecution and criminal defense can present their case, where a judge can determine if certain evidence or testimony can be challenged, where constitutional rights violations, and other exculpatory evidence can be presented, and where a formal jury of peers, selected by both the prosecution and defense can decide if the suspect is guilty beyond a reasonable doubt.

This is a court of law young man, not a court of justice.

– Oliver W. Holmes, Jr

Some feel that the Grand Jury process used to hear cases involving police use of deadly force is a conflict of interest and unfair.  This perception is a product of the fact that the prosecution works closely with police to get convictions, so both parties are on the same team so to speak. As a result, in these cases people have expressed concerned about the lack of enthusiasm of a prosecutor when it comes to bringing charges against an officer.

However, the fact is that it has always been difficult to prosecute police officers, even if formal charges are brought. Police have a broad range of authority within their job to use deadly force when necessary.  With few exceptions, they have historically often prevailed in trial.  This is because juries often give law enforcement the benefit of the doubt, and rule in favor of police and public civil servants.

Grand juries were designed a certain way to best serve their purpose.  Its compelling however, that the USA is one of very few countries who use Grand Juries at all. Many either never adopted them to begin with, or have abolished them.

With the heightened controversy, I expect to see vigilance and prudence compel serious discussions about possible legislative proposals, and ballot initiatives for reform.  It’s not easy to change the constitution, so the other thing we can expect is that it will be sometime before we see changes either at state or federal levels.