Peter A. Joy, JD, Henry Hitchcock Professor of Law
There is a lot of speculation concerning the grand jury considering whether to indict and charge Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 19-year old man. If the grand jury returns an indictment against Darren Wilson, and if he does not enter a plea, the focus will shift to the trial jury in the case. In both instances, the decision makers will have been twelve randomly picked impartial citizens playing key roles in the criminal justice system.
What we have to understand, no matter what the grand jury does, is that no matter how closely we have been following the investigation we do not have all of the facts. Despite countless newspaper articles, radio and T.V. broadcasts, and innumerable tweets and other social media posts, we do not have all of the facts. The grand jury members, working one day a week without pay, are sorting through the facts and will make a decision whether to indict Darren Wilson based on all of the facts. They are considering medical examinations, forensic reports and statements of witnesses that we know little or nothing about.
While we do not have all of the facts the grand jury is reviewing, there are some important facts about the grand jury that can help us understand the citizens’ role in this case and in other serious cases. Most importantly, we should appreciate that grand juries and trial juries are the foundation of the U.S. criminal justice system and a guarantee of fairness. In most countries, judges alone decide if there is sufficient evidence for a person to be charged with a crime and also determine if the person is guilty. Rather than rely on a single judge, or even a group of judges, our legal system is founded on the belief that the accused has the right to have his or her case decided by twelve unbiased citizens who represent the community. The grand jury and the trial jury stand between the accused and the power of the government, and provide citizen oversight by deciding the facts in criminal cases. Both the U.S. Constitution and the Missouri Constitution guarantee the role of the grand jury, and the grand jury functions as the citizen arm of the court.
The grand jury is deciding whether there is probable cause that Darren Wilson should be formally charged with a serious offense – one or more felonies. The grand jury will be deciding based on evidence presented by two St. Louis County prosecutors, who will also provide information to the grand jury about the law involved. The grand jury is separate from the prosecutor and the police. In deciding whether to indict, the grand jury will be looking for probable cause of a crime, which means that there is some evidence of each of the elements of crime. This is a much lower standard than proof beyond a reasonable doubt, the standard trial juries use to determine if someone is guilty.
In reaching its decision, the grand jury will also consider whether the use of force by Darren Wilson was justified. That was why Darren Wilson was invited to testify. Much has been made about Darren Wilson being invited to testify, but in cases involving defenses such as self-defense, justification, or consent, it is not unusual for the accused to be invited to testify. While some who are accused of possible crimes may refuse to testify, others invited do testify in order to have the grand jury consider their defenses. In that respect, this case is not unique.
Paramount in reaching its decision, the grand jury will consider what Michael Brown and Darren Wilson did, when each acted, and how events unfolded. Physical evidence from the scene of the shooting, inside the police car, and medical examinations of both Michael Brown and Darren Wilson will be important, as will the testimony of witnesses, audio and video recordings, and other evidence.
If Darren Wilson is indicted and charged in the killing of Michael Brown, we will still not hear all of the evidence until there is a trial or a plea in the case. The prosecution will be prohibited from sharing too much evidence with the public because getting all of the evidence in the media before trial could prejudice the case against Darren Wilson and hinder his prosecution. If the grand jury returns no indictment, called a no true bill, St. Louis County Prosecuting Attorney Robert McCulloch has stated that he will seek permission from the court to release as much information as possible so that we may be able to understand the grand jury’s decision.
No matter what the grand jury decides, there is every reason for us to trust in this grand jury. They were chosen long before Michael Brown’s death, and they are representative of St. Louis County. They were also on the job for nearly four months hearing other cases before they started hearing this case, so they are experienced and know their job much better than we do. And, the job of these twelve citizens is to do their best to make a decision based on all of the evidence, and not be guided by public opinion or emotion either for or against returning an indictment.