The Professor
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- Mar 4, 2011
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It is possible that a grand jury will indict officer Wilson. This is because grand juries are not concerned with determining guilt or innocence, but only whether there is probable cause to send the case to trial. Further, the grand jurors hear only the evidence that the prosecutor elects to present. Defense counsel does not participate in such hearings. I found what I thought were two good links that explain the grand jury process.
“The purpose of the grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to prosecute someone for a felony crime. The grand jury operates in secrecy and the normal rules of evidence do not apply. The prosecutor runs the proceedings and no judge is present. Defense lawyers are not allowed to be present in the grand jury room and cannot present evidence, but may be available outside the room to consult with witnesses. The prosecutor and the grand jury members may not reveal what occurred in the grand jury room and witnesses cannot obtain a transcript of their testimony.”
What Are Grand Juries
“In carrying out its two functions of reviewing criminal charges which have been brought by police and prosecutors and conducting investigations of possible criminal behavior, the grand jury meets in secret, behind closed doors. Its proceedings are usually one-sided, and are very different from a trial. Unlike a public trial, the accused person is not present (unless he or she is called as a witness), nor is his/her counsel present (even if he is called as a witness). Also, witnesses are not cross-examined. Not even a judge is present in the grand jury room, although a judge will be contacted if a witness refuses to answer a question and the prosecutor wishes to cite the witness for contempt.
“The prosecutor presents the state's case by asking the witness questions. The grand jurors also may ask questions, but neither the actual eyewitness to an alleged crime nor the alleged victim of that crime need to appear as witnesses. The rules that apply in court to exclude most hearsay evidence (evidence provided by someone who did not actually witness the crime) do not apply in the grand jury room. Therefore, a police officer may simply testify as to what eye-witnesses and alleged victims have said.
“Further, information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial. Finally, even if a prosecutor knows of information which would help show that the accused person is innocent, he is not required to present it to the grand jury. So, while two sides are presented in a trial, it may be that only one side will be presented in a grand jury proceeding.”
OSBA How Does a Grand Jury Operate
There is no doubt that the grand jury is one sided. Defense lawyers often use the phrase that it is “easy to indict a ham sandwich” using a grand jury. There is much truth in this statement. In the Ferguson case, there are 12 grand jurors and it takes only nine to indict so an indictment is possible.
HOWEVER:
Even if there is an indictment, any calm in Ferguson will be temporary. Getting an indictment is easy but a obtaining a conviction will be difficult. In a jury trail every one of the 12 jurors must vote the same way, otherwise there is a hung jury. Given that the defense only has to prove “reasonable doubt” for an acquittal, I cannot imagine a conviction in this case. There is just too much evidence – including forensic findings and eyewitness testimony – in Wilson's favor to justify a guilty verdict.
I would be astonished if the defense did not move for a change of venue (having the trial moved to another city). In my humble opinion the motion should be granted.
“The purpose of the grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to prosecute someone for a felony crime. The grand jury operates in secrecy and the normal rules of evidence do not apply. The prosecutor runs the proceedings and no judge is present. Defense lawyers are not allowed to be present in the grand jury room and cannot present evidence, but may be available outside the room to consult with witnesses. The prosecutor and the grand jury members may not reveal what occurred in the grand jury room and witnesses cannot obtain a transcript of their testimony.”
What Are Grand Juries
“In carrying out its two functions of reviewing criminal charges which have been brought by police and prosecutors and conducting investigations of possible criminal behavior, the grand jury meets in secret, behind closed doors. Its proceedings are usually one-sided, and are very different from a trial. Unlike a public trial, the accused person is not present (unless he or she is called as a witness), nor is his/her counsel present (even if he is called as a witness). Also, witnesses are not cross-examined. Not even a judge is present in the grand jury room, although a judge will be contacted if a witness refuses to answer a question and the prosecutor wishes to cite the witness for contempt.
“The prosecutor presents the state's case by asking the witness questions. The grand jurors also may ask questions, but neither the actual eyewitness to an alleged crime nor the alleged victim of that crime need to appear as witnesses. The rules that apply in court to exclude most hearsay evidence (evidence provided by someone who did not actually witness the crime) do not apply in the grand jury room. Therefore, a police officer may simply testify as to what eye-witnesses and alleged victims have said.
“Further, information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial. Finally, even if a prosecutor knows of information which would help show that the accused person is innocent, he is not required to present it to the grand jury. So, while two sides are presented in a trial, it may be that only one side will be presented in a grand jury proceeding.”
OSBA How Does a Grand Jury Operate
There is no doubt that the grand jury is one sided. Defense lawyers often use the phrase that it is “easy to indict a ham sandwich” using a grand jury. There is much truth in this statement. In the Ferguson case, there are 12 grand jurors and it takes only nine to indict so an indictment is possible.
HOWEVER:
Even if there is an indictment, any calm in Ferguson will be temporary. Getting an indictment is easy but a obtaining a conviction will be difficult. In a jury trail every one of the 12 jurors must vote the same way, otherwise there is a hung jury. Given that the defense only has to prove “reasonable doubt” for an acquittal, I cannot imagine a conviction in this case. There is just too much evidence – including forensic findings and eyewitness testimony – in Wilson's favor to justify a guilty verdict.
I would be astonished if the defense did not move for a change of venue (having the trial moved to another city). In my humble opinion the motion should be granted.