The Fiction of Grand Jury Independence: My Proposed Solution to Assembly Line Justice
The criminal justice system acts as an insulated penal institution, rather than a transparent system of justice. Prosecutors, the most powerful actors in the legal system, hold considerable blame for the function of the legal system. They choose to wield their power punitively and without discussion of counterarguments, except for when prosecuting violent agents of the state. I believe that combining prosecutors’ offices and public defenders’ offices into one entity and requiring attorneys to serve as both prosecutors and public defenders would change how the system operates and make it a more fair system.
Prosecutors’ power is centralized in their vast discretion to choose what charges, if any, to bring against an accused person. Most people’s first interaction with the legal system is with police officers, but it is prosecutors who decide who must argue for their freedom while others walk away from an accusation without consequences. In about half of the states, there is an extra step required when prosecutors’ charge an individual with a felony: prosecutors must convene a grand jury. Grand juries are presented with evidence and decide if there is probable cause to indict an accused person. If a majority of the members of a grand jury vote that there is probable cause to believe the accused person committed the crime, then the case proceeds to the next step in the process.
The legal requirement for grand juries is part of the Fifth Amendment. Theoretically, it serves as another means by which regular citizens have a say in the criminal justice system and a check on institutional power. The Supreme Court has even referred to grand juries as “serving as a kind of buffer or referee between the Government and the people.” The idea behind this function of grand juries is that it is a significant burden for a person to have to defend themselves from accusations by the United States government. The grand jury’s role is to ensure that the government (represented by prosecutors) cannot arbitrarily choose any person and make them face a trial on baseless grounds. The grand jury should serve as an effective check to validate that ordinary citizens believe there is probable cause that the accused person actually committed the crime that prosecutors allege.
In reality, grand juries are no longer an actual check on prosecutorial power. Instead, they are commonly referred to as a prosecutor’s “rubber stamp,” in that they indict anyone prosecutors want to charge. In 2010, federal prosecutors convened 162,000 grand juries, and grand juries only voted not to indict in 11 of them. There is a saying that prosecutors could get a grand jury to indict a ham sandwich. This is because the rules for grand juries are incredibly favorable to prosecutors. Prosecutors present the members of a grand jury with evidence and witness testimony, but unlike a trial, there is no judge and no opposing attorney. Therefore, the prosecutor conducts the proceedings both as an advocate for the government’s position and as a legal advisor to the people on the grand jury. With this unconstrained power, it is not surprising that prosecutors are able to convince grand juries to vote in accordance with what they want.
Additionally, the Supreme Court has established that there are very few restrictions on what evidence prosecutors can present to grand juries. Prosecutors can present hearsay to grand juries, which the Court acknowledged may not be “adequate or competent evidence,” but ruled that it is still a valid basis for an indictment. Prosecutors can also present evidence to grand juries that would not be admissible in a trial, including evidence that was obtained illegally. Finally, even though prosecutors have an obligation to turn over any exculpatory evidence to the defense, the Supreme Court ruled that they do not need to present that evidence to a grand jury. In other words, if prosecutors have access to evidence that could show that the accused person is innocent, it would be a violation of the due process clause to hide that evidence from the person’s defense attorney, but it is completely permissible to hide it from a grand jury in order to get an indictment.
There is one notable exception to the rule that prosecutors always get indictments. Contrary to all other cases, police officers are almost never indicted by grand juries. Prosecutors maintain close relationships with police officers and shield them from criminal prosecution. In Dallas, Texas, grand juries voted not to indict police officers accused of unjustified shootings 80 times between 2008 and 2012, while only voting to indict a police officer once. In order to shield police officers from accountability, prosecutors conduct grand jury proceedings against police officers entirely differently from the way they do for other accused individuals. Instead of providing a one-sided case for why the grand jury should indict the accused person, in grand jury proceedings against police officers, prosecutors suddenly feel compelled to provide a complete picture of all the available evidence.
After Daniel Prude was killed by police officers in New York, the prosecutors “chose to present both sides of the case, effectively acting as prosecution and defense and telling the grand jury upfront that its purpose was to investigate the facts, not necessarily to indict.” The lawyer for one of the police officers said that the prosecutors presented the case as he would have in trial. Prosecutors acting as defense attorneys for the police is not unique to this case; when the transcript was released, it was discovered that prosecutors acted the same way in the grand jury proceedings against the officer who killed Michael Brown. One scholar even accuses prosecutors of using grand juries as a tool to avoid public responsibility for failing to indict police officers.
I propose addressing this issue by combining prosecutors’ and public defenders’ offices and requiring that attorneys rotate and serve in both positions. The fact that prosecutors choose to act like defense attorneys in grand jury proceedings that evaluate police officer defendants lends credence to this proposed idea; clearly, attorneys who are in prosecutorial roles and able to also fulfill the roles and responsibilities of public defenders, given the motivation to do so. This one-office structure would change the relationship of prosecutors to accused individuals and might ultimately result in reverting grand juries back to the independent bodies they were meant to be. Currently, many prosecutors treat grand juries as nothing more than a formality in the process of charging an accused person with a crime. As a result, they are inclined to present only enough evidence to secure an indictment. If prosecutors also had to serve as public defenders, they would have a greater appreciation for the value of exculpatory evidence and they would be less likely to dismiss evidence that does not match their version of the story.
With this attitude change, prosecutors would view grand juries less as a formality and more as a test of the case. By presenting the evidence that would be introduced at trial — including any exculpatory evidence and excluding hearsay or evidence obtained illegally — prosecutors could get an unbiased, outsider’s opinion of the case, like a mock trial. The grand jury’s burden of proof to indict is still much lower than a trial jury’s burden to convict, so cases in which the person could have committed the crime would still go to trial, while cases in which there is just not enough evidence to believe they might have committed the crime would rightfully be stopped from proceeding all the way to a trial. (There is no double jeopardy for grand juries: if the prosecutor believes they did not present the evidence well enough or if more evidence is found, they can simply convene a new grand jury and start the process again.) This more holistic use of a grand jury would save resources by ending cases in which there is not enough evidence to prove probable cause and would serve as ordinary citizens’ genuine check of the legal system.
The one-office structure would also change the relationship between prosecutors and police officers. When prosecutors no longer choose to willfully shield police officers from criminal liability for their actions, they will approach grand juries more honestly. Even in the face of the inordinately high legal standard required to convict police officers, when police officers use excessive force to brutalize people, the legal system should require them to publicly defend their actions to a group of impartial citizens. When prosecutors are no longer incentivized to keep police officers from facing consequences, more officers will be indicted and made to stand trial for police brutality and unjustified shootings. This will both lead to more just verdicts and also increase people’s faith in the function of the legal system.
