Ferguson and the Prosecutor's Approach to the Grand Jury

Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below. Grand jury basics. A grand jury is a group of citizens that decides whether there is probable cause to indict individuals suspected of crimes. Sometimes a grand jury considers cases where no charges have been brought yet – where the indictment would be the first charging document in the case -- and sometimes a grand jury considers cases where preliminary charges have already been brought by officers or prosecutors, subject to later review by the grand jury. Grand juries normally consider cases when prosecutors submit the cases to them. (In some states, like North Carolina, grand juries occasionally identify cases on their own using a procedure called a presentment.) Historically, the grand jury served “a vital function in providing for a body of citizens that acts as a check on prosecutorial power.” United States v. Cotton, 535 U.S. 625 (2002). In other words, if a prosecutor were overzealous, the grand jury could rein the prosecutor in by refusing to issue indictments. In recent years, commentators have noted that most grand juries issue indictments in virtually every case they consider. (The Charlotte Observer ran this [...]