Grand Juries: The System Is Biased

Four months ago, I was kindly invited by the county to sit on a grand jury. The whole thing turned out to be more interesting than I had expected, and while I’m not allowed to talk about deliberations or the internals of the process, to allow jurors to speak freely inside the courtroom, I wanted to share a few thoughts.
First of all, this is a grand jury. The kind you’re probably thinking of, the 12 Angry Men type of jury of your peers, is a petit jury. The grand jury looks at an indictment and decides whether there’s probable cause to go forward to trial. That is, the petit jury decides whether the defendant did what they’re accused of doing. The grand jury merely decides whether there’s something going on; whether it’s worth having a trial at all.

One of the first things that struck me is how biased the system is in favor of bringing a case to trial.

  1. To start with, the evidentiary bar is much lower: instead of “beyond a reasonable doubt” or “preponderance of the evidence”, which a petit jury uses, the grand jury merely looks for “probable cause”. Basically, was a crime committed, and is there reason to think that the defendant may have committed it? The bar is low, so it’s easy to pass. Basically, this just excludes cases where a cop arrests someone for looking funny.
  2. The cases are introduced by a state prosecutor, who also educates the grand jury in legal matters (e.g., explaining the difference between first and second degree assault), and are read by another state employee, such as a police detective. That is, the state presents the (alleged) facts of the case, the state provides legal guidance, and no one is there to speak for the accused. It’s a bit like when your car mechanic tells you that you need a new part, and is also the person who explains what that part does.
  3. Related to the above: the prosecutor decides which cases to bring before a grand jury, and when. This isn’t a bad thing, as it means that the prosecutor doesn’t push a case before it’s ready, but it does mean that by the time a case gets to a grand jury, it’s probably good to go.
  4. As I understand it, a petit jury has to render a unanimous verdict. That is, twelve out of twelve people have to agree. In a grand jury, on the other hand, twelve out of twenty-three people (at least, in this county) have to agree. That is, almost half of the jury could have reservations, and the case could still move forward.
  5. Not all errors are equally costly: there are two types of mistake a grand jury can make: it can accept a case with no merit, or it can reject a case that ought to go to trial. In the first case, someone walks who should have gone before a judge, and possibly sent to prison. In the second case, someone has to waste a few hours or days getting their case thrown out of court. The impact of the two types of error is not the same, and so there’s the temptation to play it safe and let iffy cases proceed.

To give you an idea of how biased the system is, the state prosecutor who conducted orientation said that grand juries do dismiss cases, maybe two or three times a year. A year. I estimate that over 2000 cases a year get presented to grand juries in that courthouse, so that’s a rejection rate of about 0.1%.

I’m not saying that the system is broken, or hopelessly unjust, or anything like that. Just that the way things are set up, if you can get a case before a grand jury, it’s a very safe bet that it’ll proceed (I was going to say “that it’ll make it to trial”, but then I realized that there are a lot of pitfalls between the grand jury and the trial.)

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