Grand juries, explained

Demonstrators outside a Staten Island courthouse
Protesters display a banner and placards during a demonstration outside a Staten Island courthouse in January 2015, before a hearing in a state lawsuit seeking the release of grand jury proceedings concerning the death of Eric Garner.
Jewel Samad | AFP/Getty Images file

This is an updated version of a story that ran on in September 2016.

Convening a grand jury is one way a prosecutor can determine whether to bring charges against someone who is suspected of committing a crime.

But grand juries have become a flashpoint in conversations over race, policing and criminal justice. Critics say that because grand juries almost never indict police officers and lack transparency, they shouldn't be used in cases of police shootings.

Here's a look at how grand juries work, why they exist and what makes them so controversial.

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What is a grand jury?

A grand jury exists to put evidence of a suspected crime to a group of peers, which evaluates whether there's enough reasonable evidence to indict — bring charges against — a person.

If the grand jury decides there's probable cause, it recommends charges. If not, jurors deliver what is called a no-bill, meaning they found insufficient evidence to indict.

How is a grand jury created?

County attorney's offices draw grand juries twice a year, and they only serve as needed. Each grand jury convened in Minnesota can include up to 23 people — but it takes only 16 of those jurors to form a quorum, the minimum number required to make a grand jury meeting valid. Twelve jurors finding probable cause are required for a grand jury to issue an indictment.

Who's eligible to serve on a grand jury?

Jurors are selected randomly from what the state calls "a fair cross-section" of qualified residents in a particular county.

Certain people may be exempted from serving on a grand jury, including those who have been convicted of a felony and are still on parole; those with certain disabilities; and those who can't speak English. St. Louis County, Minnesota's largest geographically, forms grand juries a bit differently than the state's other counties, picking one grand jury from each of its three districts.

What happens during grand jury proceedings?

Grand jury proceedings are fairly simple in concept. A prosecutor presents evidence to the jurors, and witnesses testify — one at a time. Witnesses answer questions from the prosecutor and the jurors, but don't have an attorney of their own present. It's highly uncommon for the accused to testify on their own behalf.

In grand jury proceedings, the prosecutor runs the show. No defense attorneys are allowed: Only the prosecutor, jurors, the witness and a stenographer are permitted in the room.

What happens after a grand jury investigates?

Once its investigation is complete, a grand jury will recommend either an indictment or a "no bill," which happens when jurors say there shouldn't be charges.

Grand juries are intentionally secretive: Transcripts of testimony aren't public, and jurors can't talk about what happened. The secrecy is meant to encourage reticent witnesses to speak up — and to encourage jurors to be impartial.

Any charges filed against the accused for which a grand jury doesn't issue an indictment are dismissed. But lack of an indictment doesn't stop the case from going to a grand jury again, if a judge orders it. And if there's no indictment, civil action is still possible.

What cases are sent to a grand jury?

In Minnesota, charges that carry the state's harshest sentence — life imprisonment; there's no death penalty in the state — always go to a grand jury. Included among those charges are first-degree murder and certain sex offenses. For other suspected crimes, it is up to a prosecutor's discretion whether to convene a grand jury.

The question of how — and whether — to prosecute law enforcement officers who take a life has made its way to the forefront of discussion in the wake of police killings.

In the case of the officer who killed Michael Brown in Ferguson, Mo., a grand jury returned a "no-bill" decision. Activists were upset, and cries against the use of grand juries have persisted. In 2016, when he declined to bring charges against two Minneapolis officers in the shooting death of Jamar Clark, Hennepin County Attorney Mike Freeman said his office would no longer send police-involved shooting cases to grand juries, something Hennepin County prosecutors have done for decades.

But it's important to keep in mind that there's no legal imperative to bring a fatal police shooting case to a grand jury — it's a prosecutor's choice, and there are lots of reasons a prosecutor might decide to do so.

A prosecutor might toss a case to a grand jury, for instance, for political cover, said Brad Colbert, a professor at the Mitchell Hamline School of Law. "Then the prosecutor doesn't have to a say 'I charged it or I didn't charge it,' but rather sent a case to a jury of peers." A prosecutor might also choose to call a grand jury because he or she sees it as a way to democratize the justice system.

Where do grand juries come from?

The concept of grand juries arrived in America with its British colonists. It's an old idea. Twelve men — only knights or "other freemen" — made up the first grand jury, which was convened in England in 1215, according to a U.S. courts handbook. The idea was to give people outside the justice system some independence from judges, prosecutors and other legal types.

Of course, grand juries changed significantly during the next few centuries. They became more secretive, too.

Only a handful of countries outside the United States still use grand juries.

Even England, which inspired the U.S. grand jury system, has abandoned the process because it didn't work there anymore. Grand juries became "perfunctory" and serving on them was "a burden to reluctant actors," legal writer Albert Lieck wrote in 1934, a year after grand juries were abolished in England.

Still, in the U.S., the process retains its democratic roots — at least, in theory.

"The grand jury procedure was essentially designed with very lofty intentions of bringing the public and peers into the process of deciding when we're going to levy criminal sanctions against an individual," said JaneAnne Murray, a University of Minnesota law professor.

But in modern America, Murray said, grand juries have become an "easy tool" for prosecutors to get the outcome they want, which often means: Charges.

Prosecutors can lay out any narrative they want in front of a grand jury, as long as they use evidence that would be admissible in trial court. They almost always end with an indictment. Sol Wachtler, a former chief judge for the New York Court of Appeals once said that a grand jury would even "indict a ham sandwich," it was so easy for prosecutors to get charges.

FiveThirtyEight has reported that grand juries at any level almost always indict.

Why are grand juries so controversial?

Distaste for grand juries in the Twin Cities has a history dating back at least to 1990, when a Minneapolis police officer shot and killed 17-year-old Tycel Nelson, who was black. An all-white grand jury didn't charge the officer. After that, Hennepin County convened a task force that found racial minorities were overrepresented as suspects, but underrepresented as grand jurors.

Despite the prevalence of indictments in most cases brought to a grand jury, police officers are rarely subject to grand jury indictments.

One reason: The legal bar for charging officers in a person's death is much higher than it is for civilians.

Minnesota law says use of deadly force by police is justified "to protect the peace officer or another from apparent death or great bodily harm." In deadly force laws for civilians, the law is much shorter and doesn't include the word "apparent."

The low rate of indictment for officers also partly comes from the relationship between prosecutors and police departments: Sometimes prosecutors treat police departments like they're their own clients, Murray said.

In most cases, it's officers who do the investigative work for prosecutors. When a potential criminal case arises, it's usually the police department — local, regional, county, etc. — that gathers evidence, interviews witnesses and investigates the crime. Investigators then hand over their findings to prosecutors, who decide whether or not to press charges. So, turning around and charging an officer can be a tough spot for prosecutors.

"There's an inherent conflict of interest in that," Murray said, "and that's why people want to see a more transparent process rather than a secret grand jury process."

What are the alternatives?

Hennepin County Attorney Mike Freeman
Hennepin County Attorney Mike Freeman speaks during a news conference in March 2016, when he announced that after months of careful consideration, he's decided he would not rely on a grand jury to determine whether two Minneapolis police officers should be charged in the shooting death of Jamar Clark.
Elizabeth Flores | Star Tribune via AP

The use of grand juries in cases of police violence have become so contentious that some places are taking other routes.

California banned the use of grand juries in cases of excessive or deadly force by law enforcement in 2015. Backers of the legislation said outlawing grand juries in those instances would make the judicial system more transparent and accountable.

In March 2016, Hennepin County Attorney Mike Freeman made a similar decision when considering charges against the police officers in the November 2015 shooting death of Jamar Clark. Ending a decades-old practice, Freeman said the county would stop handing off police-involved shooting cases to grand juries.

"The accountability and transparency limitations of a grand jury are too high a hurdle to overcome," Freeman said at the time, opting to make decisions about charges in his own office. In the Clark case, he declined to pursue charges.