A grand jury's recent decision not to indict police officer Darren Wilson for the killing of Michael Brown in Ferguson, Mo., has thrown a spotlight on the legal institution of the grand jury:
What’s the prosecutor’s role in grand jury proceedings? Who brings the charges? What are the standards of proof?
On Tuesday's Central Standard, Sue McGraugh, a professor of law at St. Louis University, and Jackson County Prosecuting Attorney Jean Peters Baker disagreed about whether the Wilson case was handled differently from most grand jury proceedings.
In Missouri, a grand jury is composed of 12 people (a federal grand jury, by contrast, is composed of anywhere from 16 to 23 people), nine of whom must agree that a crime was committed and that there is probable cause to believe the defendant committed it.
According to McGraugh, the Ferguson grand jury was atypical because of the way the evidence was presented.
"How a grand jury normally proceeds is that the state presents a case for probable cause –that they will go forward after telling the (grand) jury, ‘We think this is the crime that was committed, here is the evidence that supports the charge we're bringing,’ and (they) vote yes or no," McGraugh said.
In this case, however, the prosecutor allowed the grand jury to examine the evidence "in more of an investigative capacity," McGraugh said.
In other words, unlike the typical procedure – in which grand juries act as rubber stamps for prosecutors – the grand jury was allowed to decide for itself what, if any, charges to bring.
"I am not familiar with Kansas City,” McGraugh said, “but I can tell you that Bob McCulloch (the St. Louis County prosecutor) himself stated that he has never used this process in a grand jury before."
"It's very unusual," she added.
Peters Baker, however, countered that grand juries are often used in an investigative role, at least in Jackson County, and that the practice dates back as far back as 1989.
"The grand jurors, in an investigative role, have subpoena power and they can ask certain witnesses be brought before them. They can also ask for particular evidence, non-testimonial evidence be presented to them," she said. "The difference between a regular grand jury and an investigative grand jury is that the investigative grand jury is the decision maker on the charge."
Peters Baker said grand juries are often used in this fashion when the community at large demands it.
"The reason for that was simply the outcry of the community," she said. "These are very serious cases and it is an opportunity for the grand jurors, twelve citizens of its own community, to decide a case."
Peters Baker said that, as a prosecutor, her duty is to present cases to the grand jury that don’t merely meet the standard of probable cause but that meet the much higher standard of proof beyond a reasonable doubt.
"That's the trial standard,” she said. “That's what we actually need to get to, proof beyond a reasonable doubt.”