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Justice In America: The Grand Jury System

Deliberations on whether to try a white police officer for the controversial shooting of an unarmed black teenager are focusing attention on a unique aspect of America’s criminal justice system, the grand jury. We are the only nation that allows citizens -- not the government -- to screen criminal charges before they may go to trial. This dates to our nation’s early history and is enshrined in our Constitution.

Eighteen-year old Michael Brown of Ferguson, Missouri, was shot six times and killed by Officer Darren Wilson during an arrest in August. Police said Brown attacked Wilson and tried to get his gun. Others said Brown was trying to surrender. His death led to months of protests, some violent, and made Ferguson the focus of a national debate about race and police procedures.

That Michael Brown is dead is a fact, but the circumstances surrounding his death are murky. That’s where the grand jury comes in.

A panel of 12 local residents – five women and seven men – is reviewing the case. They’ll hear evidence collected in the government’s investigation, and based on that they’ll decide if Wilson should be charged with a crime, such as murder or manslaughter. Unlike a trial, no judge is present, and grand jury members may ask questions and call for more evidence if they believe it exists. They want to answer two questions: is there probable cause to believe a crime was committed, and, is there evidence to show that Wilson was involved in that crime. If at least nine of the 12, voting in secret, decide that it’s reasonable to believe Wilson could be found guilty of a crime, the case will go to trial. If they don’t, no further action is taken unless additional evidence is found.

The notion of a citizen’s investigative panel stretches to old English law, where many American legal principles are rooted. It was intended to prevent the king from being able to prosecute his critics without good reason. America’s Founding Fathers adopted it in the Constitution’s Fifth Amendment, which codifies many of our legal protections, such as the right against self-incrimination.

The system has its critics. Grand jurors often hear only the prosecutor’s side of the case and are persuaded by them. But by requiring a burden of proof be presented before a person can be tried for a crime, the grand jury system provides an important check against arbitrary government action.

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