In deciding whether and what to charge in a criminal case, the prosecutor looks to three different factors. The first is legal: is there probable cause that the defendant committed this crime? The second is practical: if the case goes to trial, will there be sufficient evidence to convict the defendant beyond a reasonable doubt of this crime? And the third is equitable: should the defendant be charged with this crime? The prosecutor is uniquely qualified to answer the first and second question, but the third is a bit trickier. If it is used properly, the grand jury could provide valuable guidance to the prosecutor in answering this third question. This role could be especially useful in police use of deadly force cases.
To see how this would work, this Article examines three prominent police use of force cases and analyzes how the prosecutor used the grand jury in each case. In the case of the shooting of Freddie Gray in Baltimore, the prosecutor treated the grand jury the way most prosecutors treat grand juries—as a rubber stamp for her pre-existing decision to indict. The result was disastrous, as the prosecutor was unable to obtain a conviction against any of the police officers. In the case of the shooting of Tamir Rice in Cleveland, the prosecutor used the grand jury as political cover: the prosecutor had already decided not to indict the case and presented a weak case to the grand jury to ensure that the grand jury would not return an indictment. The subsequent reaction by the community led to the prosecutor losing his job in the next election. Finally, in the case of the shooting of Michael Brown in Ferguson, the prosecutor decided to use the grand jury for its original purpose by allowing it to exercise its independent judgment as to whether an indictment was appropriate in the case. In doing so, he was able to reach a more just result than we saw in either of the other two case studies.
This Article then discusses how to encourage police officers to follow the example of the Ferguson prosecutor and allow grand juries to exercise their own independent judgment. One of the easiest ways to accomplish this goal would be to relax the grand jury secrecy rules, most of which are outdated and all of which decrease the legitimacy of the grand jury.
The Role of the Prosecutor and the Grand Jury in Police Use of Deadly Force Cases: Restoring the Grand Jury to Its Original Purpose,
65 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol65/iss4/7