Since the recent events have unfolded in Ferguson, Missouri, family, friends, and some clients have asked me what a grand jury is and why it is so secretive. To address these issues, I decided to explain the grand jury process in a blog post and why, as a DWI defense attorney, I favor preliminary hearings.

Grand Juries are selected from the community at random, but unlike regular jury service, service on a grand jury is secret and not subject to public disclosure. Grand Juries have one purpose and one purpose only: to determine if enough evidence exists to support probable cause to charge the defendant with a crime. While all 50 states allow for grand juries, only about half the states actually use a grand jury process.

During the grand jury process, the defendant/accused and his/her attorney is usually not allowed to participate or attend. There is no judge. There is only a panel of (generally) 16-23 jurors who hear arguments from the prosecutor and the testimony of the prosecution’s witnesses. The prosecution is therefore free to present their case any way they choose. Generally, the proceedings are kept secret and the records from the grand jury proceedings are kept sealed, meaning that the records are not publicly available. The defendant will never know what evidence was presented, how it was presented, or which witnesses testified during the grand jury hearing. It is often said that grand juries will indict a ham sandwich. This is because grand juries overwhelmingly find that the prosecutor has presented enough evidence to charge a defendant with a crime because the prosecution has absolutely no requirement to present any potentially exculpatory evidence to the grand jury for their consideration. Thus, grand juries almost always choose to indict the defendant and formal charges normally follow. Many jurisdictions in Missouri (including Jackson County, Missouri) utilize the grand jury process.

While grand juries are still in use in half the states in the country, the trend is toward opting for a preliminary hearing. There is no jury in a preliminary hearing. Rather, a judge presides over the hearing. Unlike a grand jury proceeding, the defendant is present and usually represented by an attorney, who can cross-examine the prosecution’s witnesses and object to the prosecution’s evidence. Additionally, a defendant and his/her attorney can (and often does) present exculpatory evidence during the hearing. The preliminary hearing is public and transcripts can be obtained. In other words, it is a highly adversarial and transparent process.

While in both the grand jury proceeding and at a preliminary hearing the burden on the prosecution is much lower than it is in a criminal trial (probable cause versus beyond a reasonable doubt), preliminary hearings are more likely to result in a finding of no probable cause and a dismissal of charges against the defendant simply due to the fact that the defendant is present and represented by a lawyer who will always present exculpatory evidence and cross-examine the prosecution’s witness and object to evidence.

The grand jury proceedings in Ferguson were unusual because the defendant officer was allowed to testify during the proceeding (something that most criminal defendants are not given the opportunity to do). Had the City wanted to make the process more transparent, it could have allowed for a public preliminary hearing so that there would have been an opportunity for the public to see the evidence, hear both sides present their cases, and open up a public dialogue – much like what occurred as a result of the George Zimmerman trial.

Ultimately, secrecy breeds public mistrust. If the public is to have any understanding of the criminal justice process, more jurisdictions should be willing to open up the courts and trade grand juries for preliminary hearings.