That does appear to be a Ham Sandwich, lets indict it.
October 19, 2014 5:04 AM   Subscribe

If you were to be on a grand jury, hearing non-violent felonies, what questions should be asked of the witnesses?

I've read a lot of accounts where I've thought that if only the grand jury had been a bit more sceptical of what was presented to them, innocent people would not have had their lives ruined by months or years in jail before trial. I'm not looking for legal advice.

While I'd like to believe most cops are honest, I think the dishonest ones are emboldened to continue their abuse if the jury just passively accepts their account of the case. Part of the jury's job is to weigh the credibility of the witnesses, so would it be appropriate to ask every cop if they have ever been disciplined, and if so, relate for what and when? Would it be worthwhile to ask other things, such as what's the median number of civilian complaints lodged against an officer of your position, and how many has he had?

I'm aware of some ways technology fails, such as an ATM's withdrawal time stamp not being in sync with the camera's time stamp, which results in the wrong person arrested. What are other common relevant failures to be aware of? (Yes I do read
posted by anonymous to Law & Government (9 answers total) 2 users marked this as a favorite
When you say grand jury, do you mean jury? When a grand jury indicts someone, they are saying the prosecution has enough evidence that there should be a trial. (Not indicting means the prosecution's case is implausible enough that the accused person shouldn't even be put through the ordeal of being tried.)

Depending on what type of grand jury, there might not be any procedural opportunity for the defense to rebut the state's evidence in ways you're describing. That's why grand juries indict so often: they only get to hear one side. If they indict, there will be a full trial, with a defense, and a jury to hear both sides and weigh the witnesses' credibility.

If you want to know all the ways that evidence can be misleading or be rebutted, are you looking for answers along the lines of real cases, movie plots, or instructional texts for lawyers? Because your question seems to relate to every courtroom trial ever.
posted by Bentobox Humperdinck at 6:08 AM on October 19, 2014

As a member of a US jury, you don't get to ask any questions, of either prosecution or defense witnesses. Your job is purely to sit there silently and weigh the evidence presented by each side: you do not get to hunt for additional information --- if you're serving on a multi-day trial, for instance, if you were to hunt up additional info online or in news reports, then you've just caused the judge to rule a mistrial plus possibly left yourself open to a charge of contempt of court.

And those accounts you've read where you think the jury should have been more skeptical? Unless you were in the courtroom for the entire trial, and you heard everything the jury heard or saw, you really don't know.

Of course, if either the prosecutor or the defense attorneys wish to ask such questions of the individual cops who are there as witnesses, they're perfectly welcome to. I doubt the average officer would know the median number of civilian complaints though.
posted by easily confused at 6:11 AM on October 19, 2014 [3 favorites]

If you were to be on a grand jury, hearing non-violent felonies, what questions should be asked of the witnesses?

This would never happen. The law varies between the various US states, but the power of indictment now almost entirely lies with the prosecuting attorney. For example, in my state (Florida), the prosecuting state attorney has the constitutional authority to indict for all crimes except for first-degree murder. The prosecuting attorney is going to be indicting non-violent felonies. I am not aware of any state that requires a grand jury for all felonies. In fact, about half of states don't even have grand juries anymore.

As a member of a US jury, you don't get to ask any questions, of either prosecution or defense witnesses.

This is not accurate. A number of states either allow or require for trial juries to have the opportunity to ask questions. In my state, jurors must be allowed to submit questions in civil trials and may be allowed to submit them in criminal trials. The judge reviews the questions and then the attorneys have the opportunity to object if the question calls for inadmissible evidence.

For those of a scholarly bent, the rules containing these provisions are Florida Rule of Civil Procedure 1.452 and Florida Rule of Criminal Procedure 3.371.
posted by Tanizaki at 6:24 AM on October 19, 2014 [1 favorite]

I have served on a federal grand jury in the jurisdiction for JFK Airport. We heard dozens of drug trafficking cases. Since you only need a simple majority to indict (19 of 36 in our case), one person asking questions doesn't really affect the outcomes much. In every case we heard, the police testimony went something like this: "We saw a passenger who seemed sweaty and pale. We took X-rays and saw 43 foreign bodies. We recovered 43 condoms full of heroin." So sure, you could ask a bunch of questions about error rate and illegal search, etc. but after you've heard ten of these cases, you pretty much just send them all to trial. It doesn't feel like a tremendously effective part of the system, more like a rubber-stamp kind of thing, but it also doesn't seem like there's opportunity for an individual to disrupt this in any significant way.
posted by judith at 7:13 AM on October 19, 2014

Mod note: This is a followup from the asker.
The question is about a GRAND jury, not a trial jury. This pertaining to real life, not a movie plot. For the state I'm mainly interested in, according to the information on the state's website, the grand jury has broad powers to investigate the evidence, can call other witnesses, and must weigh the credibility of the witnesses. I'm asking about how the jury can do it's job, act as a check against improper prosecution, how not to succumb to groupthink and rubberstamp the prosecutor's assertions.
posted by cortex (staff) at 7:18 AM on October 19, 2014

I have served on a grand jury in NYC -- Kings County -- as have several of my friends, who later described their experiences.

My grand jury heard a wide variety of cases -- everything from petty theft, to drug possession, to rape. The majority involved theft or drugs. There were sometimes witnesses. The defendant came to speak for themselves several times, in particular when they felt the police account was egregiously inaccurate. The victim in the rape case we heard came to testify in front of us. We were allowed to ask for clarification, but only via the lawyers -- they would bring the witness back into the room, ask the question we had requested, and we would hear the answer.

My jury did not indite in every instance. In one case, the police officers' story made no sense, and the defendant who spoke to us presented a much more reasonable explanation. In another case, the defendant was a minor who had stolen a classmate's iPhone in a non-violent way -- first offense -- and we didn't want that kid drowned in the system.

When my friend served -- much more recently than I -- his jury refused to indite in any cases where the only charge was possession of marijuana. Basically as a form of protest -- they felt it was a waste of everyone's time to sending those charges through the courts in the first place.
posted by Narrative Priorities at 7:22 AM on October 19, 2014 [1 favorite]

Thanks for the clarification. I don't think the police discipline question is helpful because how would you know whether the discipline was for real offenses or if it's an honest cop being harassed by a corrupt department (for example)?

What you can do is constantly think up alternate explanations for the evidence that is presented. Then weigh your explanation against the "defendant is guilty" explanation and decide which one is more plausible. Questions that work pretty well to create doubt in people's minds are: shouldn't there be DNA evidence? Where is the surveillance video?

You might get frustrated that fellow grand jurors aren't as into doing an excellent job as you, and they just want to be done. That's probably why things slip past grand juries rather than their not knowing the right questions to ask. If that's the vibe you get from fellow grand jurors, you will probably be better off not asking a lot of questions (making it take longer) but just come up with your alternate explanations and lay the most plausible one out when you deliberate, so that the most sensible thing is to refuse to indict, unless they want to be there forever debunking your theory.
posted by Bentobox Humperdinck at 8:42 AM on October 19, 2014

I'm asking about how the jury can do it's job, act as a check against improper prosecution, how not to succumb to groupthink and rubberstamp the prosecutor's assertions.

Thank you for the follow-up. However, that is not what a grand jury is for. The grand jury is just there to determine if there is sufficient evidence for an indictment. The grand jury isn't there to decide if the accused is guilty, just if there is probable cause to support charges, which is quite a lower burden. The jury that decides if the prosecution has met its burden is the trial jury - they are the ones who "rubber stamp" or not.

Also, as I mentioned earlier, only about half of all states even have a grand jury system. Each state that has a grand jury system does it differently and for different sorts of crimes. It would be a lot easier to answer your question if you would name the state. Otherwise, we are all guessing about how things are done in Mystery State. My state publishes a handbook for grand jurors, and I suspect Mystery State does as well. I think this excerpt from my state's grand jury handbook answers well, based on your follow-up:

Attend all sessions of the grand jury. Your attendance should be regular and on time. If you are unable to attend a session and wish to be excused, obtain permission from the foreperson. The unexpected lack of a quorum could cause a great loss of money, as well as the time of the jurors, the authorities, and the witnesses. The public is depending on you.

Pay close attention to testimony given and the evidence presented.

Be courteous to the witnesses and your fellow jurors.

Fix the time and place of your meetings, keeping in mind the convenience of the public and the witnesses as well as yourselves and the state attorney (and the statewide prosecutor).

Do not interrupt until the state attorney (or the statewide prosecutor) has finished questioning the witness. In all probability the evidence you are interested in will be brought out by those questions.

Listen to the opinions of your fellow jurors, but maintain your own independent viewpoint.

Be independent, but not obstinate.

Be absolutely fair. You are acting as a judge. You therefore must be guided by your own good conscience and sense of justice.

All jurors have an equal voice in determining whether an indictment shall be returned. Each of you has a right to state your reasons.

Do not remain silent when the case is under discussion and then, after a decision has been made, criticize the acts of the grand jury.

A reckless grand jury is as bad as a weak grand jury.

Do not attempt to investigate matters beyond the province of the grand jury, or merely because someone suggested an investigation.

Above all, refrain from discussing grand jury matters with fellow jurors outside of the grand jury room.

Each juror has a duty and responsibility equal to yours. Each juror is entitled to be satisfied with the evidence. If others wish to pursue a matter further, no effort should be made to dismiss
the witness or shut off proper discussion.
posted by Tanizaki at 11:15 AM on October 19, 2014 [2 favorites]

I've served on a grand jury and part of the reason why indictment is so ham sandwichy is that bar is very low. Reasonable suspicion, not beyond a reasonable doubt.

In one case I heard, they came in with a child porn accusation that was found on the defendant's computer incidentally from another search. My first question for the expert witness was, "Was there antivirus software installed?" Followed by "Was the computer used as part of a botnet?" Followed by, "Was there a rootkit installed?" The expert witness could not answer any of these and the DA put the case on hold.

In every case we sat on, if something was fishy, somebody called them on it. Most of the cases, however, were very straightforward - they DA would present the law and the criteria for indictment, then the DA presented the evidence and/or witnesses. Sometimes the DA would intentionally strike a question or refuse to answer which was usually an indication that if we indicted on one charge another would be brought. Weird.

I got into a "with all due respect" fighting match with one DA because she kept preventing me from calling into question the credentials of certain witnesses without sufficiently explaining why she refused. It was really frustrating because their main witness was unreliable and they presented several other witnesses who each had at least means and opportunity if not motive.

If you asked if a cop had been disciplined, that will probably be shot down as inappropriate.
posted by plinth at 5:38 PM on October 19, 2014

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