Breaking Down A Grand Jury

Jan 29, 2014

Credit Lonpicman / Wikimedia Commons

The case of Randall Kerrick has opened up a lot of questions about the grand jury process. Kerrick, of course, is the CMPD officer accused of shooting an unarmed black man ten times. A grand jury indicted him this week on a charge of voluntary manslaughter, but only after a different grand jury refused to indict him last week. Sara Sun Beale, a law professor of Duke University and the author of Grand Jury Law And Practice helps us understand exactly how a grand jury works.

Kevin: Can you give us a basic overview and the role of a grand jury?

SSB: Most people are familiar with a trial jury - the jury that hears the whole case against a defendant. The grand jury is very different. It is a group of citizens like a trial jury, but they don't hear both sides of the case. They only typically hear the government side of the case very early on. Their function isn't to decide guilt or innocence. It's rather to decide whether there is enough evidence to hold the defendant to answer at trial or if he wants to plead guilty. It is a preliminary screening device to protect individuals from mistake or biased or wrongful charges early on.

Kevin: In the grand jury hearing for officer Randall Kerrick - the initial one - it was said that there was less than a full grand jury, mean that not all eighteen grand jury members were part of this hearing. How does it work when there isn't a full grand jury?

SSB: It's pretty common because typically a grand jury will sit for a lengthy period of time. So if the grand jury is going to go on for six months and meet every Tuesday, or something like that, something is going to come up. You're going to have a doctor appointment or something of that nature. So because it is a continuing body that is going to hear many different cases - you know they are just hearing this little bit about each case to decide whether there is enough for it to go forward - the traditional rules in all jurisdictions that I am aware of say that so long as you have a quorum, that is sufficient. So you don't have to have every single person there. You don't have to have a unanimous verdict. Everybody doesn't have to be there every single day. Rather you have a big enough group, if you have a quorum, and you meet the numerical requirement to vote for an indictment, that's enough. The big test then is the later test at trial. So it is this preliminary determination of whether it is enough to send the case on to trial.

Kevin: OK so in this particular case the grand jury asked that a lesser charge against officer Kerrick be filed. The attorney general then said he would resubmit the same charges for a full grand jury. How many times, and under what circumstances can charges be filed to a grand jury?

SSB: Well, that is an interesting question. So the traditional rule was any number of times that the prosecutor wants to do it. So lets say you've done a certain amount of investigation as the prosecutor. You think that you've got enough to present to the grand jury. You don't bring everything that you've got to the grand jury because again it is just this short, brief, preliminary preview of the case. And the grand jury says "I don't think that is enough." There isn't necessarily anything wrong with the prosecutor coming back in the next time, bringing an extra witness or two, a few more documents, and that same grand jury or a second grand jury says "Oh! Well now I see that is enough." So the traditional view was no limit. Some states have taken a different view which pushes the prosecutor to be a little more careful and do a fuller presentation. Because unless they show new evidence, newly discovered evidence, newly gained evidence, they can't come back. That is a pretty significant modification from the traditional rule that I think is observed in most states including North Carolina.

Kevin: Is it up to the prosecution to use a grand jury versus filing a charge directly with the court?

SSB: So the traditional rule, sort of in the English colonies, and about a third of the states, as well as federal, is you have to go to the grand jury for a serious felony type charge. It's not the only way to do it, and most of the Western states and some of the Midwestern states have said "Why don't we just require the prosecutor to show this preliminary preview of the case to show that there is enough to a trial judge? Why don't we do it in an open court room, so that the community or the family of the victim or the press wants to be there and hear about it and see how much was put forward? Isn't that an as good or better way to do it?" And so a number of jurisdictions - I would say it is the majority of states now - allow that as the procedure and it is the kind of standard procedure. But it is not the tradition. So North Carolina is kind of within the traditional area here of saying "This is the best way to do it." The traditional way.

Sara Sun Beale is a Professor of Law at Duke University. She is also the author of several books, including Grand Jury Law and Practice.