Does our Grand Jury System Reinforce Cultural Biases?

Grand juries are designed to be unfair. A traditional grand jury hearing is a sealed hearing where a prosecutor presents a case to sixteen to twenty-three lay grand jurors. This structure means that only the prosecutor, the grand jurors, and the prosecutor’s witnesses know about the alleged facts and evidence presented before the grand jury. The hearings do not have presiding judges, a representative for the defendant, or any impartial legal authority. In most jurisdictions, defendants are given no notice of their grand jury hearing and only learn that a hearing took place after the grand jury indicts them.

It is no secret that prosecutors are mostly able to control the outcome of grand jury hearings. In jurisdictions such as in Kentucky, grand juries have indictment rates over 98%. Although many other jurisdictions have lower indictment rates, the closed nature of grand jury hearings makes it nearly impossible to determine the actual rate at which grand juries follow a prosecutor’s recommendation. For instance, in 2014, the counties in the Dallas Metropolitan area saw indictment rates ranging from 16% in Tarrant County to .6% in Harris county.

The wide range of grand jury indictment rates suggests that a prosecutor’s discretion is the greatest determining factor for whether a grand jury indicts a defendant. Prosecutors are not required to call any witnesses in grand jury hearings and the hearing itself may last a little as seven minutes. Since typical grand jury proceedings lack any form of oversight, there is little stopping a prosecutor from alleging facts that are completely unsupported by the evidence. Similarly, since grand jury sessions are closed, there is little stopping a prosecutor from tactically or politically suggesting a grand jury issue a no bill. The now-disgraced former New York State Chief Judge Sol Wachtler is famously quoted as saying that a grand jury would “indict a ham sandwich” if that's what the prosecutor wanted. For instance, a prosecutor may tactically suggest that a grand jury issue a no bill and state that the witnesses in a case are untrustworthy or unreliable to appear more trustworthy in subsequent cases.

Since the proceedings are closed, there is little stopping a prosecutor making their recommendations based upon their innate biases. For instance, a prosecutor may choose to bolster the facts of a case because the defendant lives in a low income or high crime area. Similarly, a prosecutor may choose to downplay the facts in a case because the defendant lives in a high income or low crime area. Police profiling is a long-standing and deeply rooted national problem that has plagued low income and minority communities for generations. And with high grand jury indictment rates, prosecutors inevitably reinforce these deeply rooted biases when arguing before a grand jury. Such behavior would create a cyclical pattern that can only harm our justice system.

We live in a society where 90% of all federal criminal cases result in a guilty plea, and 98% of cases do not go to trial. This high rate means that when the police disproportionately arrest certain communities, it is extremely likely that these arrests will create the perception that the people of those communities are more likely to break the law. This perception thus becomes the circumstantial proof for subsequent cases that completely unrelated people from those communities are also guilty of similar offenses. And in our society where people are unlikely even to know their neighbors, it would not be surprising if grand juries issued indictments based primarily on this circumstantial evidence. Such behavior would in turn, only serve to harm our jury pool. For when a prosecutor presents unobstructed and irrefutable evidence that broadly implicates various communities, this evidence risks create and reinforce cultural biases and stereotypes amongst our jury pool.