Grand Jury & Prosecutors - Calibrating the Scales of Justice

In January, the Dallas County Prosecutor’s office announced prosecutors would no longer make recommendations to grand juries during the proceedings. This shift in policy comes in an effort to be consistent in grand jury proceedings conducted by the office.

 What is a grand jury?

A grand jury is used to determine whether an indictment should be brought in a criminal proceeding. The Texas Constitution guarantees that only a grand jury may issue a felony criminal indictment. Tex. Const. Art. 1, § 10. A grand jury consists of twelve qualified persons who represent the demographics of the county populace, and nine out of the twelve are required to indict a case. A grand jury is not adversarial, as the defense attorney is not allowed to be present, but rather a prosecutorial aid in investigating a case and determining the ability to bring charges. The prosecutor has the duty to provide the facts necessary to a grand jury and aid the grand jury in understanding the law presented. See CCP Art. 20.05.  According to an Assistant District Attorney in Harris County, a prosecutor should be wary of the appearance of infringing on the grand jury’s independence and avoid direct instruction on the grand jury’s decision.

 The Policy Shift

The Dallas County District Attorney, John Creuzot, recently announced the Uniform Grand Jury Policy. This policy “mandates that prosecutors presenting cases to grand juries not make a recommendation of whether to indict or no-bill cases.” The previous policy had allowed prosecutors to make a recommendation to grand juries in most criminal cases. However, the policy did not allow for recommendations where police officers or other public officials were the potential defendants.

The policy change is an attempt at consistency. According to the announcement, prosecutors will provide guidance on elements of the crime and whether, in the prosecutor’s view, the elements are met, as well as to answer questions regarding presentation of the case. According to DA John Creuzot, “It will be up to the grand jury to exercise their discretion—which is what they are here to do—without influence from [the DA’s] office.”

The policy comes after Creuzot’s office has failed to obtain indictments against police officers in multiple allegations of misconduct and criminal cases tied to the George Floyd protests in May 2020. In a January 5 press conference, Creuzot admitted that the office does not make recommendations to grand juries on whether to indict police officers.

Though consistency is generally a positive in the criminal justice system, this policy shift raises questions of fairness and prosecutorial independence. Where prosecutors make indictment recommendations in a grand jury proceeding, there is a heavy finger on the scale of justice. As the grand jury proceeding is not adversarial, there is no opposing party to present other sides, recommendations, or even evidence. Initially, this policy seems to return power to the hands of the grand jury in their constitutional and statutory capacity and limit the power and subvert influence of the prosecutor that has seemed to favor public officials. Due to the closed nature of grand jury proceedings, it is difficult to know how strictly and in what manner this policy will be implemented.