Facts, Evidence, Grand Juries, and Ham Sandwiches

A former Chief Judge of the New York Court of Appeals once – and now famously – said that a grand jury would “indict a ham sandwich.”  Just mention the term “grand jury” to anyone that has attended law school and this will be the first thing that they say.  I guarantee it.

The grand jury.  Over the last month or more, there has been vast discourse and even more vast emotional expenditure over this singular component of the American legal system.  The workings of grand juries and the indictments that they may (or may not) produce have been the subjects of great debate and consternation recently, with significant, perhaps unintended, consequences for a lot of people in a number of places.  Indeed, great subjects of social dialogue (and discord) have boiled over in response to grand juries and what they have (or have not) wrought.

As a member of the legal profession, I have found the late and ongoing discourse, debate, and dialogue to be fascinating, and more than a bit troubling.  Not troubling because of the emotions that have been produced – the emotions are all valid – but troubling because of what appears to have been hopes of justice crushed, not necessarily by the grand juries themselves, but by false expectations that these grand juries would be something other than what they are.

Sure, it looks innocent, but what nefariousness lies within its tasty layers of enriched white bread and processed cheese?

I don’t have any great (or small) theological thoughts today.  Rather, I thought I would take advantage of the “culture” aspect of this TheoCult Collective to simply discuss one present significant source of cultural conflict and to explain in as cold, detached, and objective means as possible the basic function of the grand jury: what it is and what it isn’t, what it does and what it doesn’t, in an attempt to cut through the swirling emotion, and diatribes, and perceptions. Though I have strong opinions, I offer no commentary on the specific cases whirling around in our culture and society and present no conclusions (and I acknowledge that true objectivity is likely not possible, as my perceptions of objectivity are obviously formed by what has formed me). Your opinions and conclusions are yours to form.

I also acknowledge (and warn) that this is not a comprehensive legal discourse.  I hope that I get the substance of the thing right, but being a lawyer I am aware that any and every other lawyer reading this would find definite points with which to argue (we’re really cute like that).  My criminal procedure professor was one of the greatest minds in this field of law, and while I did well in his course, I am sure he would find fault.  I hope I don’t disgrace his dojo too much by what I’m about to write.

What is the grand jury?  Simply put, it is a screening mechanism put in place to determine whether an accused criminal offender will be charged with a crime and brought to trial.  The grand jury is a prosecutorial function.  In other words, it is a means (and responsibility) for the state, by the criminal prosecutor, to demonstrate the threshold elements that (a) a crime has been committed; and (b) that a particular person was likely responsible.  The threshold burden of proof that a prosecutor must prove to the grand jury is “probable cause”; that is, the prosecutor must provide evidence of more than a mere suspicion, but less than what is necessary to gain a conviction, that the accused person committed the specific criminal act in question.  If the prosecutor meets this burden, the grand jury returns an indictment.  Therefore, a grand jury does not serve as means to pass judgment.  It is simply a door that the prosecutor must pass through in order to take the accused offender to trial – at which point, the burden of the prosecutor is increased exponentially to providing evidence “beyond a reasonable doubt” that the accused is actually guilty of the crime.

At the principle core, though – and this is the most important point – grand juries exist in our legal system purely as a mechanism to protect the rights of the accused.  Grand juries are not intended to be instruments of immediate justice, at least as we tend to view justice (“a terrible swift sword”), nor are they mechanisms for protecting victims or advancing victims’ rights.  This may be troubling to many (it clearly has been lately), but the grand jury actually represents a development of criminal jurisprudence that, from a “justice” standpoint, is hugely important and admirable, for the grand jury is a means to help ensure that people are not dragged into criminal court at the whim of an overzealous state.

Indeed, throughout most of the existence of this criminal procedure mechanism, the primary complaint over the effectiveness of grand juries is that they don’t actually protect the rights of citizens accused of committing crimes. The very low “probable cause” threshold for obtaining an indictment has historically meant that the barrier between the citizen’s rights and the state’s strong arm has been little more than a paper wall.  For many decades, grand juries have been viewed as blocks to simply be checked by prosecutors on their way to bringing a case.

In fact, in most grand jury systems, the prosecutor is permitted to bring evidence that would otherwise be inadmissible in a formal trial. For example, while hearsay (evidence of what a witness heard someone say) is generally inadmissible in court, it is a common and acceptable form of evidence before most grand juries. As such, a prosecutor does not need to present witnesses that actually “witnessed” the alleged crime; he only has to present witnesses that may have heard someone else say something about it. There is no protection against lies or deceptions or agendas before a grand jury when “probable cause” is the only threshold. It doesn’t take much real proof at all to get an indictment, so the criticism goes. Thus, the “ham sandwich” jab – for despite the inability for a ham sandwich to possess the necessary mental culpability (let alone the physical capability) to act like a criminal, if a grand jury hears evidence that Jersey Mike heard Jimmy John say that he saw the sandwich do it, or even heard the sandwich confess that it did it, that’s enough to drag that sandwich to trial. The more evidence presented, the more likely it is that the sandwich is going to need a nice suit, and a good courtroom demeanor, and a great lawyer.

Of course, the counter argument is that while a prosecutor can easily indict a ham sandwich, she can also just as easily let that sandwich go free if she wants to do so. She can do this by failing to present much, or any evidence, supporting the “probable cause” threshold.

So then, what if a grand jury fails to return an indictment? Does that mean that the prosecutor did a bad job? Does it mean that the facts presented by the prosecutor do not support the indictment? Does it mean that a citizen’s rights have been properly protected from an overzealous state? It can mean a number of things. At the very least, though, it means that the minimal “probable cause” threshold was not satisfied. It means that by someone’s determination, whether the prosecutor’s or the grand jury’s, a conviction at trial was not likely – even based on evidence that would not otherwise be permitted at that trial.

So maybe I lied.  (Classic bait and switch.) I guess I do have a small theological (slash sociological slash jurisprudential) consideration, and it is this: I believe that the truth sets us free. When Jesus said this, He was obviously talking about Himself; but the general statement does still apply to the generic “truth” as we have come to know it. A lot of times in this world, what seems like “truth” does not seem to set us free – at least it doesn’t seem like justice (as we variously define it). But justice and truth are not necessarily the same thing – and when they are the same thing, they don’t always feel like freedom (at least as we would describe freedom). Here’s the thing, though: we can still be free in the face of injustice. On vital levels, that was the whole point of the Incarnation (Merry Christmas!), and it remains a core component of the paradoxical upside down kingdom of Christ.

In the context of the fallen world and legal system that we have, we can be free in the face of injustice particularly if we understand whether justice has actually been achieved or denied. This understanding of (“small t”) truth is important. While the American legal system has massive flaws, it is still undeniably the finest legal system that the kingdoms and governments of man have ever produced. I would not want to be subject to any other human system, and I doubt you would. The grand jury, for all of its flaws, is one of the mechanisms that make our system as good as it is. Understanding the truth of how it works and why it does what it does (and doesn’t do what it doesn’t do) can actually help us be free, if that freedom is only freedom from false hope, and false expectations, and embroiling debate, and discourse – and discord – that does not actually advance justice and freedom (and might actually hinder it).


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