CALIFORNIA ENDS GRAND JURY HEARINGS IN FATAL POLICE SHOOTINGS

California is the first state to announce that it will ban grand juries in the preliminary determination on whether a law enforcement office should face criminal charges after killing someone in the line of duty. The reasoning behind the ban, which goes into effect next year, is to end public suspicion fostered by the secrecy of the grand jury process. The new law only affects criminal hearings on matters in which a police officer has killed a person in the line of duty.

In California, a grand jury is composed of a panel of citizens from each county, who serve for a set period of time. Each California county selects and empanels grand juries according to that county’s rules and grand juries can hear both criminal and civil matters. In criminal matters, a grand jury hears evidence and testimony presented by the prosecution and then decides whether there is enough evidence to indict.

This process is different from the more common form of criminal prosecution in California wherein the district attorney files a complaint against the person accused of the crime and following that, a judge hears the evidence in a preliminary hearing. While the prosecutor presents the evidence, a defense attorney is present to represent the person charged and can cross-examine witnesses. The defense attorney is also able to argue to the court that the evidence is not sufficient to “bind over” the defendant for trial. The judge determines whether the evidence tends towards a reasonable suspicion that the person (or persons) committed the crime. If the judge finds the evidence sufficient, the prosecutor will then file the charging document. There are some variations on this process, but this is the general scheme.

Unlike preliminary hearings, grand jury proceedings are held in secret before a person is charged with the crime the grand jury is considering. While grand jury proceedings are supposed to be objective, only the prosecution presents the evidence; there is no defense attorney present. Often this does not go well for the person accused of the crime as there is no defense attorney present to cross-examine the prosecution’s witnesses. Truth is, the prosecution would not be presenting the evidence before the grand jury if it did not want to indict. And while the prosecution is obligated to present exculpatory evidence, that doesn’t always happen and even if it does, the evidence is presented from the prosecutor’s point of view.

Why do grand juries exist? Grand juries are often empanelled to hear high profile cases, such as those involving public figures or when the prosecution wants to keep the case out of the public eye until such time as an indictment is filed. In the case of police shootings, a grand jury keeps the high profile case away from public scrutiny until, and unless, the grand jury decides there is enough evidence for the prosecutor to indict.

But that will change in California in 2016. After the many high-profile police shootings across this country, the public has become very suspicious since one grand jury after another has failed to find evidence sufficient to indict. Not only is the evidence hearing held in secret but the record and transcripts of the grand jury hearing are sealed and not made available to the public. While grand juries are often accused of “rubber stamping” the prosecution, indicting persons on evidence presented only by the prosecution, the public is suspicious when police officers are not indicted following the grand jury hearing.

In order to avoid the impression that the prosecution is protecting the police, hearings on charges that a California police officer violated the law in a fatal on-duty shooting will now proceed in a preliminary hearing where the testimony is public record. This does not mean that every police shooting fatality will end in a trial; first the prosecution must decide whether to file charges and then a judge must decide whether the evidence supports the need for a trial. But the new law is intended to end the air of suspicion around the secret grand jury hearings on police shootings and the speculation that the prosecution is protecting police officers from criminal charges.