Other Writing

A Grave Danger – Police and the U.S. Grand Jury Process
December 12th, 2014

I have worked as a Senior Crown prosecutor in Toronto, and also as a Defence lawyer, for nearly two decades. Recently, given my background, people have asked my opinion on the recent decisions of Grand Juries not to put police officers on trial in the Ferguson and now the Staten Island cases. Of course, not being in the room with the Grand Jury, and not being an expert on U.S law, the most I could say was that these decisions on their face look very troubling. What is particularly troubling is that the cases died in the cradle, so to speak, behind closed doors, without the presence of a judge.

However,  I thought it might be useful to outline a few ways our process in Canada differs from the Grand Jury process, to assist those seeking an overall assessment of the quality of justice rendered by the Grand Jury system. Often, a comparison with other systems can shed light on failings in our own. We in Canada often look to the U.S. to assess things we do here.

In Canada, we abolished the Grand Jury process many years ago, as did England, and many other countries. We have something called a “Preliminary Inquiry.” From what I can tell, the standard of proof required to bring a case to trial is similar, if not identical. The prosecutor must have “some” evidence that the potential accused (accused in Canada, as they would have been charged already) committed the crime. It is meant to be a low standard, to get rid of cases where the charge clearly has no basis.

Here, the similarities end. In the Grand Jury process, from what I have read, the prosecutor “works with the grand jury to decide whether to bring criminal charges or an indictment against a potential defendant.” One can see that in theory, the presence of the jury should “keep the prosecutor honest”, and make sure that no one is charged who should not be charged. As a practical matter, however, the prosecutor wields enormous unchecked power in this situation, as there is no judge in the room, nor is there an opposing lawyer.  In Canada, a preliminary inquiry is run just like a trial, with a judge, prosecutor, and defence lawyer, in a Courtroom, with all proceedings transcribed. The opposing lawyer has a right to cross-examine any witness that gives evidence. The judge decides if there is “some” evidence for trial, after at times tough debate between the lawyers.

Immediately, one can see the risks inherent in the Grand Jury process when a person who may be charged is part of the justice system itself, such as a police officer, and the “victim” ( I put quotes, because whether they are a victim of a crime is part of the ultimate issue), is a person without power, and maybe subject to prejudice based on race. What happens if the prosecutor is less than zealous in representing the interest of the dead “victim”? Or worse, what if the prosecutor is on the side of the police officer? What if the prosecutor decides to put the police officer up to “tell their story.”? The crucial, to my mind, terrible problem with this procedure, is that there is no lawyer adverse in interest to the police officer involved in the process. There is nobody to cross-examine him or her to bring out weakness in their evidence, if any exist. Basically, it is easy for a jury to be “snowed” by an unfair process.

Furthermore, the police officer’s evidence defending their actions is almost always irrelevant to the question of whether there is “some” evidence for trial. The most it could do is to suggest that there is a “conflict” in evidence, or in the “interpretation” of the evidence to be decided at trial. Since in Canada the Judge decides if there is enough evidence for trial, police officers almost never would testify in our equivalent of the Grand Jury. Not only would the evidence be useless at this stage, it would create a prior statement from which the officer could be cross-examined at trial. It is hard for me, as an outsider, to understand why in the U.S. system police officers are testifying at Grand Juries in cases where they are under investigation, and how their evidence could be relevant in most cases.

Certainly in cases where the potential accused is a police officer, and where the “victim” is subject to prejudice, you have a grave risk of a miscarriage of justice with any process in which the officer gets to testify, but not to be cross-examined by an opposing counsel. The issue is not that the police officer necessarily committed a crime; but rather, that the case was dismissed in an unfair way too early in the process to properly adjudicate that issue.

Even if the U.S. adopted our process, there remains a danger of the local prosecutor taking the police side. This is why a Special Prosecutor from out of the region with unimpeachable credibility would be required in such cases. The importance of justice for any society is often underestimated, until it is wholly absent. Fair laws, fairly interpreted, are the glue that holds a society together. Without it, the principle of entropy has free reign. Injustice is a great gift to anarchy.

Robert Girvan,
Former Senior prosecutor,
Defence Lawyer, & Author,
Toronto, Canada



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