Grand jury’s decision in Michael Brown shooting in Ferguson – How Wisconsin grand juries work

Grand juries operate different ways in different states.

On Monday, November 24, 2014 St. Louis County prosecutor Robert P. McCulloch announced a grand jury decision to not indict Darren Wilson.  Mr. McCulloch indicated that Officer Wilson faced potential charges ranging from first-degree murder to something as mitigated as involuntary manslaughter.  The grand jury brought no charges against Officer Wilson.

Officer Wilson fatally shot Michael Brown on August 9, 2014 in Ferguson, Missouri, a suburb of St. Louis.  The confrontation between Wilson and Brown began when Wilson observed Brown walking down the middle of a road.  Brown and Wilson eventually got into a physical altercation, which resulted in Brown running away from Wilson.  Wilson caught Brown.  Witnesses claimed that Brown was surrendering peacefully.  Other witnesses claimed that Brown was moving towards Wilson.

Wilson shot Brown six times, killing him.

What happens in Wisconsin criminal cases?

Firstly, in Wisconsin, prosecutors begin the majority of criminal cases with the filing of a criminal complaint.  That criminal complaint serves a few purposes, but mainly as notice of what crimes the defendant is facing.  Furthermore, the criminal complaint states the crime charged, names the defendant, and gives the date, approximate time, and location of the crime.  Particularly, prosecutors must present enough evidence to support the fact of the charge in the criminal complaint.  It must show “probable cause” to believe that the defendant committed the crime charged.  Finally, the criminal complaint itself, within the “four corners” of the document, must contain probable cause.  State v. Haugen, 52 Wis. 2d 791, 191 N.W.2d 12 (1971).

Secondly, if the criminal complaint is legally insufficient, the defendant can challenge it at the initial appearance.  The initial appearance is typically the defendant’s very first date in court.  If the criminal complaint stands, the court sets bail and the case continues.  If the complaint does not, the defendant will usually move for a dismissal of charges.  Unfortunately, dismissal without prejudice can (and often does) lead to the filing of a new criminal complaint (and the same charges) against the defendant.  This is not a double-jeopardy issue.  The next step for felonies is the preliminary hearing.

Preliminary hearings

Wisconsin criminal law requires that the defendant have a right to a preliminary hearing in felony cases.  At the preliminary hearing the state must show that a felony probably occurred.  In other words, the state must present a story that indicates there’s probable cause the defendant committed a felony.  There are a few rules that apply to Wisconsin prelims:

• Firstly, testimony based upon hearsay is admissible;
• Secondly, credibility of the witnesses is not at issue

If the state cannot establish probable cause at the preliminary hearing, the court dismisses the case against the defendant.  If the court finds probable cause, the case continues through proceedings.

Finally, the defendant has an option to wait the preliminary hearing in Wisconsin.  That certainly speeds up the process, as the court then finds probable cause for a felony and skips any kind of testimony.  Importantly, sometimes there are important tactical reasons to waive a preliminary hearing.  Certainly it is not always wise to proceed to that hearing.

Does Wisconsin use grand juries?

Although certainly the majority of criminal cases begin with the issuance of a complaint, Wisconsin does use grand juries.  Section 968.06 of the Wisconsin Statutes indicates:

Upon indictment by a grand jury a complaint shall be issued, as provided by s. 968.02, upon the person named in the indictment and the person shall be entitled to a preliminary hearing under s. 970.03, and all proceedings thereafter shall be the same as if the person had been initially charged under s. 968.02 and had not been indicted by a grand jury.

In plain language, this means that once a defendant is indicted by a grand jury, the State issues a criminal complaint and the case proceeds through the “normal” procedure discussed above.

How does a grand jury work?

Grand jury and John Doe proceedings are secret hearings where witnesses are subpoenaed to testify.  These proceedings usually occur when investigators need to take testimony under oath, or when they need to compel a witness to testify in order to gather sufficient evidence to issue a criminal complaint.  At the hearing the subpoenaed witnesses are asked (sometimes compelled) to provide testimony to the grand jury.

Upon request from a district attorney a judge may assemble a grand jury to investigate suspected criminal activity.  The grand jury consists of at least 17 individuals who were selected for jury service.  Individuals selected for jury service do not know ahead of time whether they’ll hear a criminal trial or civil trial (petit jury), a coroner’s jury, or a grand jury ahead of time.   When the grand jury investigation is complete a vote occurs.  At least 12 members of the 17 member grand jury is required in order for an indictment to issue.  Like a criminal complaint or a preliminary hearing, the jurors use a “probable cause” standard in determining whether to indict.  The state issues a complaint if grand jury vote succeeds.  If it is not, the case does not proceed criminally and more investigation may occur.