Grand Jury’s Decision in Michael Brown Shooting in Ferguson – How Wisconsin Grand Juries Work

On Monday, November 24, 2014 the decision by a grand jury not to indict Darren Wilson was announced by St. Louis County prosecutor Robert P. McCulloch.  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.

Brown was shot six times by Wilson, killing him.

What happens in Wisconsin criminal cases?

In Wisconsin the majority of criminal cases are begun by a district attorney who files a criminal complaint complaint.  That criminal complaint serves as notice of what crimes the defendant is facing.  The criminal complaint states the crime charged, names the defendant, and gives the date, approximate time, and location of the crime.  The district attorney must present enough evidence to show why the defendant is being charged with the crime.  It must show “probable cause” to believe that the defendant committed the crime charged.  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).

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.  At the hearing hearsay is allowed and credibility of the witnesses is not at issue.  If probable cause is not shown, the criminal case will be dismissed.  If probable cause is found, or the defendant waives the hearing, the defendant is bound over for trial and the case continues.

Does Wisconsin use Grand Juries?

Although 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.  If the vote is achieved, the State issues a complaint.  If it is not, the case does not proceed criminally and more investigation may occur.

Although grand jury proceedings are secret, they’re usually more relaxed than something like the preliminary hearing.  The secret nature of the grand jury proceeding encourages witnesses to provide truthful information without fear of retaliation.  A potential defendant’s reputation is protected in the event the grand jury decides not to indict.  That’s different than when a complaint – a public document – is issued pursuant to usual practice and it’s open for the whole world to see.

  • For a general overview of different juries in Wisconsin, see this Wisconsin Legislative Bureau article.
  • For an in-depth article discussing a complete history of grand juries in Wisconsin (and the world), see this Marquette Law Review article.