We recently had a grand jury no bill a murder case. Defendant had a plausible claim of self-defense. I don't have any problem with the grand jury's decision, but it made me wonder:

Does a grand jury's duty to decide probable cause include the duty to consider and weigh a defense?

The fact that a justification for the otherwise criminal conduct may not be subject to being disproved beyond a reasonable doubt is certainly a concern for the prosecutor. But, no one really even knows whether the defense will be relied upon when the case is being considered by the grand jury. Still, the jurors are instructed to ask "pertinent questions relative to the transaction in general terms" and evidence that no offense was committed would tend to negate the requirement that the indictment state "some act or omission which, by law, is declared to be an offense". Thus, it seems to me the existence of a defense (as opposed to an affirmative defense) is within the scope of the grand jury's inquiry. But, I do not think the state's attorney has any obligation to present any proof of the defense.

Many, many years ago I sat on a Grand Jury for six months. The DA routinely would present any exculpatory evidence that apparently he believed was pertinent and credible. In one case he arranged to have witnesses available. We questioned the witnesses and ultimately no-billed the suspect.

Janette Ansolabehere

I would certainly think it is proper for a grand jury to consider a legit defense that is relevant, that's all about seeing that justice is done.

quote:

---

as opposed to an affirmative defense

---

I'm not sure I understand this. It seems that a grand jury should be able to consider, for example, uncontroverted evidence that an accused person acted under duress (an affirmative defense) in deciding whether an indictment should be returned. But I do agree that there is no constitutionalobligation to present that evidence.

If it is a valid self-defense claim, why would you want them to indict? Grand Juries do no favors to anyone by indicting when there is no likelihood of conviction. Give them all the facts and rely on their judgment. If you can't convince 9/12, you're not going to have much luck with 12/12 at trial.

Well, that's the question: who gets to decide whether it is a valid defense. On issues of credibility, a grand jury might well have different points of view than a trial jury. I don't get to weed out grand jurors who can't or won't follow the law. Sympathy probably plays a bigger part in a grand jury. And, the amount of evidence heard by a grand jury and trial jury are different.

As it happened in our case, the defendant wanted to testify. That seemed like as good an opportunity as the State would ever get to hear the self-defense story. Obviously, the grand jury found it credible and, as you suggest, it is unlikely that a trial jury would be in any better of a position.

So, I don't know that I object to the outcome in our case. But what is the right rule for everyone?

In Lubbock, we let the grand juries hear everything anybody has to say, either in person or by hearsay. The grand jurors are encouraged to consider whatever they hear, but are also admonished that some of what they hear may be totally inadmissible, or there may be a doubt as to its admissibility.

I always tell them, they are not there to do what they think the DA's office, or the cops want them to do. They are to make their decisions independently. As a rule of thumb, I tell them, they should no-bill a case, if they think the accused didn't do the crime; they should no-bill a case they think the state can't successfully prosecute, they should no-bill a case in which they have doubts about the culpability of the accused, but they should true-bill a case, if they think the accused did it and they think the state can prove it. The last thing I tell them on this matter is: "if you cannot envision 12 of your fellow citizens unanimously convicting this accused for the crime alleged based on what you understand the evidence to be, that is a good candidate for a no-bill."

From a 1788 opinion of the Pennsylvania Supreme Court advising a grand jury against summoning witnesses to be examined on the part of the proposed defendant: "It is a matter well known, and well understood, that by the laws of our country, every question which affects a man's life, reputation or property, must be tried by twelve of his peers; and that their unanimous verdict is, alone, competent to determine the fact in issue. If, then, you undertake to inquire, not only upon what foundation the charge is made, but, likewise, upon what foundation it is denied, you will, in effect, usurp the jurisdiction of the petit jury, you will supersede the legal authority of the court, in judging of the competency and admissibility of witnesses, and having thus undertaken to try the question, that question may be determined by a bare majority, or by a much greater number of your body, than the twelve peers prescribed by the law of the land. This point has, I believe, excited some doubts upon former occasions; but those doubts have never arisen in the mind of any lawyer, and they may easily be removed by a proper consideration of the subject. For the bills or presentments, found by a grand jury, amount to nothing more than an official accusation, in order to put the party accused upon his trial; until the bill is returned, there is, therefore, no charge from which he can be required to exculpate himself; and we know that many persons, against whom bills were returned, have been afterwards acquitted by a verdict of their country. Here, then, is the just line of discrimination: it is the duty of the grand jury to inquire into the nature and probable grounds of the charge; but it is the exclusive province of the petit jury, to hear and determine, with the assistance, and under the direction of the court, upon points of law, whether the defendant is, or is not guilty, on the whole evidence, for, as well as against him. You will, therefore, readily perceive, that if you examine the witnesses on both sides, you do not confine your consideration to the probable grounds of the charge, but engage completely in the trial of the cause; and your return must, consequently, be tantamount to a verdict of acquittal or condemnation. But this would involve us in another difficulty; for by law, it is declared, that no man shall be twice put in jeopardy for the same offence; and yet, it is certain, that the inquiry now proposed by the grand jury, would necessarily introduce the oppression of a double trial. Nor is it merely upon maxims of law, but, I think, likewise, upon principles of humanity, that this innovation should be opposed. Considering the bill as an accusation grounded entirely upon the testimony in support of the prosecution, the petit jury receive no bias from the sanction which the endorsement of the grand jury has conferred upon it. But on the other hand, would it not, in some degree, prejudice the most upright mind against the defendant, that on a full hearing of his defence, another tribunal had pronounced it sufficient?- which would then be the natural inference from every true bill. * * * though it would be improper to determine the merits of the cause, it is incumbent upon the grand jury to satisfy their minds, by a diligent inquiry, that there is a probable ground for the accusation, before they give it their authority, and call upon the defendant to make a public defence."