In August, Ferguson MO police officer Darren Wilson used deadly force in self defense against a larger, aggressive male he thought was going to kill him. The case was submitted to a St. Louis County, MO grand jury for a review of the evidence and after hearing testimony from Wilson along with the other evidence, last month that grand jury refused to indict Wilson for any crimes. This spurred questions about grand jury procedures, so we asked our Affiliated Attorneys the following question:
It is the Network’s position that except for giving the facts of the crime committed against them, members should not give a formal statement to police until legal representation is present. Following this line of thought, if called before a grand jury, should a client refuse to testify and likely be indicted or testify and hope for a no true bill? Why?
William W. Cheeseman
Law Office of William W. Cheeseman
1124 E. Cherry, P.O. Box 343, Troy, MI 63379
I can drive to Ferguson, Missouri in 35 minutes and know several folks involved there, but your question is in general terms and as expected from a lawyer, the answer is “it depends.” By the time an incident would be ready to be submitted to a grand jury, the preliminary investigation should be complete. For the member who has had counsel from the earliest possible moment and has not given a statement to the police, that investigation does not have the benefit of the member’s input. Able counsel will know sufficient facts to make a decision as to whether the member should make a statement or not. In every case, that’s not even considered until counsel has completed his own separate investigation.
If the member decides not to make a statement, he may be subpoenaed to appear before the grand jury and he must appear. His counsel gets to wait in the hall.
However, the member cannot be compelled to testify, nor can anyone else, if they properly invoke their rights under the 5th and 14th amendments, written on a card by able counsel so they don’t get it wrong.
It is unusual to bring in a defendant unless there is more than one, in which case the government will grant immunity to the defendant in exchange for his truthful testimony. Few defendants want anything to do with a grand jury and if they did want to testify, it would only be by invitation of the prosecutor.
The situation in Ferguson was somewhat unique in that the prosecutor did not parse out the evidence to the jury; he let them have everything. By the time Officer Wilson testified, the investigation was complete. Sufficient time had passed from the incident, he had been counseled and he asked to testify and was allowed to do so. Officer Wilson was not compelled to do so.
In light of all the above, if you believe that your actions were justified and you are summoned to the grand jury you would want to testify, just like Officer Wilson did. If you are not truly convinced your actions were justified, take the 5th and save it for trial if a true bill is passed.
William Sylvester Hammett
Cobb Dill & Hammett Law Firm
270 W. Coleman Blvd, Ste. 1B, Mt. Pleasant, SC 29464
I do not believe the posed question will ever affect members in my home state of South Carolina. Here, proceedings involving a grand jury are covered in S.C. Const. Art. V, Sec. 22; S.C. Code Section 14-7-1510.
Basically, the grand jury is made up of 18 private citizens and it sits for one year. They hear the state’s evidence and find bills of indictment in cases where they are satisfied that a trial should be held. The grand jury is sworn and instructed by the court as to the applicable issues of law before they begin their inquiry.
The solicitor may not appear as the sole witness (i.e. there would be more than just the solicitor telling what happened), but the defendant has no right to be present and no right to counsel. In fact, the defendant is generally not permitted to present evidence. The solicitor may not be present during deliberations, which are secret and into which no inquiry can be made.
Thus, except for the recent newsworthy happenings in our neighboring state to the northwest, I have never heard of a defendant being asked, let alone, required to speak to a grand jury. I therefore conclude that it will not happen here, and even if it did, it would not happen so quickly as to prohibit the Network from providing representation to a member in this situation. Just because a defendant has no right to counsel does not mean he or she cannot have an attorney. It just means that the state cannot be compelled to provide representation.
For a further summary of how grand juries work, I have provided the additional overview of the process. If 12 of 18 members find probable cause to believe that a crime has been committed by the person named in the indictment, the grand jury will “true bill” the indictment, and the defendant will be made to answer to the charges. If the grand jury fails to find probable cause, it will “no bill” the indictment and charges are dismissed. The grand jury can also take no action and send the indictment back for more investigation. All findings are reported to the presiding judge.
An indictment is a charge instrument, an accusation found and presented by a grand jury stating that a person has done some act, or been guilty of some omission, which by law is a public offense.
An indictment is a condition precedent to a criminal trial and every element of the crime must be set forth in the indictment and must be proved at the trial beyond a reasonable doubt before a defendant can be convicted.
John P. Sharp
Sharp & Harmon
984 Clocktower Dr., Springfield, IL 62704
I would certainly encourage anyone involved in a shooting scenario to remain silent until speaking with legal counsel. Personally, I would not advise a client to even “give the facts of the crime committed against them.” The reason for this is that the client will most likely be in a mental state affected by adrenaline, shock, or fear. Answering even what they believe to be basic questions “about the crime committed against them” may be akin to opening the floodgates where they keep talking and saying more and more, perhaps answering questions at a time when they are not thinking clearly.
Those answers or statements, when taken down by a police officer, may be disastrous for the client down the road. When those statements are put up for review in the cold light of days later, it is too late to say, “that’s not what I meant,” or “I was mistaken.” Police agencies generally do not question officers immediately after police involved shootings. It sometimes can take a few days for a person's mind to calm down and for facts to come into focus.
Secondly, if a defendant is called before a grand jury, you cannot give a simple “yes, they should testify,” or “no, they should not.” A grand jury may be convened fairly quickly. An attorney has to evaluate what they know about the situation, whether they believe the client’s version of the shooting, and whether or not information the attorney may have learned supports the client’s version of events.
I would think most attorneys, without having spent quite some time with a client and reviewing what information they may be able to obtain about the incident, would never advise a client to go before a grand jury.
In most situations, a defense attorney would not have access to the police reports of the investigation at the point of a grand jury proceeding. The attorney for Officer Wilson may have been kept “in the loop,” or have garnered more information because his client was a police officer, helping him make the decision to put Officer Wilson before the grand jury.
Deciding whether or not to testify before a grand jury is one of the biggest decisions to make, but any attorney would certainly want as much information, if they can get it, before advising a client either way.
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250
When a citizen is potentially the subject of a criminal investigation, it is never wise to give a statement to police until the citizen has conferred with an attorney. The situation has obviously been stressful, thoughts are racing and the urge to talk and explain is great. It is much wiser to first consult with a competent lawyer and have the benefit of his or her advice before making the decision as to whether to give a statement or not. And, of course, to have that lawyer present if a decision to give a statement is made.
The subject of a criminal investigation, in Florida, is never “called” to appear in front of a grand jury. They are “invited” and must waive their rights if they choose to appear and testify. The decision whether to testify must be based on the facts and circumstances unique to each individual case. There can be no blanket rule. Again, an attorney who is experienced in defending self-defense cases should be consulted before any decision to testify is made.
Michael W. Maurizio
Maurizio, Campanella & Sharpe
P.O. Box 1849-1508 W. Main St., Marion, IL 62959
In response to the question posed, my answer is “NO,” a defendant should exercise his Fifth Amendment right and not give testimony before the grand jury. As a general rule, at least in Illinois’ First Judicial Circuit, grand juries seldom subpoena defendants to testify and instead rely on the testimony of police, investigators and victims. If I had a client-defendant that was subpoenaed, unless I was 100% sure he/she had not committed the alleged crime, I would direct them to stand on the Fifth Amendment. The grand jury only needs evidence of probable cause to indict, an extremely low level of “proof.”
If the client testifies it will likely make little difference regarding probable cause and at trial the state will use his/her own grand jury testimony to impeach him/her if there is one iota of difference in testimony he/she might give. Why give the state that opportunity? At least at trial it takes beyond a reasonable doubt to convict. If you really need the client’s testimony, wait until then.
Law Office of Gregg Schaaf
7 Washington Street, Cumberland, MD 21502
I am not prepared to give a blanket answer to this question that would apply in most jurisdictions and/or in most circumstances. The same answer may not apply in all jurisdictions or with different facts. If the Ferguson, MO facts occurred where I primarily practice, the attorney and client should prepare together for the witness’ testimony, and then the client should give his testimony.
The client should be educated as to the standards applicable in the situation, and to the extent possible, what other evidence is likely to be presented to the grand jury.
Then the client and attorney should work together to prepare the client to explain why he reasonably believed his life to be in danger, and why he reasonably did what he reasonably believed necessary to protect his own life in the circumstances. The client should be put through practice interrogation by at least one more attorney in addition to me. This is in part to acquaint the witness with the fact that he may face an unfamiliar style but is in part also to get the benefit of the other attorney’s insights and advice.
If the facts were a little different, it could be that in some jurisdictions the indictment would be such a near certainty that there is nothing to be gained by giving the prosecutor an opportunity to tie the defendant down to a story and nothing to be gained by giving the prosecutor an opportunity to learn about how the witness will respond to questioning. Therefore, I would not presume that what makes sense in my jurisdiction remains true in other jurisdictions without consulting with another attorney from the jurisdiction where the grand jury will sit.
John R. Monroe
9640 Coleman Rd., Roswell, GA 30075
It is important to be aware that the Ferguson use of a grand jury is far from typical. As the old saying (correctly) goes, a prosecutor can get a grand jury to indict a ham sandwich. Grand jury proceedings are secret and one-sided. The suspect (if there is one) has no right to be present or offer evidence. The prosecutor presents to the grand jury only the evidence the prosecutor wants the grand jury to see. In general, the prosecutor is acting as an advocate for indictment. Because he controls the process and the grand jury follows his lead, he has a tremendous upper hand.
The Ferguson case is different. I doubt the prosecutor was advocating for indictment. If the prosecutor wanted an indictment, he probably could have gotten one.
All he had to do was show the jury evidence that the officer killed the deceased. He did not have to offer evidence of justification (which he apparently did by calling the officer as a witness). In essence, the DA was using the grand jury for political purposes, so he did not have to take the heat for the decision.
In a “normal” situation, the state would not call a suspected murderer (or attempted murderer) as a grand jury witness. This is especially true where there is a potential justification or defense to the shooting. Unless the case was politically charged (as in Ferguson), a prosecutor would decide for himself if he wanted to charge the suspect. If he did want to, he would advocate for an indictment (and almost certainly get one). If he did not want to, he would not present the case to the grand jury in the first place.
In direct answer to the question, though, if I had a client who was a shooting suspect called before the grand jury in the shooting case, I cannot imagine that it would be a good idea to testify. The DA is going to get an indictment if he wants one. The chances of successfully talking a grand jury out of indicting are near zero. The chances of incriminating yourself if you make substantive answers are near 100%. The client would have very little ability to control the course of the proceeding (and for that reason may not even be allowed to tell the part of the story he wants to tell). There is no way of knowing what else the prosecutor presents to the grand jury. Testifying would in all likelihood be a horrible idea.
A big “Thank you!” to each Network affiliated attorney who responded to this question. This month’s column publishes only half of the responses submitted, so readers are encouraged to come back next month to read the second installment.