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Most of the nation is still reacting from the lack of indictment by the Missouri grand jury against Officer Darren Wilson for the killing of 18-year-old Michael Brown in Ferguson, Missouri. U.S. citizens of all races took to the streets in both peaceful and non-peaceful protests at the unsettling news, and many legal experts offered their opinions on the decision of the grand jury as well.

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Some thoughts of the handling of the grand jury process that have drawn a lot of attention stem from a previous Justice Antonin Scalia opinion, based upon his 1992 explanation of the role of a grand jury in the Supreme Court case of United States v. Williams. In the opinion of this case, Justice Scalia stated:

 It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Justice Scalia, joined by four other Justices, held that the Constitution does not require exculpatory evidence (i.e. – Evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant) to be disclosed, even when it is directly contrary to the prosecutor’s theory of guilt. That is partly because the grand jury’s role is not to determine guilt or innocence, but rather to decide whether there is enough evidence of a crime that a conviction is possible.


Upon an accusation or allegation of a person committing a felony, a grand jury convenes to determine if the alleged criminal should be brought upon charges. Evidence is presented by the District Attorney/Prosecutor of the jurisdiction in which the crime was committed. The grand jury does not determine whether the alleged is guilty or not, but they do determine based upon a standard of “probable cause” whether or not a crime actually took place. Evidence introduced to the grand jury will only include key facts surrounding the incident.

The grand jury in Missouri consists of twelve members, of which, nine have to agree to an indictment being brought against the alleged before charges are brought for any crime committed. A “true bill’ will be brought against the accused should the nine members of the grand jury agree there is probable cause. Nine of the jurors in Darren Wilson’s case are White.

What is stated to have happened, in contrast to Justice Scalia’s discussion regarding the grand jury’s role, is the allowance of Darren Wilson to testify for hours before the grand jury and alleged presentation of copious amounts of exculpatory evidence. McCulloch is said to have treated the grand jury proceedings as a criminal jury trial by presenting them with all available evidence, both for and against charging Wilson. This was not required by law, and is believed to have happened to reduce the chances for Darren Wilson to be indicted.


The prosecutor has a lot of leeway as to what is presented to the grand jury and, in this case, is believed to have allowed unnecessary testimony by Wilson in order to avoid an indictment. As stated by Eric Citron on the SCOTUS Blog:

It means that when a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland. But once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty.

Rashida Maples, Esq. is Founder and Managing Partner of J. Maples & Associates ( She has practiced Entertainment, Real Estate and Small Business Law for 9 years, handling both transactional and litigation matters. Her clients include R&B Artists Bilal and Olivia, NFL Superstar Ray Lewis, Fashion Powerhouse Harlem’s Fashion Row and Hirschfeld Properties, LLC.


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