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Getting the Facts Right About the Ferguson Grand Jury Decision

The grand jury decision not to indict Darren Wilson for the shooting of Michael Brown has ignited a firestorm of commentary and disagreement. Debate is to be expected in a large and diverse society such as ours. But as an attorney and a law professor, I am particularly troubled to see so many people relying on incorrect facts to support their position.

Here are several facts a lot of people are getting wrong about the Darren Wilson grand jury proceedings and outcome:

Myth: The grand jury declared Darren Wilson innocent, or, relatedly, the grand jury “acquitted” Darren Wilson.

Fact: Grand juries don’t decide whether someone is innocent or guilty. Nor do they “acquit” people, as do juries in criminal trials. Grand juries simply decide whether there is probable cause to indict someone for a crime.

Myth: The grand jury found that Darren Wilson’s shooting of Mike Brown was justified.

Fact: Aside from determining whether there is probable cause to indict someone for a crime, grand juries don’t make any factual determinations. Saying that there is no probable cause to indict someone — what the jury said here — is different from saying that the shooting was justified.

Myth: The grand jury found Darren Wilson not guilty beyond a reasonable doubt.

Fact: In a criminal trial, a prosecutor needs to prove that a defendant is guilty beyond a reasonable doubt in order to convict him. But the reasonable doubt standard has no bearing on grand jury proceedings. Rather, as I have mentioned, the standard that grand juries use is probable cause. Probable cause is a low standard. I have heard some judges describe probable cause as about 10% certainty, while other commentators hesitate to quantify it but agree that it is quite low. And Sol Wachter’s now much-quoted statement that “by and large” prosecutors could influence juries to “indict a ham sandwich” offers a more colloquial understanding of probable cause.




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