Tuesday, December 9, 2014


©Wendell Griffen, 2014
Little Rock, Arkansas

            Now that a St. Louis County, Missouri grand jury has decided that probable cause does not exist to charge former Ferguson, Missouri police officer Darren Wilson with a crime for shooting Michael Brown, Jr. to death on August 9, 2014, let’s consider what probable cause means.  When I taught pretrial criminal procedure to law students I included a PowerPoint slide titled “54 Words to Remember.”  Here are the words:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

            Law students, lawyers, law professors, and judges recognize those 54 words as the complete text of the Fourth Amendment to the U.S. Constitution.  In the United States, no person can lawfully be arrested for an alleged crime without probable cause being shown that he or she committed the crime.  The Fourth Amendment, therefore, protects people from being arrested—and an arrest is a “seizure”—reasonably reliable information that they have committed crimes. 

            Reasonably reliable information that creates probable cause does not need to be uncontroverted.  In fact, reasonably reliable information sufficient to establish probable cause can be hearsay that might otherwise not be admissible during a criminal trial due to the rule of evidence that bars hearsay. 

And reasonably reliable information sufficient to establish probable cause need not consider information that might, at trial, raise reasonable doubt on whether a person committed a crime.  At trial, evidence that might show justification for conduct that would otherwise be a crime is relevant to establish reasonable doubt.  Probable cause does not require proof beyond a reasonable doubt.  Therefore, probable cause that someone committed a homicide—meaning caused the death of another person—doesn’t consider information that would support a possible defense such as defense of oneself or others or lack of mental capacity to form the necessary mental state to be convicted of a crime. 

Basically, a prosecutor has three tasks when deciding whether to charge someone with committing a homicide, to use the Darren Wilson shooting of Michael Brown, Jr. as an example.  First, the prosecutor must gather the information related to the homicide from the police investigation.  Prosecutors do not investigate homicides.  That is a police function.  So the prosecutors receive information from the police investigators. 

Then prosecutors evaluate the information provided by the police investigators.  That evaluation aims to answer several questions:  (1) what happened; (2) who are the people with information about what happened; (3) is the information provided by those informants reasonably reliable; and (4) if so, what criminal laws fit the reasonably reliable information.  Prosecutors engage in that four-part evaluation on their own to determine whether to arrest a suspect. 

Most criminal charges are based on that internal evaluation by prosecutors acting alone.  But prosecutors also have the option of presenting their information surrounding probable cause to a grand jury of citizens selected from the public.  Whenever that happens, the grand jury must decide based on the information the prosecutor presents whether probable cause exists to charge a suspect with having committed a crime. 

Grand jury proceedings are secret and under the total control of prosecutors.  There are no judges to explain the law, no defense attorneys to challenge witness accounts, and no public access to grand jury proceedings. The rules of evidence do not apply.  Witnesses are placed under oath before testifying about the information they possess concerning the suspected crime. 

The ultimate task of a prosecutor is to present grand jurors with reasonably reliable information that a crime happened and that a known suspect committed it.  Prosecutors decide who will testify, the schedule that witnesses will testify, and how witnesses will be questioned during grand jury proceedings.  Prosecutors decide what charges to submit for the grand jury to consider.  Prosecutors decide whether to allow a suspect to testify, and then decide how the suspect will be questioned. 

The prosecutors who handled the Darren Wilson grand jury knowingly called witnesses who offered conflicting accounts of the fatal encounter between Wilson and Michael Brown, Jr. They allowed Wilson to testify after telling grand jurors to evaluate his testimony and conduct based on a Missouri statute that was invalidated by a 1985 U.S. Supreme Court ruling, Tennessee v. Garner, which held that use of deadly force to apprehend a fleeing suspected felon is unreasonable under the Fourth Amendment. 

The prosecutors in State of Missouri v. Darren Wilson refused to simply present reasonably reliable incriminating information that allowed grand jurors to decide that Darren Wilson committed a specific crime.  Instead, the prosecutors essentially dumped the police investigation file and told the jurors to figure out whether the dumped information was reasonably reliable to show if Wilson committed any of five possible crimes.

The truth for prosecutors, as for anyone else, is obvious.  When you aim at nothing you are bound to hit it. 

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