Abstract

Excerpted From: Ilana M. Friedman, How Grand Jury Secrecy and Bias Protects and Perpetuates Police-Suspect Impunity, 103 Oregon Law Review 379 (2025) (100 Footnotes) (Full Document).

In November 2014, Cleveland, Ohio, police officers were dispatched to a public park after receiving reports of a male pointing a pistol at random people. Importantly, the caller repeated that the pistol was “probably fake,” and the individual was “probably a juvenile”; however, these details were not conveyed to responding officers. Within three seconds of arriving on scene, Officer Timothy Loehmann shot Tamir Rice twice, ultimately leading to his death a day later. Prosecutors did not formally charge Officer Loehmann for this shooting.

In February 2022, police in Maplewood, Minnesota, served a no-knock search warrant linked to a homicide investigation and entered an apartment where Amir Locke was sleeping. Locke, who was not named in the warrant and was not a target of the homicide probe, was startled when police officers yelling commands rushed into the apartment. Wrapped in a blanket, Locke sat up while holding a gun. Officer Hanneman shot Locke three times within ten seconds from the time that the Minneapolis Police SWAT team had arrived. Thirteen minutes later Locke was pronounced dead. Prosecutors did not formally charge Officer Hanneman for this shooting.

In May 2023, Indianola, Mississippi, officers responded to a residence after receiving a domestic disturbance call. When police arrived, they drew their service-issued firearms and ordered people inside the residence to come outside. Sergeant Greg Capers shot 11-year-old Aderrien Murry when he walked around the corner of a hallway in the residence to enter the family's living room. While Murry ultimately survived, prosecutors did not formally charge Sergeant Capers for this shooting.

These shootings, alongside the deaths of Eric Garner, Breonna Taylor, Ronald Greene, Tyre Nichols, and numerous others have renewed demands to hold police officers accountable for their fatal uses of force. Theoretically, various avenues of accountability exist, such as termination from employment, civil lawsuits, and criminal prosecution. Borrowing from Hill, Stinson, and Levine, I focus my inquiry in this Article on the criminal law as it regards prosecutorial decision-making surrounding police-involved fatalities and other severe uses of force, a particular facet of “violence-related crime.” Accordingly, this Article focuses on the prosecution of police officers for alleged criminality.

The first step in criminal adjudication is through criminal indictment, or formally charging an officer with a crime. Indictment, hypothetically speaking, seems promising as American prosecutors have expansive and “virtually unreviewable” discretionary power, making them the most powerful actors in the criminal legal system. Moreover, in considering the statistical probability of indictment, the overwhelming majority of criminal cases are indicted by grand juries. Accordingly, the grand jury today is known as a prosecutor's rubber stamp due to its pro forma tendency to almost always return true bills in favor of indictment. However, police-suspect charging declinations in the cases detailed above stand in stark contrast with the popular idea that a grand jury would indict a ham sandwich if asked to do so. This is because relative to the tens of thousands of civilian complaints received annually, and despite the presence of incriminating evidence, police officers are seldom indicted, much less convicted, for violent crimes.

To this end, data collected by the Bureau of Justice Statistics indicates that in 2002 “[l]arge State and local law enforcement agencies--those with 100 or more sworn officers--received more than 26,000 civilian complaints” about police use of force. About 7-10% of these excessive force complaints were sustained by internal investigators. However, “nonfederal law enforcement officers were arrested nationwide during 2005-2011 at a rate of 0.72 officers arrested per 1,000 officers, and at a rate of 1.7 officers arrested per 100,000 population nationwide.” Compare this to the violent crime arrest rate of the civilian population which hovered between 172-207 per 100,000 inhabitants during the same period. Indeed, despite American police officers killing around 1,000 people every year, from 2005-2015 prosecutors filed only 302 murder or manslaughter charges. While it is important to avoid the suggestion that all police fatalities are indictable offenses, scholarship demonstrates that police misconduct is under-investigated, and even when evidence theoretically supports prosecution, officers rarely face trial.

What explains this dearth in police-suspect indictment? While prosecutors possess considerable occupational power, we know relatively little about the contexts and challenges they face when attempting to indict police officers following allegations of criminality. The prosecutorial black box of obscurity is particularly notable as it relates to feasibility of police-suspect indictment, a crucial stage within the criminal legal process, which raises “vexing equitable questions” about the prospect of police accountability more broadly.

This Article demonstrates that the operation of legal rules within the grand jury context clarifies the discrepancy between civilian complaints, incriminating evidence, and police-suspect indictments. In this Article, I present three features that explain the rarity of police- suspect indictment. First, grand juries are secret legal proceedings. In challenging cases or those in jurisdictions where legal officials are less motivated to investigate claims of police criminality, prosecutors can exploit grand jury confidentiality to conceal weak evidence. Prosecutors may deflect responsibility by attributing the lack of indictment to the grand jurors, using the grand jury's role as the ultimate decision-maker as a shield to protect themselves from criticism.

Second, I find that the grand jury selection process is cursory in comparison with petit juries, particularly when accounting for ideological opinions among jurors. This procedural limitation is important because police-suspect prosecutors reported encountering grand juries that are ideologically under-representative, politically conservative, and who, consistent with public polling, tend to support law enforcement. I argue the unrepresentative ideological composition of grand juries carries important implications for the feasibility of police-suspect indictment.

Third, prosecutors not only confront grand jurors focusing on the characteristics of the victims of police violence, rather than police-suspects, and exhibiting the tendency to victim blame in order to justify an officer's use of force, but they also encounter grand jurors who defer to police officer decision-making. Such an atmosphere adds to our understandings of how the attitudinal compositions of grand juries may influence the lack of indictment of police officers accused of criminal misconduct and raises questions about fairness, justice, and accountability in American criminal courts.

This Article proceeds in four parts. Part I introduces the theoretical frameworks for various questions involving police-suspect grand juries, including the structure and function of contemporary grand juries, the law surrounding examinations into an officer's use of force, modern prosecutorial influences, findings from social psychologists on the impacts of diversity on jury decision-making practices, and how police-suspect grand juries implicate unique political pressures. In this Part, I combine literatures on grand jury decision-making, the law, prosecutorial discretion, and public polling data to better understand the complex and multifaceted environment involved with police-suspect indictment.

Part II presents a description of my original methods of data collection. To investigate this setting, I conducted forty-seven in-depth, semi-structured interviews with twenty-one respondents in five field sites around the country. Respondents included civilians and legal professionals working in the domain of police-suspect investigations and prosecutions.

Part III clarifies why police-suspect prosecutors have trouble filing and winning indictments, including the secrecy surrounding grand jury procedures, limited grand jury selection processes, and the unrepresentative ideological composition of grand juries, which skew more politically conservative.

Finally, Part IV presents four solutions to the problems uncovered in the previous Parts of this Article, including the dissemination of publicly available prosecutorial explanations regarding their grand jury presentations, the use of special grand juries, the use of updated forms of jury empanelment, and the development and implementation of federal resources to expand police-suspect prosecutorial expertise and experience.

[. . .]

This Article builds upon research arguing that legal rules do not “mechanically translate” into outcomes by describing how police-suspect indictments are products of complex social environments where legal actors make choices given resource constraints, occupational pressures, and ideological preferences. Venire sampling procedures and the technical restrictions used in formulating jury pools affect who is excluded and included within a deliberation room. As a result, prosecutors encounter a politically and ideologically moderate group of community members, oftentimes skeptical of victims and hesitant to second-guess the dynamic and complicated situations inherent to policing. Prosecutors perceive that grand jurors' focus, questions, and deliberate calculations on the reasonableness of an officer's use of force are products of their individual ideological orientations. Prosecutors share that grand jurors are ideologically predisposed to sympathize with the complicated nature of policing, which leads to victim blaming and restricts their willingness to question an officer's split-second decision-making.

This work exposes implications for the study of law and society and provides salient examples of the politicization of the criminal legal system. First, personnel changes like the election of “progressive prosecutors” are primarily symbolic and have limited import for key legal outcomes. This Article demonstrates that elections of reform-oriented prosecutors have modest impact on key legal outcomes like indictment when prosecutorial power is checked or limited by uncompromising grand jury members. Second, district attorneys as elected political officials emphasize the importance of and the connections between the politicization of local electorates regarding criminal legal issues and the criminal legal process itself. While electability pressures may become a strong motivator for prosecutorial decision-making, prosecutors who have greater career aspirations may end up with a jury pool that does not enable them to win indictments because lay decision-makers' ideological orientations may conflict with those of the district attorney.

Finally, this Article builds upon scholarship documenting how the criminal law does not operate neutrally. Evidence presented within this Article establishes that when a grand jury considers police-suspect indictment, the processes are categorically different than grand jury processes involving lay criminal suspects. This dissimilarity involves different ethical calculations, longer discovery periods, more extensive collections of documents and relevant testimony, and time-intensive presentations of evidence. Additionally, prosecutors described their perceptions of a higher evidentiary burden required in police-suspect cases, necessitating the establishment of extralegal evidentiary thresholds beyond probable cause, even at the preliminary stage of indictment.

Accordingly, the colloquial phrase, “a grand jury will indict a ham sandwich,” appears not to be the case within the police-suspect context. Thus, discordant and predatory power arrangements that are institutionalized in legal outcomes reify who is privileged and who is powerless in society, explaining the rarity of police-suspect indictment. Ultimately, police-suspect prosecutorial discretion and grand jury decision-making reveal how occupational status and professional privilege among law enforcement may afford protection from routinely violent procedures of the criminal law.

Assistant Professor, J. David Rosenberg College of Law at the University of Kentucky.