Would an Arizona grand jury indict in the Michael Brown case?

The news recently broke that a grand jury has declined to indict the officer who shot and killed Michael Brown in Ferguson, Missouri. In that case, the officer, Darren Wilson, testified at the grand jury proceedings. In Arizona, it is common for law enforcement to testify at grand jury proceedings, but not as common for a suspect (i.e., someone about whom the grand jury is deliberating) to testify before the grand jury. In the Brown case, Wilson was both law enforcement and the person under scrutiny for killing Michael Brown, which he admitted doing. Arizona has its own set of grand jury laws. Let’s reflect on some of those now, in light of the Michael Brown case.


It is settled law in the State of Arizona that a grand jury proceeding may be challenged for the denial of substantial procedural rights. Rule 12.9, ARIZ.R.CRIM.PROC. The accused is entitled to due process during a grand jury proceeding, requiring the use of an unbiased grand jury and fair and impartial presentation of the evidence. Crimmins v. Superior Ct. In & For Maricopa Cty., 137 Ariz. 39, 668 P.2d 882, 884 (1983).

Arizona has long recognized the historical independence of the grand jury. The purpose of the grand jury is to “clear the innocent, no less than to bring to trial those who may be guilty.” United States v. Dionisio, 410 U.S. 1, 16-17 (1973). In order to fulfill its purpose, the grand jury must “be both independent and informed in order to render a decision free from bias.” Wood v. Georgia, 370 U.S. 375, 390 (1962).

Arizona courts have attempted to safeguard grand jury independence by regulating the prosecutor’s presentation of the evidence and law and also by enforcing the prosecutor’s good faith duty. Justice Feldman of the Arizona Supreme Court described the role of the grand jury as:

The grand jury is neither an arm nor a servant of the prosecution. It has an independent responsibility to determine whether there is probable cause to believe a particular crime has been committed. A further function is to protect citizens against unfounded criminal prosecutions.

Crimmins, supra, 668 P.2d at 886 (Feldman, J. specifically concurring).

In Arizona, the State is also obligated to present to the Grand Jury “exculpatory evidence.” More specifically, while the State is not obligated to present evidence that is “arguably” exculpatory to the grand jury, the State must present evidence that is “clearly” exculpatory. State v. Coconino County Superior Court, 139 Ariz. 422, 687 P.2d 1386 (1984).


It is difficult, if not impossible, to say what an Arizona grand jury would do in the Michael Brown shooting. We note that grand jury proceedings in Arizona, due to their secretive nature and limited witness testimony, do not compare to a real trial. That’s why some indictments are issued by a grand jury but ultimately rejected by a trial jury after hearing all of the evidence, from both sides.

Also, in Arizona, the law on self-defense can be a huge hurdle for the State to overcome to obtain a conviction. That’s because, in Arizona, the State has the burden of proving beyond a reasonable doubt that the actions of the defendant were not self-defense. That’s right, the State must prove a negative: that the defendant was not acting in self-defense, within the limitations of Arizona’s criminal justification laws. We encourage our readers to review the grand jury transcript in the Michael Brown case for themselves. It has been published on many national media websites. Then, ask yourself: would an Arizona grand jury have acted differently in the Michael Brown case?

Most importantly, we grieve for the Michael Brown family, who have suffered the greatest loss. We hope his life and his story cause a positive social change, to include appropriate self-restraint by law enforcement, while keeping everyone as safe as possible.

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