Ferguson, Eric Garner, and Grand Juries in Nebraska

With recent events in Ferguson, MO and with Eric Garner in Staten Island, NY, the term “grand jury” has become a much-discussed topic. There has been confusion as to the composition and purpose of a grand jury. Before getting to the topic of grand juries, however, it is important to give a brief overview of how felonies progress through the Nebraska state court system.

Felonies in Nebraska are tried in county District Courts. Before a case is tried in a District Court, the prosecution must put forth enough evidence to show that a crime may have been committed and that there is probable cause to believe that the accused committed it. This burden is not nearly as high as “beyond a reasonable doubt”, the burden the State must prove in order for the accused to be found guilty at a trial.

The Fifth Amendment to the Constitution requires that before an accused stands trial, an indictment must be returned by a grand jury. In many states, however, including Nebraska, the role of a grand jury is replaced by a judge. In Nebraska, this finding is made in County Court during what is called the “preliminary hearing”, during which witnesses testify and evidence is presented. Once probable cause is found, the case is “bound over” to the District Court where the case can move towards trial.

In certain cases, however, a grand jury is convened and asked to consider whether there is enough evidence to return an indictment, or formal charges, against the accused. In Nebraska, a grand jury is made up of sixteen members and three alternates, chosen at random, who operate in secrecy while deliberating. A special prosecutor, appointed by the District Court, presents evidence and questions witnesses in the presence of the grand jury, much like in a trial. Unlike in a trial, however, traditional rules of evidence are not required and the grand jury members may make direct inquiries regarding evidence, may question witnesses, and may request additional witnesses. There is no time limit to how long a grand jury has to consider the evidence.

There are three circumstances in which a grand jury is empaneled in Nebraska: 1. At the request of a District Court judge; 2. When a petition, signed by at least ten percent of the registered voters in a county, is successfully submitted to the court; and 3. When a person dies while being apprehended or while in custody by law enforcement or detention personnel. Given the recent events in Ferguson and with Eric Garner, it is this third circumstance that is getting attention.

What is often lost in the discussion surrounding grand juries is that the purpose of a grand jury is not to determine guilt or innocence but rather to determine simply whether a crime was committed and if probable cause exists to believe that the accused committed that crime. This is the most critical and misunderstood difference between a grand jury and a trial jury. It is important to keep this difference in mind as the role of a grand jury in our criminal justice system comes under scrutiny.

If you have any questions regarding a jury, grand jury, or any other criminal matter, call the attorneys at the Berry Law at (402) 466-8444.

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