The grand jury process is but one of the checks and balances on the power of the government to make sure a criminal prosecution is fair. By now , everyone is familiar with the grand jury in Ferguson , Mo. This week, I watched some of the press conference by the prosecuting attorney. Practicing in Tennessee much of what happened is foreign under Tennessee jurisprudence.
NPR reported that sixty witnesses testified over seventy hours. In a rare move , the prosecuting attorney Robert McCulloch released all the evidence including the transcripts. He even presented exculpatory evidence to the grand jury. The result was that the grand jury failed to return an indictment. He even questioned the witnesses.
Rule 6 of the Tennessee Rules of Criminal Procedure sets out the powers and duties of the district attorney and the members of the grand jury. Here are some key differences between the Ferguson grand jury and the grand jury process in Tennessee ;
- In Tennessee , the district attorney has no authority to subpoena witnesses to appear before him for investigative purposes. See Graves v. State.
- The district attorney has no power to call witnesses before the grand jury. See Warner v. State.
- The district attorney’s sole role is to give legal advice .See Rule 6(h) of the Tennessee Rules of Criminal Procedure.
- The grand jury may refuse to hear testimony of witnesses brought before it by the district attorney. In fact , a witnesses may testify from hearsay evidence. A longtime practice of the Davidson County District is to have the district attorney’s investigators testify rather than the live witnesses.
- It is proper for the grand jury to record the testimony but not the district attorney.
The bottom line is that the grand jury process differs from state to state. What happened in Ferguson , Mo. would never happen in Nashville , Tn.