Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police violence through activism and social media with no way of reconciling the grand jury’s decision with what they saw. As a result of increased demands for transparency and accountability in grand jury investigations of police violence, prosecutors, state legislators, and judicial and administrative policymakers have proposed or implemented measures to bring greater transparency to the grand jury process. However, their efforts have had varying degrees of success.
This Article examines efforts to reconcile the doctrine of grand jury secrecy with the public’s need for greater transparency and accountability following the highly visible police killings of Michael Brown, Eric Garner, and Tamir Rice. It argues that most of the attempts to bring greater transparency to the grand jury process fall short because of narrow assumptions about the concept of transparency and deep entrenchment of racial disparities in our criminal legal system. The Article considers how principles that have emerged from the heightened visibility of policing inform a more expansive type of grand jury visibility — one that does not merely seek to legitimize the grand jury process, but rather serves to shift power dynamics between the civilian and state. While increased transparency is not in and of itself a means of solving systemic problems of race and police violence, the ability to see, interpret, and influence how our current models of accountability function provides an important foundation for those working toward a reimagining of our justice systems and greater protections for marginalized minorities.
Nicole Smith Futrell, Visibly (Un)Just: The Optics of Grand Jury Secrecy and Police Violence, 123 Dick. L. Rev. 1 (2018).