08 Jul THERE ARE SEVERAL TYPES OF PROSECUTORS IN THE UNITED STATES. U.S. ATTORNEYS ARE PROSECUTORS IN THE FEDERAL CRIMINAL JUSTICE SYSTEM.
This chapter will focus on the roles of the prosecutor, grand jury, and defense attorney. It must be emphasized that all of these entities have an important role to play in the case even before the pretrial process begins. For example, the right to counsel attaches to varying degrees well before the pretrial process is set into motion. Similarly, when the services of the grand jury are required, it can perform an investigative function well before the arrest stage of the criminal process. Prosecutors, too, perform a great deal of work before the pretrial process.
The Prosecutor
The prosecutor is the official given the task of charging criminal suspects in the name of the government and obtaining convictions of those responsible for violating the law. There are several types of prosecutors in the United States. U.S. attorneys are prosecutors in the federal criminal justice system. District attorneys, or state’s attorneys, are the elected chief prosecutors in state criminal justice systems. Most often, they are elected to head county offices. Below the district attorney are deputy district attorneys or assistant state’s attorneys who actually litigate most criminal cases in court. Attorneys general, whether state or federal, are the main legal advisor to the government in their jurisdictions. Their role is primarily one of legal advising, rather than prosecution. City attorneys are, with some exceptions, the chief legal advisors to city government officials. Most criminal prosecutions are handled at the county level, so this chapter’s discussion is focused primarily on district attorneys and state’s attorneys and their deputies.
Article II, Section 3, of the U.S. Constitution states that the executive branch of the federal government “shall take Care that the Laws be faithfully executed.” This constitutionally mandated duty to execute the law falls on prosecutors. Of course, police officers also execute the law, but prosecutors possess the authority to decide whether to bring formal charges against suspected criminals. As the Supreme Court noted in Bordenkircher v. Hayes, 434 U.S. 357 (1978), “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on his discretion.” Prosecutors do not have unlimited discretion, however. There are important restrictions on their decision to charge. Some of these limitations stem from the Constitution, while others stem from statutes and other sources.
The Charging Decision
The prosecutor generally has the authority to decide whether to proceed with charges. This is known as prosecutorial discretion. He or she can elect not to charge for a number of reasons, even over strenuous objection by the victim or the person reporting the alleged crime. The prosecutor’s discretion also comes into play in the process of plea bargaining (discussed in Chapter 12) in which the defendant can accept a guilty plea for a lesser offense than the one charged. Finally, prosecutors sometimes must answer to authorities that mandate, or at least strongly encourage, prosecution of particular types of offenses. Figure 11.1 presents portions of a federal prosecutor’s charging document (also referred to in some jurisdictions as “information”).
Deciding Not to Prosecute
The most obvious reason for deciding not to prosecute is lack of evidence. The prosecutor may determine that, based on the evidence presented by the police, the suspect is innocent. In this event, there would be no point in proceeding to trial because there would be only a slight chance that a conviction would be obtained. If there is not enough evidence to obtain a conviction, then the prosecutor will likely decide not to prosecute, even if he or she believes the suspect is guilty.
FIGURE 11.1 Portions of a Federal Prosecutor’s Charging Document (Information)
Source: http://www.usdoj.gov/usao/iln/pr/chicago/2008/pr0619_01i.pdf (accessed November 7, 2008).
There are other reasons not to prosecute, other than lack of evidence. For example, even if the state’s case is strong, there may be an incentive not to prosecute. If it appears the defense’s case is stronger, then it may behoove the prosecutor to proceed with charges against a different individual.
Nonetheless, prosecutors are human and, as such, can be influenced by the facts of a particular case. Say, for instance, that a law mandates life in prison for growing in excess of 1,000 marijuana plants. Assume further that a suspect apprehended for violating such a law has a spotless record, is married, and has four children. Would life in prison be the best punishment for such an individual? Or would a fine, community service, or some other sanction be more appropriate? This decision is often up to the prosecutor, and depending on the nature of the case, he or she may elect not to proceed with charges.
DECISION-MAKING EXERCISE 11.1 REASONS FOR NONPROSECUTION
Another controversial reason for nonprosecution is a by-product of the U.S. so-called war on drugs. Civil asset forfeiture statutes permit the forfeiture of money and property tied to criminal activity—most frequently, the illicit drug trade. Many asset forfeiture statutes permit forfeited proceeds to go to the executive branch, which usually means the police, but sometimes prosecutors. Some have argued that when there is not enough evidence to proceed with a criminal case, prosecutors can opt to pursue civil forfeiture, for which the burden of proof is generally lower. And as an added bonus, if a forfeiture action succeeds and a person’s property is forfeited to the state, then the prosecutor may reap a financial reward for selecting a civil proceeding instead of a criminal one. Is the possibility of civil asset forfeiture a legitimate reason not to prosecute? That is, if a prosecutor chooses not to press criminal charges against someone, instead opting for forfeiture, should the decision be considered constitutional?
Another reason for not charging is related to economic factors. It is not possible, given the limited resources that exist in most public agencies (including prosecutors’ offices), to proceed with charges against every suspect. Not having the time to build a case because of a high caseload may effectively force a prosecutor to be lenient with certain individuals.
Challenging the Decision Not to Prosecute
A prosecutor’s decision to not press charges is rarely challenged, but on occasion, higher authorities may get involved when they disagree with a prosecutor’s decision. Failure to press charges can sometimes be questioned by a court, which can provide relief to individuals who wish to proceed with the case. Other times, a prosecutor’s supervisor or other high-ranking official may step in. According to one source, “Many states by statute confer upon the attorney general the power to initiate prosecution in cases where the local prosecutor has failed to act. In practice, however, attorneys general have seldom exercised much control over local prosecuting attorneys.”1
Another way of preventing prosecutors from failing to act or otherwise abusing their discretion is to require them to abide by standards of conduct. These standards provide rules for deciding which cases are worthy of prosecution, while ensuring that prosecutors act in accordance with the law. Figure 11.2 presents portions of the Code of Conduct for Judicial Employees, published by the Administrative Office of the U.S. Courts.
Some U.S. jurisdictions require court approval of a prosecutor’s decision not to pursue charges. The prosecutor is typically required to explain to the court in writing his or her reasons for failing to prosecute. While this approach may seem sensible on its face, the Supreme Court has been somewhat critical of judicial review of prosecutorial decisions. In Wayte v. United States, 470 U.S. 598 (1985), the Court stated that it refused to question a prosecutor’s discretion because “[s]uch factors as the strength of the case, the prosecution’s general deterrence value, the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make.”
In general, if the prosecutor’s decision not to press charges stems from legitimate factors, such as lack of evidence or case backlog, then the decision should be honored. This decision should be honored even if he or she agrees to dismiss criminal charges if the defendant agrees not to file a civil suit.
1Y. Kamisar, W. LaFave, and J. Israel, Modern Criminal Procedure, 9th ed. (St. Paul, MN: West, 1999), p. 894.
FIGURE 11.2 Code of Conduct for Judicial Employees
Source: From Code of Conduct for Judicial Employees. Available Online: http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx (accessed February 16, 2011).
Restrictions on Bringing Charges
Although the prosecutor has broad discretion in deciding whether to bring charges, there are limitations on that discretion. Often, charges may be dropped or a conviction may be reversed if the charges were brought for inappropriate reasons. The prosecution may not be selective in its decision to charge, and prosecution may not be pursued for vindictive reasons.
If a prosecutor acts unfairly, selectively, or vindictively, the prosecuting decision may be overruled. That is, the charges against the accused will be dropped, or in the event that the person is charged and convicted, his or her conviction will be overturned. However, if a prosecutor brings charges for inappropriate reasons and this decision is uncontested, then the charges will most likely stand.
Selective Prosecution
If an individual is targeted for prosecution merely because he or she is a member of a certain group, such as being a minority, then his or her constitutional rights may be violated. This is known as selective prosecution. If a prosecutor’s decision to press charges is selective in nature, the Fourteenth Amendment’s equal protection clause may be violated. For example, in Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Supreme Court stated:
• Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
DECISION-MAKING EXERCISE 11.2 THE DECISION NOT TO CHARGE
Following are the facts reported by the U.S. District Court for the District of Columbia in NAACP v. Levi:
• On May 31, 1971, Carnell Russ, a 24-year-old black, while operating his motor vehicle on an Arkansas highway, was arrested for an alleged speeding violation by Jerry Mac Green, a white state trooper. Russ was accompanied by his wife, their minor children, and an adult cousin. The trooper directed him to the county courthouse. Russ complied and upon arrival, parked his vehicle and was escorted into the courthouse by the arresting trooper and two other white law enforcement officers, Charles Ratliff and Norman Draper. Minutes later, Russ returned to the vehicle where his family awaited. He requested and received from his wife sufficient money to post the necessary collateral. He then joined the three officers who were close by observing his actions. The four retraced their steps with Russ again in custody. A short time thereafter, Mrs. Russ first observed two of the officers leave and minutes later an ambulance depart from the rear of the courthouse area where her husband had just entered in the officers’ custody. She later learned that Mr. Russ, while under detention, had been shot in the center of his forehead by Ratliff and then transported to a hospital. Green and Draper were the sole witnesses to the shooting. Her husband died from the gunshot wound within hours.
Ratliff was indicted and found not guilty of voluntary manslaughter pursuant to an investigation by the state police. Criminal charges were not brought against the other two officers, and the case was closed. Does the prosecutor’s decision not to pursue charges against the other officers seem reasonable?
DECISION-MAKING EXERCISE 11.3 ANOTHER DECISION NOT TO CHARGE
Chief Lord, of the Springfield Police Department, arrested Nancy Simpson for tampering with a witness, Terri Flanders, the alleged victim of an assault by a friend of Simpson’s. Simpson hired an attorney, and discussions with the local prosecutor ensued. Simpson agreed to sign a written release—in which she promised not to sue the city, its officials, or the alleged victim of the assault—if the prosecutor dismissed the criminal charges. The criminal charges were dropped. Is fear of being sued a valid reason not to prosecute?
Since Yick Wo, the Supreme Court has become more specific as to what constitutes selective prosecution. In Oyler v. Boles, 368 U.S. 448 (1968), the Court held that the prosecution’s selection of cases violates the equal protection clause only when it is intentional and is intended to target “a certain class of cases . . . or specific persons.” In that case, the defendant presented evidence that he was the only individual of six sentenced under a particular statute. The Court held that this was not discriminatory because the defendant was unable to demonstrate intent by the prosecutor or provide evidence that he fit the group targeted for prosecution. The Court noted:
Oyler v. Boles, 368 U.S.
(448 [1968])
• The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
Since the Oyler decision, the courts have applied a three-pronged test for determining whether prosecution is selective. It must be shown that (1) similarly situated individuals were not prosecuted, (2) the prosecutor intended for this to happen, and (3) the decision resulted from an arbitrary, rather than rational, classification scheme. An arbitrary classification scheme would be based on, for example, race or sex. A rational classification scheme would be one that considers the evidence against each individual without regard to the color of his or her skin, country of origin, religious preference, sex, or other such criteria.
Selective prosecution is not always prohibited, and may be permissible in some instances. Sometimes, prosecutors aggressively pursue conspicuous individuals, such as celebrities. The courts have allowed prosecution of certain individuals for the sole purpose of discouraging other people from committing the same offense. As one court noted, “Selective enforcement may . . . be justified when a striking example or a few examples are sought in order to deter other violators” (People v. Utica Daw’s Drug Co., 16 A.D.2d 12 [1962]).
Prosecutors can also get into trouble for targeting the most significant offender in a group of offenders. Sometimes, the prosecution may choose to charge one offender instead of another, even though both were suspected of having committed the same offense. When a group of individuals is suspected of having committed various degrees of the same offense, then it is problematic for a prosecutor to charge just one of them. An example of this practice was considered in State v. McCollum, 159 Wis.2d 184 (App. 1990), a case in which a court dismissed prostitution charges against nude female dancers because the dancers’ male patrons were not charged, even though Wisconsin law criminalized their behavior, as well.
Prosecutors may also open themselves up to allegations of selective prosecution by engaging in pretextual prosecution. This occurs when the prosecutor lacks the evidence to charge someone with a particular crime and so charges him or her with a lesser crime. However, prosecutors are rarely chastised for this type of conduct. For example, in United States v. Sacco, 428 F.2d 164 (9th Cir. 1970), a court noted that allowing a prosecutor to pursue lesser charges when the evidence to mount a more serious charge does not exist is perfectly acceptable.
The most recent Supreme Court case addressing selective prosecution was United States v. Bass, 536 U.S. 862 (2002). At issue was a defendant’s request for discovery of the Department of Justice’s charging practices in capital cases. He alleged that blacks were disproportionately charged in such cases and that he was charged because of his race. His argument did not succeed, however. The Court noted that he was required to show “. . . evidence of both discriminatory effect and discriminatory intent” and that “. . . raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.”
Vindictive Prosecution
If a prosecutor’s charging decision is motivated by revenge, then the resulting charge violates the due process clause of the Fourteenth Amendment. Specifically, if a prosecutor charges an individual simply because he or she is exercising his or her constitutional rights, such vindictive prosecution will not be allowed.
Blackledge v. Perry
(417 U.S. 21 [1974])
In Blackledge v. Perry, 417 U.S. 21 (1974), the defendant was convicted in a lower court for misdemeanor assault with a deadly weapon. The defendant filed an appeal with the county superior court for a trial de novo (a new trial), which is sometimes permitted in misdemeanor cases. The prosecutor then obtained an indictment charging the offender with felony assault for the same conduct. The defendant pleaded guilty to this offense and was sentenced to five to seven years. The Supreme Court concluded that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” The Court concluded further that such punishment after the fact must be overturned, unless the prosecutor can explain the increase in charges.
DECISION-MAKING EXERCISE 11.4 WHAT IS SELECTIVE PROSECUTION?
In July 1980, a presidential proclamation was issued requiring certain young males to register with the Selective Service System. This information is used for drafting potential soldiers if the need arises. David Elders refused to register and even went so far as writing letters to government officials, including the President, in which he declared no intention to register. Elders’ case, along with cases involving other men who refused to register, was placed in a “Selective Service” file. Only cases in the Selective Service file were selected for prosecution. Elders was prosecuted for failure to register. He claims the prosecution was selective. Is he right?
DECISION-MAKING EXERCISE 11.5 WHAT IS PRETEXTUAL PROSECUTION?
The district attorney (D.A.) suspects that Corinne Dwyer is running a call-girl service out of her suburban home. The D.A. does not have enough evidence to prosecute Dwyer for her prostitution activities, but he does have sufficient evidence to prosecute Dwyer for abandoning an appliance. Dwyer had put a refrigerator at the end of her driveway with a “Free” sign on it, in violation of a statute that provides that “any person who discards or abandons or leaves in any place accessible to children, any refrigerator, icebox, deep freeze locker, . . . which is no longer in use, and which has not had the door removed or the hinges and such portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor” (California Penal Code, Section 402b). Dwyer is thus charged and argues that she has been unfairly targeted for pretextual prosecution, in violation of her Fourteenth Amendment right to equal protection. What should the court decide?
DECISION-MAKING EXERCISE 11.6 WHAT IS VINDICTIVE PROSECUTION?
Cesar Fresco was arrested for uttering (giving, offering, cashing, or passing or attempting to pass) a forged document, which is a felony punishable by a prison term of 2 to 10 years. He has an extensive criminal history and has committed forgery in the past. The prosecutor offers a plea bargain to Fresco, giving him two choices: (1) He can plead guilty to the crime and the prosecutor will recommend a five-year sentence; or (2) he can reject the plea, be prosecuted under the habitual offender statute, and face a potential life term. The prosecutor tells Fresco, “If you do not accept this agreement, I will prosecute you as a habitual offender and you will go to prison for the rest of your life.” Fresco rejects the plea and is convicted. Later, he sues, claiming that the prosecution was vindictive. Will he succeed?
In United States v. Goodwin, 457 U.S. 368 (1982), a misdemeanor defendant decided not to plea bargain and requested a trial by jury. Before trial, the government obtained a felony indictment against the defendant arising out of the same incident. The defendant was convicted in federal district court on the felony charge. The Court held that “a presumption of prosecutorial vindictiveness was not warranted in this case, and absent such a presumption, no due process violation was established.” The Court went on to note that “. . . only in rare cases [will] a defendant be able to overcome the presumptive validity of the prosecutor’s actions through such a demonstration.” In other words, if the more serious charging decision is made prior to trial, as it was in this case, it is presumed that the prosecutor is not acting vindictively.
Dealing with Overzealous Prosecutors
By charging offenders, prosecutors serve as advocates for the government. In this capacity, they are immune from suit for charging suspects with crimes.2 This is reasonable because imagine what would happen to the criminal process if prosecutors could be sued at every turn for charging offenders!
Prosecutors also act as advocates when they argue the government’s case. They can do almost anything in this capacity to secure a conviction without fear of being held liable. Prosecutors have been shielded from being sued for a variety of actions, including:
• • using false statements at pretrial hearings (Burns v. Reed, 500 U.S. 478 [1991]),
• • using false testimony at trial (Imbler v. Pachtman, 424 U.S. 409 [1976]),
• • failing to disclose exculpatory evidence (Kalina v. Fletcher, 522 U.S. 118 [1997]),
• • fabricating evidence, influencing witnesses, and
• • breaching plea agreements.
In a recent case, Connick v. Thompson, 563 U.S. ___ (2011), the Supreme Court held that a district attorney’s office may not be held liable for failing to train its prosecutors in the event of a single failure by one prosecutor to disclose exculpatory evidence to the defense. This and decisions before it have set the bar to prove prosecutorial misconduct quite high.
Not everyone agrees prosecutors should enjoy absolute immunity, especially in light of recent DNA exonerations and high-profile scandals. According to one critic, prosecutors should only enjoy qualified immunity.
• Absolute immunity frustrates the purpose of civil rights legislation by failing to deter frequent and egregious misconduct. It also hinders the development of constitutional standards and the implementation of structural solutions for systemic problems. Prosecutorial liability—with the safeguard of qualified immunity to prevent vexatious litigation—is necessary to ensure the integrity of the criminal justice system.3
Prosecutors are immune from liability (1) when they act as administrators or investigators and (2) when they make reasonable mistakes. However, if the plaintiff in a lawsuit can show a prosecutor acted as an administrator or investigator and violated clearly established constitutional law, the prosecutor can be held liable.
Recourse
Despite the immunity they enjoy, there is recourse for dealing with overzealous prosecutors. Such consequences may include:
• • Private admonition or reprimand
• • Public reprimand
2M. Z. Johns, “Reconsidering Absolute Prosecutorial Immunity,” Brigham Young University Law Review 2005 (2005): 53–154.
3Ibid., p. 56.
• • Suspension from law practice
• • Permanent disbarment
• • In the case of an elected district attorney, being thrown out of office
Despite the availability of these potential consequences, prosecutors are seldom punished for their wrongdoing. According to the Center for Public Integrity, out of more than 11,000 cases of prosecutorial misconduct, only two prosecutors were disbarred.4 Reprimand was the most common sanction.
The story of Mike Nifong sheds some light on the problem of prosecutorial misconduct. Nifong was the prosecutor in the infamous Duke lacrosse case, where three white Duke University lacrosse players were accused of rape by a black stripper. He was the prototypical overzealous prosecutor. For example, he repeatedly made statements to the press that were unsupported and controversial. He also continued to pursue criminal charges, even as new evidence came to light that would have made securing a conviction difficult.
The state bar association filed complaints against Nifong, and he was ultimately disbarred and held in contempt of court. Since some of Nifong’s actions may not have been consistent with the role of an “advocate,” his immunity may have been “qualified” rather than absolute. He was sued by the wrongfully accused lacrosse players and their families and claimed bankruptcy.
Joinder
Joinder is the combining of separate parties or separate charges into a single legal action. A prosecutor may either (1) bring multiple charges against the same individual in the same trial or (2) bring charges against multiple individuals in the same trial. In determining whether either is appropriate, two questions must be asked: First, based on the jurisdiction in question, is joinder appropriate? Second, if joinder is appropriate, will it be unfairly prejudicial? If joinder is determined to be inappropriate and unfairly prejudicial, the court may allow severance, in which the defendants or charges are separated into separate trials.
The question of whether joinder is appropriate is best resolved prior to trial, but sometimes joinder is not addressed until after trial. Assume, for example, that a single defendant is charged in the same trial for assault and robbery. Assume further that he is convicted on both counts. If joinder is shown to have been inappropriate, the two charges may be severed and decided in separate trials. According to the Supreme Court in United States v. Lane, 474 U.S. 438 (1986), if this joinder has “a substantial and injurious effect or influence in determining the jury’s verdict,” then new and separate trials must be held.
United States v. Lane
(474 U.S. 438 [1986])
Multiple Charges against the Same Individual
According to the Federal Rules of Criminal Procedure, multiple charges may be brought against the same individual under the following circumstances:
When the charges arise out of
• 1. the same criminal event (such as robbery of a convenience store and assault when fleeing the scene of that robbery);
• 2. two separate criminal acts that are tied together in some fashion (such as a convenience store robbery to obtain cash to buy and sell illegal drugs); or
• 3. two criminal acts that are the same or similar in character.5
4Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors,http://projects.publicintegrity.org/pm (accessed November 7, 2008).
5Federal Rules of Criminal Procedure, Rule 8. Available online at http://www.law.cornell.edu/rules/frcrmp/
The third situation can be better understood with an example: If a serial killer uses the same modus operandi against his victims, he may be tried for several homicides in the same criminal trial.
There are a number of strategic reasons for the defense to argue against joinder. First, there is the concern that the jury will not consider the criminal acts for which the accused is charged separately. Another concern is that the jury will view all the evidence against the accused in a cumulative, rather than separate, fashion. Say, for example, that the prosecution presents eyewitness testimony against a defendant accused of robbery. Also assume that the prosecution presents a murder weapon allegedly used by the defendant against the victim of the robbery. The jury may consider together the eyewitness testimony and the murder weapon and arrive at the conclusion that the accused is guilty. But if the robbery and homicide were tried separately, the jury may not arrive at this conclusion so easily. Finally, another defense argument against joinder is that by trying an individual on several charges in the same trial, he or she will have difficulty asserting separate defenses to the criminal acts at issue.
When trying a person for several related crimes in the same trial, the prosecutor must proceed carefully. If the criminal acts are identical, there is the risk that the convictions may be overturned on the basis of the double jeopardy clause in the Fifth Amendment. For example, if the prosecutor charges an individual for both first-degree and second-degree murder of the same victim in the same trial and the individual is convicted of both offenses, then it will be deemed unconstitutional.
Charges against Multiple Defendants
Joinder may also involve charging multiple defendants in the same criminal trial. The Federal Rules of Criminal Procedure state, “Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.”6 In other words, joinder of defendants is reserved in most instances for crimes of conspiracy (crimes where two or more individuals plan or cooperate in a criminal act).
As with joinder of charges, joinder of defendants raises a number of concerns. For instance, the jury may get confused as to who, if anyone, is guilty and simply convict all of the defendants. Or the jury may convict a defendant simply because he or she is associated with another defendant who bore a greater responsibility for the crime. Also, it is conceivable that one defendant may testify against another but then refuse to answer questions on cross-examination, citing self-incrimination concerns.
Although there are strong arguments against joinder, it serves the important goal of promoting efficiency in the court system. Allowing prosecutors to join charges and defendants reduces court backlog and speeds up the administration of justice.
The Grand Jury
According to the Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” This part of the Fifth Amendment cannot be fully understood without considering the time in which it was written. The framers of the Bill of Rights fear that in certain situations, the prosecutor, as a representative of government, could become too powerful in making charging decisions. The framers believed that the grand jury would be a method of keeping the power of government in check.
6Ibid.
Despite that intent, the grand jury is no longer quite as independent as the framers had hoped. Instead, it is now highly dependent on the actions of the prosecutor. Grand juries still perform important investigative functions, and they are quite powerful in terms of, for instance, being able to subpoena witnesses and records. But their role today is tied closely to the goals of the prosecutor. In fact, almost every state makes the prosecutor the main legal adviser of the grand jury and requires him or her to be present during all grand jury sessions.
The pool from which a grand jury is selected must be a fair cross-section of the community.
Even though the Fifth Amendment suggests that indictment by grand jury is guaranteed for certain offenses, this right has not been incorporated so as to apply to the states. In the 1884 decision of Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court stated that indictment by a grand jury is not a right guaranteed by the due process clause of the Fourteenth Amendment. The Court stated:
Hurtado v. California
(110 U.S. 516 [1884])
• [W]e are unable to say that the substitution for a presentment or indictment by a grand jury of [a] proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
It should be emphasized that although the right to grand jury indictment has not been incorporated to the states, many states do, in fact, require this method of prosecution. Several states do require that, for the most part, felonies are to be prosecuted only by grand jury indictment. The same is true for the federal system. Most states, however, permit prosecution by either indictment or information. See Figure 11.3 for an overview of the mechanisms for filing serious charges in each state.
In states that permit either indictment or information, the choice of one or the other depends on the circumstances of each case. Typically, grand jury indictment will be chosen when (1) the case is of great public or political significance; (2) the investigative power of the grand jury is useful; (3) the grand jury may be able to issue an indictment more quickly compared to holding a preliminary hearing and then issuing an information indictment; or (4) one or more witnesses is hesitant to speak in open court, preferring the secrecy of grand jury proceedings.
How a Grand Jury Is Constructed
A grand jury can be impaneled by either the court or the prosecutor. Usually, the court has this responsibility, but prosecutors are increasingly given the ability to decide whether a grand jury is necessary.
FIGURE 11.3 Charging Methods for Serious Crimes by State
Source: D. B. Rottman and S. M. Strickland, State Court Organization, 2004 (Washington, DC: National Center for State Courts, 2004). Note that some states requiring grand jury indictment do so only for certain offenses. For example, Texas requires grand jury indictments for felonies, not misdemeanors.
In larger jurisdictions, a grand jury may not be a single body—several grand juries may be acting at the same time. One or more could be performing investigative functions, and others could be working on specific cases.
Duration
Once a grand jury has been convened, its members serve for a specified period of time. A term can last from one to three months, but sometimes less, if the court or prosecutor believes that further deliberation is unnecessary. Under the Federal Rules of Criminal Procedure, a regular grand jury cannot serve for a period longer than 18 months, unless the court extends the service “upon a determination that such extension is in the public interest.”7 Fortunately, people selected for grand juries do not have to meet every day; usually, a grand jury meets several days a month.
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