How does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.
A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.
Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.
The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.
Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.
Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.
The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.
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