Grand jury is a double-edged sword

Jefferson City Criminal Defense LawyerHow 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.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

 

Are the police allowed to lie to me?

Most of us grow up being told that the policeman is our friend. We are not taught that he would lie to us. Some think that the police are not allowed to lie. This is so ingrained that even drug dealers believe it. This is why police reports and surveillance audios so often reveal a drug dealer asking a customer:

Dealer: “Are you a cop?”
Buyer: “No.”
Dealer: “OK.”

Busted. Yes, it’s true, the police are usually allowed to lie to citizens when they are fighting crime.


Lying about giving a statement:

If a suspect is arrested by the police, the police must BEGIN with a little straight honest talk. They read the person his Miranda rights:

 

 

 

After that, they can lie to and deceive a suspect in order to get a confession. And they can go pretty far before the court will draw the line and declare such confession to be coerced or involuntary. The police might tell a suspect:

  • That an accomplice implicated them in the crime.
  • That eyewitnesses have identified them as committing the crime.
  • That they have other evidence that they do not really have, such as fingerprints.

I’ve seen police who don’t want to lie outright, will only suggest that he has such evidence. Knowing he has no fingerprints or surveillance video, he will ask the suspect to explain how his prints or picture might turn up. Then there is the old story of the interrogator who hooks the suspect up to a copy machine. Then every time the detective pushes the button the machine prints out a “report” that says: “He’s lying.”

But they can’t lie about everything:

One thing police cannot do is mislead a suspect regarding the consequences of confessing. If an officer tells a suspect that his statement cannot be used against him or will not result in charges, one can easily see that contradicts the Miranda warning that the officer gave earlier.


Lying about getting consent to search:

Sometimes the police want to get into a suspect’s home. They want to look around, but do not have enough evidence to get a search warrant. Lying to the homeowner is one of his tools. An undercover police officer can come to the suspected drug dealer’s house, posing as a buyer. If he is allowed inside on that basis, he may seize evidence or find enough other evidence to get a search warrant. The undercover cop might get in by knocking and asking to use a phone. These deceptions have been allowed by courts to get consent to enter.

One thing the police cannot do is go beyond the actual consent to enter. The undercover cop–invited inside to buy drugs or use the phone–cannot then start nosing around in closets and drawers. They may not get into a building by claiming authority that they do not have. That would immediately destroy the voluntariness of the consent.

There is also no voluntary consent to enter when the homeowner allows a police officer to enter because the officer has falsely claimed to have a legal right to enter. The same would apply where a government agent claims a false emergency, perhaps by posing as a gas company employee.