The Grand Jury was originally designed to protect the public from overzealous and unwarranted prosecutions. Unfortunately, the Grand Jury has morphed from a public shield to a prosecution sword. While the Grand Jury by design is an ‘independent body,’ in reality the Grand Jury is a puppet of the prosecutor. An old saying from the criminal defense bar is “The prosecutor could convince the Grand Jury to indict a ham sandwich.” The Grand Jury only hears the prosecutor’s side of the case. The Rules of Evidence are so watered down for Grand Jury hearings that they are virtually inapplicable. Prosecutors have wide latitude in presenting its case to the Grand Jury. Grand Jury Hearings are not open to the public and criminal defense attorneys are not allowed to appear. Prosecutors often use summaries of testimony and hearsay evidence to obtain a true bill indictment against the accused. Prosecutors are also allowed to withhold favorable evidence from the accused. While ABA standards prohibit a prosecutor from using evidence at the Grand Jury Hearing which would be inadmissible in a trial court, case law is much more lenient.
Limitations on a prosecutor’s decision to indictment includes:
– vindictive prosecution is the filing of criminal charges or a civil lawsuit intended to harass a person.
– retaliatory prosecution occurs when the government brings a criminal action without probable cause.
– discriminatory prosecution occurs when the prosecutor files a criminal complaint that is motivated by a discriminatory purpose.
– selective prosecution– the prosecutor has brought the charges not because the defendant engaged in criminal behavior but because of a forbidden reason. This defense is based on the 14th Amendment. The defense argues that the prosecution has an improper motive or reason unrelated to guilt for bringing the charges. If he prosecutor is charging a person with a crime because of the person’s political views, religion, sexual orientation, race or sex the case can be dismissed on constitutional grounds.
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