Most people believe that all prosecutors are noble and fair. The public believes all prosecutors are lawyers of integrity. Criminal defense attorney knows that many prosecutors are not fair. Criminal defense attorneys know many prosecutors will do virtually anything to obtain a conviction. While many prosecutor are ethical, fair and trustworthy the truth is some prosecutors cannot be trusted.
Common prosecution abuses:
1. Prosecutorial discretion to indict or arrest: Prosecutors have virtually unlimited discretion in the decision to indict a person.
Grand Jury proceedings are not open to the public. The accused is not allowed to be present. The accused’s attorney is not allowed to participate. Concerns regarding a witness reluctance to testify voluntarily in pre-indictment proceeds form the basis for grand jury secrecy. There is also a risk that those about to be indicted would flee or would try to influence an individual grand juror to vote against the indictment to produce a non true bill. Also, by preserving the secrecy of the Grand Jury proceeding, people who are accused and not indicted do not suffer public disgrace.
The Prosecutor’s Job Before The Grand Jury
The Commonwealth Attorney must be scrupulously fair to all witnesses and must do nothing to inflame or improperly influence the grand jurors. The Commonwealth Attorney’s job is to advise the Grand Jury on the law and to present evidence for its deliberation. It is very difficult for a defense attorney to convince a trial court to dismiss an indictment due to prosecutorial misconduct at the Grand Jury phase. The defense lawyer must prove the prosecutor actively misled the Grand Jury or engaged in fundamentally unfair tactics in his presentation.
The burden of proof is high to convince a trial court that prosecutorial misconduct occurred and this abuse justifies a dismissal of the indictment. You must show the prosecutor knowingly used perjured testimony, made statements calculated to inflame the passions of the grand jurors, failed to inform the jury of the existence of exculpatory evidence or made excessive and improper use of hearsay testimony. If you can, you have a basis to file a Motion To Dismiss. Courts dismiss an indictment only in the most extreme case. Although the standard of proof is very high if you have a basis to pursue a prosecutorial misconduct dismissal it is worth pursuing. Even if the court is reluctant to grant relief the prosecutor’s ego and desire to avoid a scandal may trigger a favorable plea bargain.