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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

Does an indictment give a prosecutor an advantage? (#1)

Does a prosecutor gain anything by using a Grand Jury indictment to charge an offense versus an information when He/She has a choice?

 

Response: A prosecutor can gain a tactical advantage (one, at least) from usinga grand jury to indict rather than charging by information. The O.J. Simpson case illustrates this: In that case, the prosecutors first sought to have a grand jury indict Mr. Simpson, since by doing this they could present enough evidence toconvince the grand jury there was probable cause to believe he had committed the crimes at issue, but the evidence would be shielded by grand jury secrecy, which meant the defense attorneys would not know much about the prosecutors' case.

The defense attorneys had the sitting grand jury disqualified for exposure to  publicity (a very unusual ruling), and so the prosecutors, out of time pressure, had to charge by information. Since they charged by information, the defendant was entitled to a preliminary hearing, at which the defendant could hear the testimony of the witnesses and cross-examine them. This gave the defense a lot more information about the prosecutors' theory of the case and the evidence they'd use to prove it.

So, if nothing else, using a grand jury indictment lets a prosecutor avoid a preliminary hearing and the attendant disclosure of prosecution evidence.

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