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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? (#2)

I want to make sure I understand the advantage discussed in your last E-mail. Is it possible to offer evidence to a Grand Jury that is believed easily refutable by a competent defense, in order to obtain the indictment, with no intention of using that evidence at a subsequent trial ? And also, does the secrecy allowed a Grand Jury (as it pertains to evidence that WILL be part of a prosecutor's case) only give She/He an advantage until the cross-exam at trial ?

 

Response:  

(1) Prosecutors (at least in the federal system and in many states--states vary sowidely I can't generalize across all of them) can present evidence that would not be admissible at trial to obtain an indictment. In U.S. v. Calandra, the U.S. Supreme Court said, for example, that grand juries can hear evidence which was obtained in violation of the Fourth Amendment's search and seizure prohibition (and which could not be used at trial). Grand juries (in the federal system and in many states, at least) can hear evidence which would not be admissible under the rules of evidence governing trials. So, a prosecutor can use evidence which would not be admissible at trial to get an indictment . . . but if the prosecutor doesn't have any other evidence, there isn't much incentive to do so (or at least that's the theory here) because he/she would not be able to obtain a conviction at trial.

(2) As to the secrecy issue, if the prosecutor doesn't have any other evidence and the evidence used before the grand jury can't be admitted at trial, the grand jury record is irrelevant. If the evidence used before the grand jury (such as testimony) is relevant to evidence presented at trial (e.g., a witness who testified before the grand jury testifies at trial), then that evidence can (under the proper circumstances, as in using it to impeach a witness who testified before the grand jury) be used at trial, notwithstanding the strictures of grand jury secrecy. Grand jury secrecy lets a court order the use of grand jury information at trial, under the proper conditions (as in impeaching a witness).

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