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 ?
(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).