Friday, October 4, 2013
Dianne Trotter asked a good question about the grand jury and many of you followed up with additional questions and comments
So grand jury meets and decides there is not enough evidence for a capital murder indictment, can prosecutor then go for 2nd degree murder or manslaughter?
Quick answer: Yes.
Reason: The Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions of a defendant who has been acquitted on a particular charge.
Explanation: A grand jury decides whether there is probable cause (i.e., reasonable grounds) to believe that a particular person committed a particular crime.
If the answer is “yes,” the grand jury “hands down” (i.e., issues) an indictment (i.e., formal accusation) accusing the defendant of committing that crime.
If the answer is “no,” the grand jury “no bills” (i.e., refuses to issue) an indictment.
A refusal to indict a person is not a decision regarding the ultimate merit of the case against a defendant. A grand jury can only consider evidence presented by the prosecution. Since defendants and their lawyers have no right to be present, to cross examine, or to present a defense, a grand jury lacks a proper basis to decide the ultimate question of innocence or guilt. That decision can only be made by a jury after it considers all of the evidence presented by both sides during a trial.
Expressed another way, a decision to charge or not to charge someone is just a screening mechanism to decide whether a suspect should be held to answer. A defendant cannot reasonably claim that such a screening method constitutes a decision on the ultimate merit of the case.
Similarly, a grand jury decision not to charge someone cannot reasonably be construed to be an acquittal and no law prohibits the prosecution from returning to the grand jury at a later time to request an indictment. For example, ongoing investigations may lead to the discovery of new evidence that merits another look by the grand jury.
The purpose of the Double Jeopardy Clause is to prevent the prosecution from retrying a defendant after a jury has considered all of the evidence admitted and acquitted the defendant. The prosecution gets only one chance to prosecute and convict a defendant.
I noticed in the comments to my post yesterday that many of you asked questions regarding the secrecy of grand jury proceedings and the exclusion of the defense.
The grand jury, like the Magna Carta, is a product of the war for power in England during the Middle Ages between the land-owning aristocracy and the king. The struggle to create a grand jury was an effort to transfer the power to decide whom to accuse of committing a crime from the king to the land owners. That struggle was important because most crimes were punishable by death and forfeiture of land to the king. By inserting themselves into the process of deciding whom to prosecute, the land owners hoped to prevent the king from using the criminal law against them for unjust economic gain and political advantage.
In grand jury parlance today, the primary suspect in an investigation is called the “target” of the investigation. An investigation may have multiple targets depending on the nature of the crime(s) being investigated.
Other suspects with less involvement or less evidence of participation in the crime(s) under investigation are called “subjects” of the investigation.
Everyone else is called a witness.
Since the 5th Amendment prohibits compelling a person to testify against himself, targets and subjects of a grand jury investigation cannot be compelled to testify before the grand jury. They are warned to seek counsel before the scheduled date of their appearance at the grand jury.
The standard operating procedure for any lawyer retained or appointed by the court to represent a target or subject of a grand jury investigation is to contact the prosecuting attorney and tell her that the client will exercise the right to remain silent and refuse to answer any questions at the grand jury.
Targets are usually excused from appearing before the grand jury.
Assuming the subject of the investigation is not claiming factual innocence, the lawyer who represents him will generally initiate the let’s-make-a-deal game hoping to obtain an agreement that the client will not be charged in exchange for the client’s agreement to cooperate and testify against the target. The client will normally be indicted and excused from testifying before the grand jury, if no agreement is reached. If an agreement is reached, however, the client normally testifies before the grand jury.