Is it proper for a grand jury prosecutor to intend exculpation?

(IANAL, so am unable to debate this question. I almost posted in GQ but thought GD more appropriate.)

I’ve thought that the purpose of grand juries was to test the strength of evidence against a suspect. In the 1992 case of United States v. Williams, a Supreme Court Justice seems to agree with this:

But recently we’ve seen grand jury proceedings where the prosecutors’ obvious intent was to clear a suspect; indeed where damning evidence was deliberately supressed. This happened again, just now, when the incompetent cop who murdered Tamir Rice was cleared. The public called for prosecution; sham proceedings were held in which the prosecutor tried to ensure the cop would be cleared; and the public is supposed to feel satisfied. :smack:

I find this outrageous. (Maybe the thread belongs in BBQ Pit.)

You do not understand the role of a grand jury, grand juries do not “clear” anyone, they only look at the states evidence and decide if there is reasonable grounds for pressing a charge. They are intended to prevent people being subject to court action because the “public called for prosecution” or to further the political will of some government official.

You need to realize that our court system tends to error towards letting some guilty people free vs. convicting innocents. Mix this with the reality that both case law and legislation has made self-defense claims very difficult to over turn and you will get these types of decisions. You may want to search for and learn about the “reasonable person” construct. The facts of the case do not matter as far as meeting that standard in almost all states for both officers and citizens (on their property). In these cases typically the only practical way a prosecutor or grand jury could move forward with an indictment is either through concrete evidence of malice or by ignoring the law and going forward with a witch-hunt.

The outcome is not outrageous, the general failure of our education system to even explain our legal system to the population, and the political barriers in fixing the legal system that results in these decisions should be what people find outrageous.

Outrage based on a misunderstanding or ignorance of our legal system does no one any good.

In a attempt to clarify more.

The target (in this case the officer) in a grand jury investigation is not at trial nor is their guilt or innocence being decided. What is being considered is if the states evidence or probable cause in a formal accusation is sufficient to charge the target with a crime. After that, the accused will go to trial.

The common belief that a target is “cleared” of a crime or that an indictment is an indication of guilt is purely due to widespread ignorance on the core functions of our legal system. Oddly enough many attorneys do not even understand these basic concepts even if they work in criminal law. I myself was completely ignorant until I had to serve on one.

But what if it is not in the state’s best interest to present a thorough case to a Grand Jury, such as when they are presenting a case against one of their own?

What damning evidence do you think was deliberately suppressed in the Tamir Rice case?


I’m curious about that, too. AFAIK, the basic facts of the incident have never been in dispute. The officers were responding to a call that a child was running around waving a gun at people. As the officers arrived, the boy reached for the gun, and the officer shot him. The officer had no way of knowing it was just a toy, and unfortunately we live in an age where a 12-year-old shooting people is not unthinkable.

Of course the lawyer is going to say the prosecutor threw the case. Because Tamir’s family will stop paying him once this is all over.

Let’s stick to the general debate topic. Is it proper for a prosecutor to present a case to grand jury without trying to indict? This sounds like a white-washing that won’t wash.

IANAL, but if the case is presented in a fashion intended to “clear,” it seems to defeat the very purpose. Doubly so when the grand jury presentation was in response to political pressure. I’m hoping to hear comments by actual lawyers.

  • “clear” – I am so very very sorry I use this wrong wrong term, but it seems the clearest in context.

Okay, your statement that there was damning evidence withheld was false. Do you have proof that the prosecutor deliberately threw the Rice case? Because I don’t believe that either.


You’re going to need a cite for these parts. “obvious intent” and “damning evidence was deliberately supressed(sic)”

I don’t know why such a whitewashing wouldn’t “wash”-Some of the public demands a response, but the prosecution wants to stay on the good side of both the police they have to work with and the “Law And Order” voters that keep them in office, so they convene a Grand Jury…and present a weak case. Is that really that hard to believe?

The OP has told us that we NOT to pay attention to the man behind the curtain. :wink:

AFAIK, a DA is not supposed to bring a case before a GJ that he/she thinks has little chance of producing an indictment. That is not to say that every DA is going to reach the same decision in every case, so starting out of the gate you’ve got a certain amount of subjectivity inherent in the system.

As to whether or not a DA has purposely thrown his case, that is not a matter of black and white (no pun intended) as the OP seems to think. The best way to explore that is to debate the specific cases that he is basing his premise on. If we are not to debate that, then why not just pose your question in GQ, and get factual answers from our resident lawyers?

I’m skeptical of the OP’s claims regarding Tamir Rice’s killer(s) grand jury too, but to answer your question: I don’t know if I’d call it proper, but it is a convenient out for a politician (the DA) when (s)he is put between a rock (as I understand it, the prosecutor is supposed to oppose the defense in our adversarial system, but also has an extra burden to see that justice is done) and a hard place (the modern-day equivalent of a howling mob, a.k.a. #BlackLivesMatter). They can see justice done (a dismissal of charges) and wash their hands of the whole matter before the crowd (see, #BLM, it’s not my fault, the grand jury didn’t indict). Bottom line: District attorneys are political creatures acting in a political way to avoid angering their constituents. It’s not surprising.

IANAL and mine is more a question than desire to participate in debate. However the responses do suggest that the thread doesn’t belong in GQ.

At this news page I read

Please contrast this with the quotation by Antonin Scalia in OP. Is Scalia wrong?

When I don’t respond to a post it doesn’t mean I agree with it. If you have a problem with that, take it to the Pit.

You didn’t respond to me when I pointed out your utter ignorance of the meaning of “investment” in economics. Does that mean you learned something? :rolleyes: )

I am neither a criminal lawyer nor one licensed in Ohio (paging Elendil’s Heir), but I would be very surprised if either of those things occurred in other Ohio grand jury proceedings. That said, I would also be very surprised if the function of the experts who testified was to exonerate the officers, but I don’t know who they were or what they said.

Scalia is not wrong. But he was writing in the context of a case where a defendant attempted to introduce exculpatory evidence, not one where the prosecutor already had. As a general rule, the prosecutor has complete control over what a grand jury sees and hears and if he wants to weaken his case that’s up to him.

Each State has slightly different grand jury processes, and some do not use grand juries.

In Ohio, your fundamental misunderstanding is you’re confusing a grand jury proceedings with a trial, and you’re viewing it as adversarial. It isn’t.

Let’s start with the “theory” of grand juries in Ohio and then we can get into the “practical reality” of them.

The Ohio State Bar Association, in describing grand juries uses this important phrase:

I’ve bolded part of that to explain a function of grand juries that many people are unfamiliar with. On Law & Order or similar shows, an adversarial prosecutor brings cases before a court and argues vehemently to win his case, to get the suspect indicted and then convicted.

That certainly happens in real grand juries in Ohio, too–the prosecutor normally wants an indictment. But grand juries in Ohio actually have a broader role, to “conduct investigations of possible criminal behavior.” This means they can behave in ways very different from regular juries. For example a grand jury, in listening to the testimony of one person, may determine it wants information from another person. The grand jury, without any involvement from a prosecutor or judge (judges aren’t even present in the grand jury room), can subpoena people. In theory a grand jury could decide, based on evidence it has heard, to issue indictments of people the prosecution never intended to indict.

Another thing to keep in mind, is how grand juries operate, from the Ohio Prosecuting Attorneys Association:

On a typical crime show, you’re familiar with a jury being summoned and convened to deal with a specific case. In Ohio, grand juries sit for a “general term”, and they will often hear details of many possible, unrelated crimes, during that term. While it is not their role to replace the police, they are allowed great latitude in their investigations, including latitude beyond what the prosecutor wants.

What I’m trying to explain is the grand jury is akin to a “temporary elected office, held by a council of citizens”, and it is theoretically very independent of the prosecutor. The grand jury is not a legal tool that exists solely so the prosecutor can obtain indictments.

Broadly speaking in fact, you can view grand jury as a “check on prosecutorial power”, as they prevent prosecutors from willy-nilly charging people and prosecuting them maliciously but also in theory can indict people that maybe the prosecutor doesn’t want indicted.

So to try and bring that theory around to practicality–in the normal course of events a prosecutor will bring a pretty tight case to a grand jury. He’s there to quickly get an indictment, most of the time. He’s very familiar with the process, the grand jurors generally are not, and they generally defer to him. It’s rare for a grand jury to not indict when a prosecutor is operating in his “normal mode of business.” Think about it–there are almost no rules on admissibility of evidence, including hearsay, evidence obtained by “unreliable means” and etc are fair game in a grand jury. None of that can be used in trial, but it can be used to get an indictment. Aside from when/if they are called to testify, the potential defendant has no right to appear, and no right to defend themselves. It’s a one sided system in which only the most egregious cases of a prosecutor trying to get an indictment against someone against whom there is essentially no evidence will ever see a no-bill.

However, remember the theory part I mentioned about how grand juries also can “broadly investigate any crimes in the county”? That can sometimes be a valuable political tool for a prosecutor. The elected prosecutor is a politician, and while he doesn’t normally personally try cases, he and all of his trial lawyers care a great deal about conviction percentages and winning cases. In fact, the normal order of business is if a prosecutor doesn’t believe they can win a case, they use what is called prosecutorial discretion to decline to prosecute. Broadly speaking, this discretion is unlimited and not subject to review, except, remember, most States have elected prosecutors. When a case comes up where the public wants the prosecutor to “do something” but the prosecutor doesn’t believe he can win, he’s in between a “rock and a hard place.”

He could use his prosecutorial discretion, as he does all the time for loser cases that no one cares about. But if he does it in a case that is under public scrutiny, that creates political backlash for him. Prosecutorial discretion is normally used in cases where there is “some evidence” supporting a charge (meaning the prosecutor could probably get an indictment) but where the prosecutor, in his professional experience, believes he would lose at trial.

For example the George Zimmerman case, the original prosecutor likely would never have prosecuted him because he recognized Zimmerman couldn’t be convicted at trial. The special prosecutor assigned to the case by the Governor was essentially a bulldog showboater who wanted to take it to trial, so she did–and she lost, and cost the taxpayers a few million dollars in losing.

So what’s a prosecutor to do when using prosecutorial discretion “won’t work” for political reasons? Well, there’s the grand jury. The theoretical purpose of a grand jury includes “broadly investigating possible crimes” even ones the prosecutor isn’t pushing the grand jury to look at. As an “independent investigatory body”, the grand jury can take the decision to prosecute or not out of the prosecutors hand. Unlike a “normal day at the office” before the grand jury, instead of narrowly presenting only damning evidence (the prosecutor is required to disclose exculpatory evidence to the defense attorneys at trial, but is not required to present it to a grand jury), the prosecutor presents a broad set of evidence. Stuff that looks bad for the defendant, but also stuff that looks good (like the multiple expert reports saying that Office Loehmann’s actions were not criminal.) If the grand jury doesn’t indict, the prosecutor can say “it wasn’t my decision, it was the grand jury’s decision.” If they do indict, and he loses the case, he can always say “well, it wasn’t a strong case that I’d have gone to trial with, but I was bound by the grand jury’s decision.”

Is this proper? From a legal standing, it is entirely within the bounds of how a prosecutor can interact with a grand jury. There are no rules, legal or professional, that require a prosecutor to only present damning, one-sided evidence before a grand jury. The prosecutor can choose to utilize the grand jury as an “independent entity” to investigate the case from a position of neutrality, which will dramatically reduce the percentage chance of an indictment being passed down.

Is it proper “more broadly”, in terms of “what society expects of its prosecutors?” In a society that elects prosecutors, that is ultimately a political question, there is no right or wrong. If the voters have a serious problem with it, he will cease being prosecutor at the next election.

The quote is actually a one-sided argument. To play devil’s advocate for the prosecutor, for one, these were not “so-called expert witnesses.” If you read about the backgrounds of the experts behind the reports, they certainly qualify as genuine experts in police officer use of force.

As for it being “unheard of” to offer evidence exonerating a target, that’s arguably (again, playing devil’s advocate for the prosecutor) not what happened here. The prosecutor commissioned independent reports, and then reported on their findings. The theory being if those reports said the use of force was legally improper, he would’ve reported that as well.

Those reports would’ve been required to be turned over to a defense attorney at trial, but yes–it is unusual that a prosecutor would share them with a grand jury. But not “unheard of”, this is neither the first time, nor the last time, that an elected prosecutor “turns a case over” to a grand jury, when said prosecutor is trying to distance himself from the case and the decision to go to trial or not. When that happens it’s pretty common for the prosecutor to present a broad-base of evidence.

The prosecutor in New York did this with the case with Tony Stewart hitting and killing another race car driver, for example. So it’s not only done in police killing black people cases. It’s an old practice, that generally happens when prosecutors a) don’t believe they can win the case, and b) don’t want the responsibility of declining to prosecute under their own discretion. It was a largely poorly known and poorly understood mechanism historically, but where recently many cases involving police use of force have seen prosecutors going down this path it’s now much more int he public eye.

To editorialize, a country like say, Canada, in which prosecutors are appointed all the way up, they have much less incentive to fear either declining to prosecute (and waste resources) on “unwinnable” cases, or to fear losing a tough case. FWIW I’m generally strongly opposed to the election of either judges or prosecutors.

As for Antonin Scalia, he’s not wrong. He’s describing the normal grand jury process, so he’s right like 99% of the time. His comments just aren’t really digging into the rare exception to the rule. I very seriously doubt Justice Scalia would disagree with the law of the State of Ohio that grand juries are independent entities that are allowed to make their own decisions, or that he’d assert there is a legal requirement in Ohio that prosecutors only present damning evidence. He was speaking in a decision more generally about the normal process (and I don’t even know if that quote is from a case in Ohio, remember–grand jury law is not the same in every state.)

Let’s have a cite for evidence being suppressed.

And yeah, OP hasn’t helped by editorializing about the Tamir Rice case. There is no evidence of evidence suppression, there is also no unbiased source of information about what was presented before the grand jury. Remember, this stuff is secret. Some of it (like the expert reports) were released to the public, but we don’t know everything that was presented.

Further, you can’t “suppress” evidence before a grand jury. There’s no rules about what evidence “must be presented” so the concept of “suppression” doesn’t apply.


But you are misunderstanding his statement.

If the prosecutor had refused to supply the grand jury with exculpatory information, that would not violate any federal constitutional right of the accused.

Scalia’s statement does not say that the prosecutor cannot present exculpatory evidence. Scalia’s statement does not say that the prosecutor should not present exculpatory evidence. Scalia’s statement does not address state grand juries except insofar as their use implicates federal constitutional protections.

Different states have different laws concerning the use of grand juries. For example, in New York, a witness cannot be compelled to testify before a grand jury unless first being granted transactional immunity for any topic discussed by the witness during the testimony. The Fifth Amendment prevents the prosecution from compelling the target of the grand jury to testify, but he has an absolute right to do so, providing he first waives the immunity.

So Scalia’s statement would not be true if applied to a New York state grand jury: there, the target does have some right to present exculpatory testimony, in the form of his own testimony.

In general, though, his statement is correct. You just need to understand it. The accused has no federal constitutional right to give his side of the story to the grand jury. But doing so violates no general rule that I’m aware of.