# Is it proper for a grand jury prosecutor to intend exculpation? **URL:** \ **Category:** Great Debates\ **Created:** [December 29, 2015, 10:41am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630 "2015-12-29T10:41:20Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2015, 4:29pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/21 "2015-12-29T16:29:23Z")
> [@Martin\_Hyde](#): > > 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**. Almost ten years ago, **GFactor** and I collaborated on [this SDSAB column](http://www.straightdope.com/columns/read/2256/who-invented-the-grand-jury) discussing grand juries. A relevant excerpt: > [@](#): > > But they don’t always do as the prosecutor wishes, as Jeannene Pacific, the district attorney in Jones County, Mississippi, discovered. Ms. Pacific became the target of her own grand jury when it sought to investigate over $35,000 paid by the county’s Worthless Check Unit to Pacific and her staff as “salary supplements.” Alarmed, Pacific asked the local court to forbid the grand jury’s actions. Although the local court did so, the Mississippi Supreme Court ruled that the grand jury had the power to investigate: > > > [@](#): > > > > The grand jury must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench on the legitimate rights of any witness called before it. The court generally cannot limit the grand jury, its legitimate investigation, interfere with its investigatory function, control the nature of its investigation, prohibit consideration of offenses within any particular class of crimes, stay its proceedings, dismiss a matter, or do various other things. > > Ms. Pacific and her assistant eventually repaid over $30,000. The whole column is worth a read, in my completely unbiased opinion. 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2015, 4:50pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/22 "2015-12-29T16:50:59Z")
> [@Martin\_Hyde](#): > > 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.) The case was _United States v. Williams_, 504 US 36 (1992). John Williams was charged with knowingly making a false statement or report for the purpose of influencing the action of a federally insured financial institution. He had listed, on a balance sheet provided to his bank, “current assets” of roughly $6 million in notes receivable from three different venture capital companies. The government contended this was deceptive, since the companies could not actually pay those notes and Williams knew it. He also listed as income the interest paid on those notes without making clear that the interest was being paid out of his own loans to the companies – in other words, he loaned them money and they were paying back the interest from the loan proceeds. After he was indicted, he asked the court to unseal the relevant portions of the grand jury transcripts and discovered that the government had never mentioned to the grand jury that his general ledgers and tax returns, which were also provided to the banks, and his testimony in his bankruptcy case, were all fully transparent with respect to the notes and the source of the income. This, he said, was strong evidence that there was no intent on his part to deceive anyone. He said, in effect, that the grand jury never would have indicted him if they had been told about his general ledgers and tax returns. The question decided by the Supreme Court, then, was: does the federal grand jury prosecutor have an obligation to present exculpatory evidence? (Note: this is not, “May he?” This is “Must he?”) > [@](#): > > Respondent acknowledges (as he must) that the “common law” of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper. Cf. Thompson, supra, at 607. Thus, had the Government offered to familiarize the grand jury in this case with the five boxes of financial statements and deposition testimony alleged to contain exculpatory information, and had the grand jury rejected the offer as pointless, respondent would presumably agree that the resulting indictment would have been valid. Respondent insists, however, that courts must require the modern prosecutor to alert the grand jury to the nature and extent of the available exculpatory evidence, because otherwise the grand jury “merely functions as an arm of the prosecution.” Brief for Respondent 27. We reject the attempt to convert a nonexistent duty of the grand jury itself into an obligation of the prosecutor. The authority of the prosecutor to seek an indictment has long been understood to be “coterminous with the authority of the grand jury to entertain [the prosecutor’s] charges.” United States v. Thompson, 251 U. S., at 414. If the grand jury has no obligation to consider all “substantial exculpatory” evidence, we do not understand how the prosecutor can be said to have a binding obligation to present it. The federal prosecutor does not have a binding obligation to present exculpatory testimony to a federal grand jury. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 29, 2015, 4:51pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/23 "2015-12-29T16:51:12Z")
> [@septimus](#): > > 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: ) That’s nice. What is the damning evidence that was withheld in the Rice case? Regards, Shodan ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 29, 2015, 5:05pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/24 "2015-12-29T17:05:39Z")
> [@Bricker](#): > > Almost ten years ago, **GFactor** and I collaborated on [this SDSAB column](http://www.straightdope.com/columns/read/2256/who-invented-the-grand-jury) discussing grand juries. A relevant excerpt: > > The whole column is worth a read, in my completely unbiased opinion. 😃 But I don’t think you’ve touched on the main issue of the OP. Aside from whether or not the case being cited supports or refutes the OP’s question, is it proper\* for a DA to skew the evidence presented for the explicit purpose of NOT obtaining an indictment? Let’s leave alone, for the moment, whether it’s possible to determine the DA’s intent. \*proper here could be mean either legal or ethical, so let’s consider both. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2015, 5:51pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/25 "2015-12-29T17:51:59Z")
> [@John\_Mace](#): > > But I don’t think you’ve touched on the main issue of the OP. Aside from whether or not the case being cited supports or refutes the OP’s question, is it proper\* for a DA to skew the evidence presented for the explicit purpose of NOT obtaining an indictment? Let’s leave alone, for the moment, whether it’s possible to determine the DA’s intent. > > \*proper here could be mean either legal or ethical, so let’s consider both. Well, the prosecutor has near-absolute prosecutorial discretion – he cannot be compelled to initiate a prosecution in any circumstance I can think of, and the only issue I can come up with is perhaps the vague notion that he’s shortchanging his client, the people of his jurisdiction, by failing to zealously advance their interests. But by virtue of his office, the people have vested in him the discretion to weigh their interests, so I’m not aware of any canons of ethics issue with him deciding to soft-pedal evidence to the grand jury. Obviously this is limited to a situation in which he decides in good faith that the interests of justice are best served in this way – a prosecutor that exercises his discretion to nolle pros in return for an envelope of hundreds is certainly acting illegally. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 29, 2015, 5:59pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/26 "2015-12-29T17:59:41Z")
> [@Bricker](#): > > Obviously this is limited to a situation in which he decides in good faith that the interests of justice are best served in this way – a prosecutor that exercises his discretion to nolle pros in return for an envelope of hundreds is certainly acting illegally. But no one here is suggesting that scenario, as far as I can see. What about a prosecutor that soft-pedals a case to mollify the police he has to work with and the “Tough On Crime” voters he panders to? edited to add: He may think he is giving “the people” what they want-“the people” being those he works with and those that are likely to vote for him. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 29, 2015, 6:13pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/27 "2015-12-29T18:13:17Z")
Well, Ohio’s prosecuting attorneys (their equivalent of DAs) are elected, so if he’s not giving the people what they want they can kick him out of office. If the evidence in the Rice case justifies a prosecution then it’s not impossible that the Department of Justice will attempt its own prosecution, though it couldn’t be for murder. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2015, 6:55pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/28 "2015-12-29T18:55:57Z")
> [@Czarcasm](#): > > But no one here is suggesting that scenario, as far as I can see. What about a prosecutor that soft-pedals a case to mollify the police he has to work with and the “Tough On Crime” voters he panders to? > edited to add: He may think he is giving “the people” what they want-“the people” being those he works with and those that are likely to vote for him. I think it’s a political question: the prosecutor can be removed from office by the people. In many states, including Ohio, the prosecutor is an elected office. (Also true for my home state, where we elect a Commonwealth Attorney for each county). A prosecutor who is unresponsive to the will of the electorate presumably will suffer that fate. ETA: er… as RNATB said. ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [December 29, 2015, 6:56pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/29 "2015-12-29T18:56:50Z")
Jeopardy doesn’t apply, does it? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 29, 2015, 7:03pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/30 "2015-12-29T19:03:20Z")
> [@Bricker](#): > > I think it’s a political question: the prosecutor can be removed from office by the people. > > In many states, including Ohio, the prosecutor is an elected office. (Also true for my home state, where we elect a Commonwealth Attorney for each county). A prosecutor who is unresponsive to the will of the electorate presumably will suffer that fate. > > ETA: er… as RNATB said. Yes, you are basically repeating back what I just said to you, without saying anything about the ethics/morals of the situation. We _realize_ that if the people that want cases like this to be soft-pedaled in the name of “LAWN ORDER” are of sufficient number to get the prosecutor reelected, along with the police he has to work with on a daily basis, then he probably has a _legal_ right to present the case in a way that satisfies their(and in the end, his) needs…_but is it ethically right?_ ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [December 29, 2015, 7:09pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/31 "2015-12-29T19:09:50Z")
> [@Bricker](#): > > Well, the prosecutor has near-absolute prosecutorial discretion – he cannot be compelled to initiate a prosecution in any circumstance I can think of, and the only issue I can come up with is perhaps the vague notion that he’s shortchanging his client, the people of his jurisdiction, by failing to zealously advance their interests. But by virtue of his office, the people have vested in him the discretion to weigh their interests, so I’m not aware of any canons of ethics issue with him deciding to soft-pedal evidence to the grand jury. > > Obviously this is limited to a situation in which he decides in good faith that the interests of justice are best served in this way – a prosecutor that exercises his discretion to nolle pros in return for an envelope of hundreds is certainly acting illegally. Thank you. My ignorance has been fought. I should have asked in GQ but wasn’t even sure how to phrase the question. A question still remains, however: When a case is presented to the grand jury to comply with a public interest in prosecution, it would seem appropriate that the case be presented in its best light. I can see that the prosecutor has and should have discretion, but if his intention is to present an exonerative case, why present the case at all? The grand jury can call its own witnesses etc. Can it call for a new prosecutor? How often, in practice, does a grand jury deviate widely from the prosecutor’s intent? ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [December 29, 2015, 7:12pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/32 "2015-12-29T19:12:17Z")
> [@Shodan](#): > > That’s nice. > > Regards, > Shodan You post in the other thread and tell us what you now know about investment. Then I’ll answer your question here. Deserve respect before expecting it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 29, 2015, 7:13pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/33 "2015-12-29T19:13:23Z")
> [@MandaJo](#): > > Jeopardy doesn’t apply, does it? Nope. Jeopardy does not attach until a petit jury has been empanelled (essentially, once an actual criminal trial begins). > [@Czarcasm](#): > > Yes, you are basically repeating back what I just said to you, without saying anything about the ethics/morals of the situation. We _realize_ that if the people that want cases like this to be soft-pedaled in the name of “LAWN ORDER” are of sufficient number to get the prosecutor reelected, along with the police he has to work with on a daily basis, then he probably has a _legal_ right to present the case in a way that satisfies their(and in the end, his) needs…_but is it ethically right?_ The answer is we don’t know. There are hundreds of pieces discussing a prosecutor’s duty to seek justice rather than convictions (that is, to help the defense in some circumstances). There are none that I know of discussing a prosecutor’s duty to attempt to obtain an indictment in every grand jury proceeding. As I noted above, if this case was handled differently from other grand juries in homicide cases in the district, I would find it troubling. But I’m not sure that would have been unethical. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 29, 2015, 7:20pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/34 "2015-12-29T19:20:57Z")
> [@septimus](#): > > 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. Indeed it is proper. As long as all the evidence is presented, it’s OK. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [December 29, 2015, 7:26pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/35 "2015-12-29T19:26:18Z")
> [@Czarcasm](#): > > Yes, you are basically repeating back what I just said to you, without saying anything about the ethics/morals of the situation. We _realize_ that if the people that want cases like this to be soft-pedaled in the name of “LAWN ORDER” are of sufficient number to get the prosecutor reelected, along with the police he has to work with on a daily basis, then he probably has a _legal_ right to present the case in a way that satisfies their(and in the end, his) needs…_but is it ethically right?_ There is no standard to judge ethics in this manner. Do you have an opinion to offer or a framework to evaluate the ethical implications or are you JAQing? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [December 29, 2015, 7:30pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/36 "2015-12-29T19:30:56Z")
Yeah, keep in mind we’re largely talking about cases a prosecutor doesn’t think he can win, but is taking to a grand jury for political reasons. The only arguable “ethical” approach would be to use his genuine prosecutorial discretion and not prosecute the case at all, but that would leave people howling with outrage. Keep in mind prosecutors in Baltimore recently lost a case in which they did everything basically the opposite of what the Cuyahoga County Prosecuting Attorney did, they were aggressive with the process from the very beginning–and lost. The Supreme Court requires the situation be evaluated not from 20/20 hindsight, but from the perspective of a law enforcement officer engaged in a heat of the moment incident. Juries tend to be sympathetic to law enforcement. These are extremely difficult, rare cases to win. To be frank under our current legal framework fixing the problem of lots of police shootings isn’t really something for the courts. The courts are only ever going to convict the most egregious and obvious incidents of police outright murder. It’s for policymakers like State and local governments who regulate the practices and use of force matrices for law enforcement, training etc. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 29, 2015, 7:41pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/37 "2015-12-29T19:41:28Z")
> [@Bone](#): > > There is no standard to judge ethics in this manner. Do you have an opinion to offer or a framework to evaluate the ethical implications or are you JAQing? I wasn’t “Just Asking Questions”-I was looking for an answer to the question actually asked, instead of a reworking of what was already stated. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [December 29, 2015, 8:01pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/38 "2015-12-29T20:01:58Z")
> [@Czarcasm](#): > > I wasn’t “Just Asking Questions”-I was looking for an answer to the question actually asked, instead of a reworking of what was already stated. Okay - how would you propose to determine if something is ethically right? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 29, 2015, 8:08pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/39 "2015-12-29T20:08:35Z")
> [@septimus](#): > > You post in the other thread and tell us what you now know about investment. Then I’ll answer your question here. Deserve respect before expecting it. No, I’ll post in this one. Got any proof of what you allege? Regards, Shodan ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 29, 2015, 8:19pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/40 "2015-12-29T20:19:27Z")
> [@Bone](#): > > Okay - how would you propose to determine if something is ethically right? Referring backing to the [initial news story](http://abcnews.go.com/US/tamir-rice-case-prosecutor-abused-manipulated-grand-jury/story?id=35979452) linked to in this thread, I would like to know if the prosecution goes to these lengths to find evidence exonerating the people the police bring in, or is it just the police(and other government officials) that get this kind of treatment? [Previous page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=1) [Next page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=3)