# 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:** 3
**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, 8:26pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/41 "2015-12-29T20:26:15Z")
> [@septimus](#): > > 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? I imagine for the motive we’ve been discussing here: public perception. In effect, the prosecutor is saying to the electorate, “Look, I did not reach this decision alone. Seven members of the community looked at all the evidence that I had, both that which favored prosecution and that which favored dismissal. And your fellow citizens agreed that there was no good reason to prosecute.” > [@](#): > > 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? Very seldom. It’s quite rare. Keeping in mind that grand jury rules differ between states (for example, in Virginia the size of the grand jury does not exceed 7; in the federal system it’s 23 and I have no idea what the Ohio number might be) the usual grand jury docilely follows the prosecutor’s lead. A grand jury that does not is sometimes called a “runaway.” ---
**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, 8:30pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/42 "2015-12-29T20:30:47Z")
> [@septimus](#): > > 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? A Civil Grand jury can _remove_ a Public Official from Office. It’s very rare, however. ---
**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, 8:32pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/43 "2015-12-29T20:32:31Z")
> [@Czarcasm](#): > > …_but is it ethically right?_ In my view, generally, yes. Why? Because the standard the grand jury needs to reach to indict is only “probable cause.” This is a very low standard compared to the petit jury’s standard for conviction of “beyond a reasonable doubt.” In my view, a grand jury that sees the same kind of exculpatory evidence that the petit jury would certainly see at trial, and can’t even agree that probable cause exists, is not looking at a case that will lead to a conviction. In my view, it’s ethically wrong for a prosecutor to proceed to trial when he knows, or is reasonably certain, that he cannot obtain a conviction – basically, he’d be using the trial itself as a kind of punishment. A prosecutor concerned about the weakness of his case does not act wrongly by letting the grand jury see the same evidence that the petit jury would also see. ---
**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, 8:33pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/44 "2015-12-29T20:33:34Z")
> [@DrDeth](#): > > A Civil Grand jury can _remove_ a Public Official from Office. It’s very rare, however. In what state? ---
**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, 8:37pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/45 "2015-12-29T20:37:04Z")
> [@Czarcasm](#): > > 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? Really? That’s what you would like to know? Because in your previous post #30, you criticized Bricker’s response to you as unresponsive to your other question from post #26. That question was, “_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?_” So what about them? Bricker gave you an answer - they are free to act in many ways under the auspices of prosecutorial discretion. But that wasn’t good enough - you wanted to know if that was ethically right - you even asked about it. I know, it’s hard to keep track with the ratio of statements to questions you pose. Determining if something is ethically right is obviously a judgment call, so why you would phrase this type of statement in the form of a question while simultaneously implying you personally don’t believe it to be ethically right, leaving yourself the out of not making an actual statement, I leave as an exercise to the reader. But now you’ve shifted - now the question is, 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? Of course, you’ve not stated what “these lengths” are, nor have you established that police and government officials get this kind of treatment as a matter of course beyond whatever treatment these particular officers received. Is that question begging, I’m not sure. In any event, Martin Hyde provided an example in post #17 of similar actions in a non-police, non-government official instance so your pseudo question is answered/rebutted. ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/46 "2015-12-29T20:38:50Z")
> [@Bricker](#): > > In what state? California. [http://www.courts.ca.gov/civilgrandjury.htm](http://www.courts.ca.gov/civilgrandjury.htm) ---
**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, 8:40pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/47 "2015-12-29T20:40:14Z")
> [@Bricker](#): > > I imagine for the motive we’ve been discussing here: public perception. In effect, the prosecutor is saying to the electorate, “Look, I did not reach this decision alone. Seven members of the community looked at all the evidence that I had, both that which favored prosecution and that which favored dismissal. And your fellow citizens agreed that there was no good reason to prosecute.”. Is it possible for a prosecutor to present a weak case for prosecution and a strong case for dismissal, or does he just present all the evidence available in order without comment? ---
**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, 8:42pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/48 "2015-12-29T20:42:54Z")
> [@Czarcasm](#): > > Is it possible for a prosecutor to present a weak case for prosecution and a strong case for dismissal, or does he just present all the evidence available in order without comment? He can put a spin on the evidence, softpedal, etc. But he cannot conceal or lie. ---
**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, 8:45pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/49 "2015-12-29T20:45:37Z")
> [@Bone](#): > > Really? That’s what you would like to know? Because in your previous post #30, you criticized Bricker’s response to you as unresponsive to your other question from post #26. That question was, “_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?_” > > So what about them? Bricker gave you an answer - they are free to act in many ways under the auspices of prosecutorial discretion. But that wasn’t good enough - you wanted to know if that was ethically right - you even asked about it. I know, it’s hard to keep track with the ratio of statements to questions you pose. > > Determining if something is ethically right is obviously a judgment call, so why you would phrase this type of statement in the form of a question while simultaneously implying you personally don’t believe it to be ethically right, leaving yourself the out of not making an actual statement, I leave as an exercise to the reader. > > But now you’ve shifted - now the question is, 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? Of course, you’ve not stated what “these lengths” are, nor have you established that police and government officials get this kind of treatment as a matter of course beyond whatever treatment these particular officers received. Is that question begging, I’m not sure. In any event, Martin Hyde provided an example in post #17 of similar actions in a non-police, non-government official instance so your pseudo question is answered/rebutted. I’m sorry. How many questions am I allowed to ask per thread? ---
**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, 8:47pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/50 "2015-12-29T20:47:46Z")
> [@DrDeth](#): > > He can put a spin on the evidence, softpedal, etc. But he cannot conceal or lie. Thank you. ---
**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, 8:48pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/51 "2015-12-29T20:48:57Z")
> [@Czarcasm](#): > > Is it possible for a prosecutor to present a weak case for prosecution and a strong case for dismissal, or does he just present all the evidence available in order without comment? It’s as if you didn’t read the previous posts in the thread: > [@Martin\_Hyde](#): > > 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.) The prosecutor can present whatever evidence he damn well pleases. ---
**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, 8:51pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/52 "2015-12-29T20:51:48Z")
> [@Czarcasm](#): > > I’m sorry. How many questions am I allowed to ask per thread? 1. 1. As many as you think is ethically right, 'natch. ---
**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, 8:56pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/53 "2015-12-29T20:56:40Z")
> [@Bone](#): > > It’s as if you didn’t read the previous posts in the thread: Actually, it’s as if you didn’t read the specific post I was responding to, which certainly implied(but did not outright say) that both sides would be given equal representation, sort of like “We Report-You Decide”. ---
**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, 9:15pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/54 "2015-12-29T21:15:33Z")
> [@DrDeth](#): > > A Civil Grand jury can _remove_ a Public Official from Office. It’s very rare, however. > [@Bricker](#): > > In what state? > [@DrDeth](#): > > California. > > [Civil Grand Jury - jury\_service](http://www.courts.ca.gov/civilgrandjury.htm) Nothing in that link supports your claim. California [Penal Code Sec. 925-933.6](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=925-933.6) describes the powers of the grand jury in that state: > [@](#): > > 1. (a) Each grand jury shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government matters during the fiscal or calendar year. There’s a load of stuff they can investigate, and they can certainly _recommend_ that a public official be removed. I don’t see any statutory authority for them to remove anyone. At this point, I call bullshit on your claim that a California civil grand jury can remove a public official from office. ---
**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, 9:23pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/55 "2015-12-29T21:23:32Z")
> [@Czarcasm](#): > > Is it possible for a prosecutor to present a weak case for prosecution and a strong case for dismissal, or does he just present all the evidence available in order without comment? Well, this is a difficult question to meaningfully answer. One answer is: any presentation done by human beings will have a rhetorical flavor to it. In other words, even the tone of voice used when asking a question can shape the perception of the listener. So in that sense, the prosecutor does not present evidence without comment – his every intonation is a comment of some type. As **DrDeth** correctly observes, he cannot lie or deceive. He cannot present testimony he knows to be false. BUt he can decide what kind, and how much, evidence to present. ---
**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, 9:29pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/56 "2015-12-29T21:29:56Z")
> [@Bricker](#): > > As **DrDeth** correctly observes, he cannot lie or deceive. He cannot present testimony he knows to be false. BUt he can decide what kind, and how much, evidence to present. This implies that he can withhold evidence. Am I getting this wrong? ---
**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, 9:32pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/57 "2015-12-29T21:32:54Z")
> [@Bricker](#): > > Nothing in that link supports your claim. > > California [Penal Code Sec. 925-933.6](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=925-933.6) describes the powers of the grand jury in that state: > > There’s a load of stuff they can investigate, and they can certainly _recommend_ that a public official be removed. > > I don’t see any statutory authority for them to remove anyone. > > At this point, I call bullshit on your claim that a California civil grand jury can remove a public official from office. Well, does the House Impeach or just Indict? The _accusation_ is step one in the process, and the few times it has been used, the office holder stepped down voluntarily almost every time. [http://cgja.org/general-information](http://cgja.org/general-information) - Investigating allegations of a public official’s corrupt or willful misconduct in office, and when warranted, filing an “accusation” against that official to remove him or her from office. The accusation process is considered to be “quasi-criminal” in nature.\* [http://www.sacgrandjury.org/documents/background.asp](http://www.sacgrandjury.org/documents/background.asp) \*§ 919(c) of the Penal Code requires the grand jury to inquire into the willful or corrupt misconduct in office of public officers of every description within the county. Where misconduct is found, the grand jury may file an accusation leading to a trial. If the official is convicted, the person is thereby removed from office. Very few of these accusations are filed. Frequently, if there is misconduct in office, it is of a criminal nature, and an indictment rather than an accusation would be issued. It is also possible that an official would resign rather than face an accusation. \* \*Sections 3060-3075 of the California Government Code provide that a Grand Jury can present an accusation against any officer of a district, county, or city for willful or corrupt misconduct. \* [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=03001-04000&file=3060-3075](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=03001-04000&file=3060-3075) ---
**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, 9:33pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/58 "2015-12-29T21:33:01Z")
In other words, the grand jury cannot remove a public official from office. That power is reserved to the court. > [@](#): > > This implies that he can withhold evidence. Am I getting this wrong? He can put on whatever evidence he likes. But we are again walking the line between what is in the prosecutor’s power and what is ethical (and I should note that there are both large E ethics that can get an attorney disbarred and small E ethics that are basically just moral imperatives at issue). ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/59 "2015-12-29T21:35:47Z")
> [@Czarcasm](#): > > This implies that he can withhold evidence. Am I getting this wrong? No, he cannot withhold. He can color. ---
**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, 9:36pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/60 "2015-12-29T21:36:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In other words, the grand jury cannot remove a public official from office. That power is reserved to the court. The Court can’t remove him either, without the accusation. The Grand Jury is step one of a process. [Previous page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=2) [Next page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=4)