# 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:** 4
**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, 9:44pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/61 "2015-12-29T21:44:34Z")
> [@DrDeth](#): > > The Court can’t remove him either, without the accusation. The Grand Jury is step one of a process. The court can’t remove him without him having been born. His mother going into labor is step one in the process. Jesus fucking Christ, dude, just admit that you’re wrong. Because you are. Wrong. W-r-o-n-g. ---
**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, 9:49pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/62 "2015-12-29T21:49:22Z")
You guys are patently mistaken, at least in Ohio, about “withholding.” In a trial the prosecutor who comes upon exculpatory evidence and does not disclose it, can have the trial result overturned by an appellate court (assuming it was a conviction), with prejudice in many cases. In a grand jury there is no requirement as to what evidence he must submit. For example I believe McGinty commissioned three expert use of force reports on the shooting, and I believe all three tended to exonerate the officer of criminal wrongdoing. If 2 had exonerated him and 1 had condemned him, he could’ve only submitted the condemnatory one to the grand jury, and withheld the other two. At trial, though, he’d have to make all three available to the defense, I believe. ---
**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, 9:57pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/63 "2015-12-29T21:57:57Z")
> [@DrDeth](#): > > No, he cannot withhold. He can color. This is not true. If the prosecutor has pieces of evidence: A, B, C, and D, he can choose to present just A, just B, just C, just D, or any combination or permutation. What he cannot do is lie and say D does not exist or say D is actually != D. Simply omitting D is fine. Prosecutorial discretion is near absolute. ---
**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, 10:00pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/64 "2015-12-29T22:00:12Z")
> [@Martin\_Hyde](#): > > You guys are patently mistaken, at least in Ohio, about “withholding.” In a trial the prosecutor who comes upon exculpatory evidence and does not disclose it, can have the trial result overturned by an appellate court (assuming it was a conviction), with prejudice in many cases. In a grand jury there is no requirement as to what evidence he must submit. For example I believe McGinty commissioned three expert use of force reports on the shooting, and I believe all three tended to exonerate the officer of criminal wrongdoing. If 2 had exonerated him and 1 had condemned him, he could’ve only submitted the condemnatory one to the grand jury, and withheld the other two. > > At trial, though, he’d have to make all three available to the defense, I believe. Who, specifically, is wrong about what, specifically? You seem to be jumping back and forth between a grand jury and a trial. I think most people in this thread are talking on about the former. ---
**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, 10:03pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/65 "2015-12-29T22:03:03Z")
> [@John\_Mace](#): > > Who, specifically, is wrong about what, specifically? You seem to be jumping back and forth between a grand jury and a trial. I think most people in this thread are talking on about the former. I’m not jumping around at all, I’ve made it pretty obvious when I’m talking about a petit versus a grand jury. **DrDeth** said: > [@](#): > > He can put a spin on the evidence, softpedal, etc. But he cannot conceal or lie. In a grand jury, the prosecutor can conceal whatever he wants. He only presents what he wants. Now, if the grand jury subpoenas something he cannot interfere with that. He also cannot lie to the grand jury, but he has no obligation to present all the evidence. **Czarcasm** said: > [@](#): > > This implies that he can withhold evidence. Am I getting this wrong? He can withhold evidence, only at trial is a prosecutor subject to requirements to disclose evidence to the court/defense. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 12:05am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/66 "2015-12-30T00:05:32Z")
> [@DrDeth](#): > > 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) Sure. If you had claimed that the grand jury can initiate a process that ultimately may remove a public office holder from office, I would not have questioned you. But the claim you made is inaccurate. What you should do here, rather than trying to twist your claim into something correct, is simply say, “Whoops, my mistake: a grand jury’s accusation is a critical step in the process, but I was wrong to say that grand juries in California have the power to remove public officials 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 30, 2015, 12:10am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/67 "2015-12-30T00:10:22Z")
> [@Czarcasm](#): > > This implies that he can withhold evidence. Am I getting this wrong? No, you’re right on the money. In fact, now your quote from Scalia is very relevant: it says unambiguously that the prosecutor can withhold evidence – specifically, exculpatory evidence. If he chose to, he could withhold inculpatory evidence. That’s prosecutorial discretion. Note that at trial, the rules are slightly different – there, the prosecutor has a constitutional duty to furnish the defense with all exculpatory evidence in his possession or knowledge. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 30, 2015, 12:11am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/68 "2015-12-30T00:11:09Z")
> [@Bricker](#): > > Sure. If you had claimed that the grand jury can initiate a process that ultimately may remove a public office holder from office, I would not have questioned you. > > But the claim you made is inaccurate. What you should do here, rather than trying to twist your claim into something correct, is simply say, “Whoops, my mistake: a grand jury’s accusation is a critical step in the process, but I was wrong to say that grand juries in California have the power to remove public officials from office.” As usual, you are pedantic but technically correct. :smack: Yes,\* all by itself,\* the GJ cannot remove a public official. But the \* accusation \*by itself is so damning that it’s almost never brought to the next steps, the Official usually just resigns. In effect- the GJ accusation will get a official out of office. However, yes, my statement, due to it’s brevity, was technically incorrect. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 12:20am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/69 "2015-12-30T00:20:14Z")
> [@DrDeth](#): > > No, he cannot withhold. He can color. That is incorrect. The prosecutor has no obligation to present exculpatory evidence to the grand jury. He also has no obligation to present all the inculpatory evidence. Here’s an example: imagine the police have a legal wiretap on Anthony Baritone’s phone. From this, they hear Anthony ordering his two goons, Bruno and Charlie, to break the legs of Doug, who is behind on his loan shark payments owed to Anthony. The police stake out Doug’s restaurant and are in perfect position to arrest Bruno and Doug before they can do more than menacingly break a few dishes. The prosecutor can seek an indictment against Bruno and Charlie for racketeering and assault, and present the grand jury with Doug’s testimony and that of the arresting officers, who saw Bruno and Charlie break the dishes. He has no obligation to also reveal the wiretap and its fruits, even though it would make his case much stronger. But he has enough to secure an indictment already, and by leaving the wiretap in place, he’ll continue to develop information. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 12:23am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/70 "2015-12-30T00:23:38Z")
> [@Martin\_Hyde](#): > > At trial, though, he’d have to make all three available to the defense, I believe. Generally the proposition is correct that evidence favorable to the defense must be shared with the defense for trial. This is called “Brady” material after the case so holding. But in this specific example, no. The expert’s reports would probably be attorney work product, and not discoverable. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 12:27am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/71 "2015-12-30T00:27:45Z")
> [@DrDeth](#): > > As usual, you are pedantic but technically correct. :smack: > Yes,\* all by itself,\* the GJ cannot remove a public official. But the \* accusation \*by itself is so damning that it’s almost never brought to the next steps, the Official usually just resigns. In effect- the GJ accusation will get a official out of office. > > However, yes, my statement, due to it’s brevity, was technically incorrect. Here was your statement: > [@DrDeth](#): > > A Civil Grand jury can _remove_ a Public Official from Office. It’s very rare, however. I don’t believe my original interpretation was unjustified. But, glad we cleared the issue up. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 30, 2015, 4:01am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/72 "2015-12-30T04:01:03Z")
> [@Bricker](#): > > No, you’re right on the money. In fact, now your quote from Scalia is very relevant: it says unambiguously that the prosecutor can withhold evidence – specifically, exculpatory evidence. > > If he chose to, he could withhold inculpatory evidence. That’s prosecutorial discretion. > > Note that at trial, the rules are slightly different – there, the prosecutor has a constitutional duty to furnish the defense with all exculpatory evidence in his possession or knowledge. I am not sure you’re right here. exculpatory evidence-sure since the purpose of a GJ is not to determine Guilt or innocence, but simple to decide whether there is enough evidence to return a indictment. United States v. Williams (90-1972), 504 U.S. 36 (1992). “(b) The Court of Appeals’ rule would neither preserve nor enhance the traditional functioning of the grand jury that the “common law” of the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence. Moreover, motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury have never been allowed, and it would make little sense to abstain from reviewing the evidentiary support for the grand jury’s judgment while scrutinizing the sufficiency of the prosecutor’s presentation. Pp. 14-18.” Since it goes against the very purpose of a GJ to not present all the needed inculpatory evidence, I am not sure if this case is on point here. In other words, I think the DA must present enough inculpatory evidence he has to get a indictment. I am not sure if he can withhold such inculpatory evidence as would lead to such an indictment. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [December 30, 2015, 4:12am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/73 "2015-12-30T04:12:44Z")
> [@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. But aren’t Grand Jury records sealed? IIRC that was part of the issue in the Eric Garner case was that the GJ records couldn’t be released. So How are voters to know if the prosecuter did their job or not. Secondly, isn’t it only the DA that can be not re-elected? The prosecutors that actually are on the cases are not elected officials. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 4:50am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/74 "2015-12-30T04:50:48Z")
> [@DrDeth](#): > > I am not sure you’re right here. exculpatory evidence-sure since the purpose of a GJ is not to determine Guilt or innocence, but simple to decide whether there is enough evidence to return a indictment. > United States v. Williams (90-1972), 504 U.S. 36 (1992). “(b) The Court of Appeals’ rule would neither preserve nor enhance the traditional functioning of the grand jury that the “common law” of the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence. Moreover, motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury have never been allowed, and it would make little sense to abstain from reviewing the evidentiary support for the grand jury’s judgment while scrutinizing the sufficiency of the prosecutor’s presentation. Pp. 14-18.” > > Since it goes against the very purpose of a GJ to not present all the needed inculpatory evidence, I am not sure if this case is on point here. In other words, I think the DA must present enough inculpatory evidence he has to get a indictment. I am not sure if he can withhold such inculpatory evidence as would lead to such an indictment. So you quoted _Williams_ to agree with me – a case already cited by me, and mentioned by the OP. Your long quote simply affirms the proposition we are all saying: there is no duty to present exculpatory evidence to the grand jury. For the proposition on which we disagree, your evidence is “I think.” Do you have any citation to authority for the idea you have? Because a moment’s thought would reveal its flaws. If a prosecutor is permitted to withhold inculpatory evidence at all, then how would your idea work? If the grand jury no true bills, dies that retroactively mean the prosecutor breached his duty? Is this another deal where you accidentally substituted brevity for accuracy? Because, you’re wrong. You cannot point to a single authority that assigns such a duty to the prosecutor as “You must present enough inculpatory evidence to secure an indictment.” Where in the world did you get this zany idea? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2015, 5:06am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/75 "2015-12-30T05:06:42Z")
> [@Saint\_Cad](#): > > But aren’t Grand Jury records sealed? IIRC that was part of the issue in the Eric Garner case was that the GJ records couldn’t be released. So How are voters to know if the prosecuter did their job or not. The voters can presumably judge the results, if not the detail. > [@](#): > > Secondly, isn’t it only the DA that can be not re-elected? The prosecutors that actually are on the cases are not elected officials. Yes–but the assistant commonwealth attorneys (states’ attorneys/district attorneys) typically serve at the pleasure of the top guy. ---
**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 30, 2015, 6:48am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/76 "2015-12-30T06:48:20Z")
> [@DrDeth](#): > > As usual, you are pedantic but technically correct. :smack: > Yes,\* all by itself,\* the GJ cannot remove a public official. But the \* accusation \*by itself is so damning that it’s almost never brought to the next steps, the Official usually just resigns. In effect- the GJ accusation will get a official out of office. > > However, yes, my statement, due to it’s brevity, was technically incorrect. I tried that argument with my 1st grade teacher when I was marked incorrect for 2+2=3. My answer was technically incorrect, but only because, due to brevity, I hadn’t got to “4” yet. Sister Mary Margaret didn’t buy it. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [December 30, 2015, 10:23am UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/77 "2015-12-30T10:23:44Z")
I’ve yet to read what damning evidence has been suppressed. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 30, 2015, 6:45pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/78 "2015-12-30T18:45:41Z")
> [@Bricker](#): > > So you quoted _Williams_ to agree with me – a case already cited by me, and mentioned by the OP. Your long quote simply affirms the proposition we are all saying: there is no duty to present exculpatory evidence to the grand jury. > > For the proposition on which we disagree, your evidence is “I think.” > > Do you have any citation to authority for the idea you have? Because a moment’s thought would reveal its flaws. If a prosecutor is permitted to withhold inculpatory evidence at all, then how would your idea work? If the grand jury no true bills, dies that retroactively mean the prosecutor breached his duty? > > Is this another deal where you accidentally substituted brevity for accuracy? > > Because, you’re wrong. You cannot point to a single authority that assigns such a duty to the prosecutor as “You must present enough inculpatory evidence to secure an indictment.” Where in the world did you get this zany idea? There’s nothing is Williams that allows a Prosecutor to withhold inculpatory evidence, is there? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 30, 2015, 6:46pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/79 "2015-12-30T18:46:48Z")
> [@Saint\_Cad](#): > > But aren’t Grand Jury records sealed? IIRC that was part of the issue in the Eric Garner case was that the GJ records couldn’t be released. So How are voters to know if the prosecuter did their job or not. GJ can be a open hearing, but there’s then limits. ---
**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 30, 2015, 6:47pm UTC](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630/80 "2015-12-30T18:47:27Z")
There is nothing in _Williams_ that addresses inculpatory evidence at all. The only question presented in that case and addressed by the court was about exculpatory evidence. As a practical matter, such a question would probably never be addressed because there’s nobody with standing to raise it. [Previous page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=3) [Next page](https://boards.straightdope.com/t/is-it-proper-for-a-grand-jury-prosecutor-to-intend-exculpation/741630.md?page=5)