PREINDICTMENT PROSECUTORIAL CONDUCT IN THE FEDERAL SYSTEM

• NCJ Number: 66361
• Journal: Journal of Criminal Law and Criminology Volume: 71 Issue: 1 Dated: (SPRING 1980) Pages: 1-31
• Author(s): J F HOLDERMAN
• Date Published: 1980
• Length: 31 pages
• Corporate Author: Northwestern University; Williams and Wilkins Co
• Sale Source: Williams and Wilkins Co; Institute for Scientific Information
• Language: English
• Country: United States of America
• Note: PRICE QUOTED FOR WILLIAMS AND WILKINS CO. IS FOR THE ENTIRE ISSUE.

Annotation

THE POTENTIAL FOR PROSECUTORIAL ABUSE IS ANALYZED AT THE PREINDICTMENT STAGE WHERE PROCEDURES ARE TRADITIONALLY CARRIED ON IN SECRET AND THEREFORE OFFER INTRINSIC OPPORTUNITY FOR ABUSE.

Abstract

PROPER PROSECUTORIAL CONDUCT IS CONSIDERED WITHIN THE PARAMETERS OF THE INVESTIGATIVE STAGE OF THE FEDERAL CRIMINAL JUSTICE SYSTEM, PRIOR TO BRINGING A FORMAL CHARGE AGAINST A DEFENDANT, BECAUSE IT IS IN THIS PHASE THAT A DEFENDANT'S RIGHTS MAY BE IRREPARABLY PREJUDICED WITHOUT THE DEFENDANT, HIS LAWYER, OR THE COURT EVER FINDING OUT. A SUMMARY OF THE PUBLISHED STANDARDS FOR PROSECUTORIAL CONDUCT IS USED AS A FRAMEWORK WITHIN WHICH POTENTIAL VIOLATIONS ARE EVALUATED. PROGRESSIVE STAGES OF THE INVESTIGATIVE PROCESS ARE THEN OUTLINED, THE DISCUSSION IDENTIFYING THE PROSECUTOR'S TASKS AND THE POTENTIALS FOR MISCONDUCT. FOR EXAMPLE, THE VERY DECISION TO INVESTIGATE AND EMPLOY THE GRAND JURY IS AT THE PROSECUTORS' DISCRETION, SINCE THE STANDARDS DO NOT DELINEATE CRITERIA FOR INVESTIGATING A CRIME OR EMPLOYING THE GRAND JURY. FURTHER, GRAND JURY POWER CAN ONLY BE USED FOR THE DISCOVERY OF CRIMINAL ACTIVITIES, AND ABUSE IS COMMITTED IF A GOVERNMENT ATTORNEY FOCUSES THE INVESTIGATION TOWARD UNCOVERING EVIDENCE TO BE USED IN A CIVIL ACTION. OTHER AREAS OF POTENTIAL MISCONDUCT INVOLVE THE USE OF GRAND JURY SUBPOENA POWER, PREAPPEARANCE INTERVIEWS, REQUESTS FOR DOCUMENTS, AND THE TIME ALLOWANCE FOR COMPLIANCE WITH SUBPOENA. THE PROSECUTION ROLE AND FUNCTION WITHIN THE GRAND JURY ROOM IS BASICALLY DEPENDENT UPON THE PERSONAL INTEGRITY OF THE PROSECUTORS, SINCE CONFLICT MAY ARISE BETWEEN THEIR DUAL ROLE OF ADVOCATE AND GRAND JURY ADVISOR. ADDITIONAL QUESTIONS RAISED INCLUDE THE RECORDING OF PROCEEDINGS, SUBPOENA OF INVESTIGATION 'TARGETS,' PRESENTATION OF FAVORABLE EVIDENCE TO THE GRAND JURY, MAINTAINING SECRECY, BARGAINING FOR TESTIMONY UNDER IMMUNITY, AND TIMING INDICTMENTS. IN THE FUTURE, MORE OPEN DISCLOSURE OF THE PREINDICTMENT STAGE WILL BE REQUIRED BECAUSE OF THE INCREASING IMPORTANCE OF THIS PHASE IN THE CRIMINAL JUSTICE SYSTEM. FOOTNOTES ARE INCLUDED. (MRK)