PROSECUTOR'S STUDY TO PRESENT EXCULPATORY EVIDENCE TO AN INDICTING GRAND JURY

• NCJ Number: 44218
• Journal: Michigan Law Review Volume: 75 Issue: 7 Dated: (JUNE 1977) Pages: 1514-1538
• Author(s): ANON
• Date Published: 1977
• Length: 25 pages
• Corporate Author: Michigan Law Review Assoc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE PROCEDURAL DISPARITIES BETWEEN PROSECUTION BY INFORMATION AND PROSECUTION BY INDICTMENT ARE EXAMINED IN A DISCUSSION OF THE RESPONSIBILITIES OF A PROSECUTOR IN PRESENTING EVIDENCE TO A GRAND JURY.

Abstract

SLIGHTLY MORE THAN HALF OF THE STATES REQUIRE THAT PROSECUTION OF ALL FELONIES BE BY INDICTMENT. OTHER STATES ALLOW THE PROSECUTOR TO CHOOSE BETWEEN THE INDICTMENT AND THE INFORMATION APPROACH. IN MOST OF THESE STATES, THERE IS A PREDOMINANT RELIANCE ON INFORMATION. IN PROSECUTION BY INFORMATION, THE FILING OF AN OFFICIAL ACCUSATION AGAINST THE DEFENDANT IS PRECEDED BY A PRELIMINARY HEARING BEFORE A MAGISTRATE. THE PROSECUTOR MUST PRODUCE ENOUGH EVIDENCE AT THE HEARING TO JUSTIFY A FINDING OF PROBABLE CAUSE. THE DEFENDANT MAY TESTIFY ON HIS OWN BEHALF, CROSS-EXAMINE PROSECUTION WITNESSES, AND CALL HIS OWN WITNESSES. THE INDICTMENT PROCEDURE DIFFERS IN THAT THE PROSECUTOR MUST CONVINCE A MAJORITY OF GRAND JURORS RATHER THAN A SINGLE MAGISTRATE THAT PROBABLE CAUSE EXISTS. IN ADDITION, THE PROSPECTIVE DEFENDANT HAS NO RIGHT TO APPEAR BEFORE THE GRAND JURY OR TO REBUT THE PROSECUTION'S CASE. THE CONSEQUENCES TO A DEFENDANT OF A PROSECUTOR'S DECISION TO SEEK AN INDICTMENT RATHER THAN TO PROCEED BY INFORMATION ARE EXAMINED, AS ARE THE REASONS UNDERLYING THE DISCRETION GIVEN THE PROSECUTOR TO CHOOSE BETWEEN THE TWO METHODS (IN SOME STATES) AND THE POTENTIAL FOR ABUSE OF THIS DISCRETIONARY POWER. TWO APPROACHES TO MINIMIZING THE POTENTIAL FOR ABUSE -- CONSTITUTIONAL ATTACKS ON THE DISPARITY BETWEEN INFORMATION AND INDICTMENT, AND APPLICATION OF THE LEGAL DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL -- ARE REJECTED. IT IS CONCLUDED THAT A MORE PRACTICAL APPROACH WOULD BE TO ELIMINATE THE PROSECUTOR'S INCENTIVE TO OPT FOR INDICTMENT WHEN NO PUBLIC POLICY, JUSTIFIES THAT CHOICE, AND TO IMPOSE, UNDER COMMON LAW OR BY INTERPRETATION OF STATE STATUTE, THE RULE THAT THE PROSECUTOR MUST DISCLOSE EXCULPATORY INFORMATION TO GRAND JURIES.