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Old April 15, 2012, 06:15 PM   #9
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,770
Quote:
Originally Posted by animal
...IMO, a Grand Jury does serve better as insulation from political pressure (both by an authoritarian govt. and from a govt. bending to popular pressure … the two greatest enemies of the rule of law, IMHO)....
Maybe and maybe not. Remember, the prosecutor presents the case his way to the grand jury. The defense does not present to the grand jury. So the prosecution, i.e., the government, controls what the grand jury hears and how it hears it.

If the prosecutor is inclined to misconduct, he's can try to manipulate the grand jury. That seems to be what happened with the Duke lacrosse players. (Actually, to be fair, I'm not sure they were indicted by a grand jury. In the material I've recently read, a grand jury wasn't mentioned specifically. But the accusation was referred to as an indictment, which, if the term is being used correctly, implies a grand jury.)

Quote:
Originally Posted by animal
...I meant a scenario where a person won his criminal case and then sued the State that prosecuted him… Has one of those lawsuits ever made it to SCOTUS : where presentment or indictment by a Grand Jury was considered as a guarantee against undue loss of liberty or property by the accused during the "process"?...
There can be, and certainly have been, suits claiming wrongful arrest, wrongful prosecution, deprivation of civil rights based on prosecutorial misconduct, etc. Duke University and the lacrosse players sued and collected. But the bases of such suits would be the sorts of things I've mentioned. One would be highly unlikely to get anywhere claiming he was wrongfully brought to trial because it was done on an information rather than an indictment. There would have to be a lot more to it -- to the point that whether or not the matter went to a grand jury would most likely fade into irrelevance.

[1] As Jim mentioned, prosecutors have qualified immunity.

[2] If one is held to answer (accused and being taken to trial) based on an information rather than an indictment, if after prevailing you sue solely based on the lack a a grand jury, you would need to show that if your case had gone to the grand jury they would not have indicted you. That can be pretty tough to prove.

[3] Suppose you were held to answer based on an information (or an indictment for that matter), and you're finally acquitted by a jury. That means you were unable to dispose of the charge at one of the various preliminary stages before trial. If that has happened, it's probably going to be tough to convince a civil court that the government didn't at least have probable cause to try you. And that will drive a stake through the heart of your lawsuit.
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