Tuesday, July 8, 2008

Grand Juries

I just ran into an interesting situation. I have a client in an assault case, just indicted by the grand jury. The issue is that the only witness who testified before the grand jury was the police officer who took the report and who was not a witness to any of the events of the alleged crime.

We all know that a prosecutor can indict anyone at any time. This case underscores that. If you can be indicted without any direct testimony - only hearsay - what purpose does a grand jury serve. Recall that the original purpose of a grand jury was to add a layer of protection for criminal defendants. Before you could be arrested and put to trial, a grand jury had to find probable cause.

But what protection does a grand jury serve today? If a grand jury can be presented nothing but hearsay and can indict do they serve any useful purpose? I don't think so.

So, what could we do? Well, the U.S. Supreme Court has held that an indictment can be based upon evidence that would be inadmissible at trial. The Tennessee Supreme Court has ruled similarly, in a 1978 case, but they also cautioned prosecutors against relying solely upon hearsay testimony in grand juries. Perhaps it is time to revisit that issue. This case could give me a mechanism to do that.

I am considering filing a motion to quash the indictment. If I do, I expect that it would be overruled based upon the precedent (remember, we can file motions even if the law is contrary so long as we can make a good faith argument that the law ought to be changed). That would lay the groundwork for appeal. The problem with that is that I fully expect to win this case at trial, so no appeal would be necessary.

But it is something to think about.


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