Tuesday, December 08, 2015


In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. 

Grand Jury with victorious Prosecutor
after delivering Indictment
The grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. 

The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of possible defenses to a potential criminal case. It's not unusual for the grand jury to hear snippets of evidence of uncharged misconduct over a long course of time, even for weeks or months, especially in complex federal conspiracy and trafficking cases or complicated white collar fraud cases, until the prosecutor is satisfied that the case if contested by the defense can still be won at federal trial or better, that the defendant in the case can be forced to plead guilty. It's rare that the grand jury members will have the presence of mind, will power or strength of character to stop an inappropriate indictment from being issued by an ardent prosecutor. 

After all, the members of an American grand jury are relying on the prosecutor to not only give them the appropriate federal laws allegedly being violated, but also to provide the facts necessary to support a conviction under those laws. Nor is it likely to be considered prosecutorial misconduct for the federal prosecutor to unduly influence the grand jury's decision-making process as it's built within an often unfair federal criminal justice system that has a very high rate of success in forcing guilty pleas since many defendants come to believe that the criminal justice system is rigged in the government's favor.

In the federal prosecutions there's incentive to overcharge defendants at the grand jury level in order to gain leverage over defendants and to force a guilty plea with co-operation to indict other defendants. In fact in the Middle District of Florida in Tampa a defendant may receive a target letter, that advises the defendant that a grand jury has been convened to look at criminal conduct with the implicit threat that failure to respond, retain the services of a federal defense attorney and co-operate may result in a federal indictment. As a practical matter the prosecutor has such control and direction of the federal grand jury that the threats must be taken seriously. After a federal indictment the defendant with help from a federal criminal defense attorney must make an important life-changing decision, whether to plead guilty or have a federal trial.

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