Presumption of Guilt

May 23, 1992

An Oklahoma businessman gave statements to banks about his assets and income in connection with loan requests. A federal grand jury indicted him because the statements were meant to mislead the banks. The U.S. attorney knew the man had made the same statements in previous bankruptcy proceedings and for tax purposes, and that he kept his own books in accordance with the accounting principles upon which his statements to the banks seemed based. This could have been interpreted to mean he had no criminal intent in his dealings with the banks.

The U.S. attorney withheld that information from the grand jurors. After being indicted, the businessman asked a district court to dismiss on the grounds that previous court rulings called for prosecutors to provide a grand jury all "substantial exculpatory evidence" when seeking indictment. The district court so ruled and was upheld by the court of appeals. This

month, the Supreme Court ruled, 5-4, that the U.S. attorney did not have to give grand jurors such evidence.

This sends the message to prosecutors that they may turn grand juries into even more rubber stamps than they are now. And are they ever. A Maryland prosecutor says of his and his colleagues' record with grand juries that they are "in the Ivory soap category." They get an indictment 99 and 44/100 percent of the time. A slight exaggeration, but a lawyer in another state who writes frequently about grand juries for professional journals says that in many of the rare instances where indictments are not returned it is because the prosecutors don't really want them -- police misconduct and other politically unpopular cases. So even lopsided statistics don't tell the full story.

One mischief that wrongful indictments by grand jurors does is to send to already overburdened trial courts bad cases that don't result in convictions. Thus valuable judicial time is wasted. More mischievous -- in fact, sinister -- is that some bad cases do result in convictions because the very fact of an indictment is so persuasive. Judges instruct trial jurors not to be swayed by the fact that a grand jury, not just a prosecutor, is making the charge. They tell them that a person on trial is "presumed innocent." But many jurors don't really buy that. Judges themselves will say in private that they assume indicted people are guilty.

A grand jury is supposed to be "protector of citizens against arbitrary and oppressive governmental action," as Justice John Paul Stevens said, quoting an earlier justice, in his dissent in the Oklahoma case. Given that role and their influence on trials, grand jurors should by right see and hear all a prosecutor's important evidence on both sides of guilt. In saying that this is not required, the Supreme Court's majority added that if Congress believes there is an "advantage" to requiring it, Congress can. It should.

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