How are US grand juries instructed not to &#39;indict ham sandwiches&#39; if there is no judge or opposing counsel? In the May 26, 2021 video How a NY special grand jury could impact Donald Trump CNN’s senior legal analyst and former federal prosecutor Elie Honig mentions the following in a background piece outlining the basics of a US Special Grand Jury. After about 01:17 they say: It is a one-sided presentation; it’s only the prosecutor, the grand jurors, and a court reporter. There’s no judge, there’s no defense lawyer. So it is extremely one-sided; you hear this expression ‘the grand jury would indict a ham sandwich’ there’s some truth to that; it’s not an adversarial process like you’d have at trial. and the origin of the 'ham sandwich' reference is mentioned in Wikipedia's Grand Juries in the United States; Rubber Stamp for the Prosecution: [...]Grand jurors also often lack the ability and knowledge to judge sophisticated cases and complicated federal laws. This puts them at the mercy of very well trained and experienced federal prosecutors. Grand jurors often hear only the prosecutor's side of the case and are usually persuaded by them. Grand juries almost always indict people on the prosecutor's recommendation. An unnamed Rochester defense lawyer was quoted in a 1979 newspaper article claiming that a prosecutor could get a grand jury to &quot;indict a ham sandwich&quot;, a saying subsequently repeated by the chief judge of New York State's highest court, Sol Wachtler. And William J. Campbell, a former federal district judge in Chicago, noted: &quot;[T]oday, the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.&quot; (references therein) Question: With only prosecutor(s) and a court reporter, are jurors at all instructed to not simply &quot;rubber stamp&quot; the prosecution's desire to indict? Are the terms and concepts necessary for them to function as a jury (e.g. &quot;preponderance of evidence&quot;) explained to them? If so, by who? Is there a standard &quot;script&quot; or talking points for such instruction? --
With only prosecutor(s) and a court reporter, are jurors at all instructed to not simply &quot;rubber stamp&quot; the prosecution's desire to indict? Not really. They are told their job and the legal standards that they are required to act according to, however, and the federal judicial branch does have a short handbook for grand jurors. Are the terms and concepts necessary for them to function as a jury (e.g. &quot;preponderance of evidence&quot;) explained to them? Yes. But grand juries don't operate on a preponderance of the evidence standard. The sole evidentiary standard in a grand jury proceeding is the lower &quot;probable cause&quot; standard. Likewise, lots of evidence which would not be admissible in a criminal trial is admissible in a grand jury proceeding. The main kind of evidence not admissible in a grand jury proceeding is evidence which is &quot;privileged&quot; against court disclosure (e.g. attorney-client communications). If so, by who? The prosecutor and the handbook linked above. Is there a standard &quot;script&quot; or talking points for such instruction? Prosecuting attorney's offices in jurisdictions that usually use grand juries typically have a set of forms. In federal practice, Federal Rule of Criminal Procedure 6 is the primary source of guidance, and the Justice Department (which handles all or virtually all federal criminal prosecutions) has detailed policies and procedures for handling grand jury practice (and a 405 page practice manual) that his a matter of public record. There is some case law on what the content of an indictment must look like and on the grand jury process. Some state and local jurisdictions with routine use of grand juries probably have standard court forms for certain parts of grand jury process, and there may be some standard forms in local rules for some federal courts. But there isn't a national judicial branch sanctioned official set of court forms for grand juries in the federal criminal justice system. The rather lax supervision of grand juries reflects the fact that they are a road bump in the criminal justice process with a pretty low threshold to meet that faces sterner tests later in the process: Is there probable cause to support the charges requested by the prosecutor against the named defendants? About half of U.S. states allow prosecutors to do this without a grand jury approval, unilaterally. Every grand jury indictment must either be consented to by the defense, or approved by the court following a trial with a much higher proof beyond a reasonable doubt standard, to result in a conviction resulting in the imposition of punishment. A judge in a separate hearing determines if there will be pre-trial detention or bail conditions prior to the criminal trial.
If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on? In federal court, yes. This has been the case since Williams v. New York, 337 U.S. 241 (1949) which held that evidence such as counts and conduct upon which the defendant was not charged or indicted may still be considered in a sentencing hearing. Since U.S. v. Watts, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. See generally here. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges. Neither the Federal Rules of Evidence nor constitutional provisions related to evidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply at sentencing. Therefore, the court may consider hearsay and other types of information that would not be admissible during a trial. However, the [U.S. Sentencing] Commission has stated that information considered by a court at sentencing must have “sufficient indicia of reliability to support its probable accuracy.” Under Federal Rule of Criminal Procedure 32, the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” In resolving factual disputes, the court ordinarily applies the preponderance of the evidence standard. From here. The quote above cites the following authority: FED. R. EVID. 1101(d)(3). Williams v. New York, 337 U.S. 241 (1949). 18 U.S.C. § 3661; see also Pepper v. United States, 562 U.S. 476, 480 (2011) (“This Court has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ Williams v. New York, 337 U.S. 241, 246– 247 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct,’ and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including ‘the history and characteristics of the defendant,’ § 3553(a)(1).”). USSG §6A1.3(a). FED. R. CRIM. P. 32(i)(3)(B). USSG §6A1.3, comment.; see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding that due process does not require sentencing factors to be proved by more than a preponderance of the evidence). Federal Rule of Evidence 1101 states (emphasis added): Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: · United States district courts; · United States bankruptcy and magistrate judges; · United States courts of appeals; · the United States Court of Federal Claims; and · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in: · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; · criminal cases and proceedings; and · contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rules — except for those on privilege — do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: · extradition or rendition; · issuing an arrest warrant, criminal summons, or search warrant; · a preliminary examination in a criminal case; · sentencing; · granting or revoking probation or supervised release; and · considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. Given the immense personal importance of a sentencing hearing which can exercise discretion over a range of many decades of possible prison time, and which is frequently the only meaningful opportunity for a person who is easily proven guilty to distinguish himself or herself from other defendants, it is really very stunning and counterintuitive that this is the case. And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges? Under current U.S. Constitutional law, the maximum sentence that can be imposed must be based upon convictions by a jury or judge based upon charges upon which indictments were brought, which were proved beyond a reasonable doubt based upon admissible evidence. The leading case in support of this proposition is Apprendi v. New Jersey, 530 U.S. 466 (2000). But, at sentencing, the judge's exercise of discretion up to the maximum sentence established at trial may be made based upon a preponderance of the evidence and that evidence is not subject to the same procedural safeguards.
As I read the hypothetical facts in the linked question Bob has not filed a suit against Big Co, because no law firm is willing and able to handle such a suit (which I find unlikely). BigCo has not filed a suit against Bob, perhaps because it does not want to draw attention to Bob's claims. So there is no suit in progress. If this is true, no court has jurisdiction of the case, indeed there is no case in a legal sense. No US Court will reach out to take a case that no one has filed, and if one attempted to do so, I strongly suspect this would be a violation of the Due Process Clause of the Fifth or Fourteenth amendments, depending on whether it was a Federal or State court. If it were a Federal court, this would also violate the &quot;Case or controversy&quot; provision. I can't find any report of any US court that has tried to do anything of the sort, so there is no case law to cite about the outcome of such an attempt. If i have misunderstood the question, and either Bob or BigCo has in fact filed a suit, and some court has jurisdiction of it, then the situation is quite different. In that case a court can restrict publication of statements that might be likely to result in jury prejudice and deny one party's right to a fair trial. However such orders are strongly disfavored. A court must demonstrate by findings of fact in the gag order that impairment to a fair trial is likely, and that he proposed order is the narrowest possible means of ensuring a fair trial, and that less restrictive methods, such as change of venue, a sequestered jury, or careful examination of potential jurors, cannot achieve this goal. It must also show that the order is the least restrictive order that will achieve the goal. If such findings are not included with the order, they order may be overturned promptly by a higher court on motion of either party, or of any third party (such as a news organization) affected by it. The situation as described seems implausible.
The exact procedure varies from one district to the next, but generally speaking, it is essentially by lottery. The procedure is typically spelled out in the court's local rules. Jump to page 105 of SDNY's local rules for an example. The lottery system is not entirely random, though. Frequently it is weighted to make it more likely that a case is assigned to a judge from the district's courthouse nearest to the parties, or to make it less likely to be assigned to the chief judge or a judge on senior status. There are then various other rules governing assignments of cases to new judges or visiting judges, but those typically don't happen when a case is originally filed.
This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations.
The general rule is that sworn testimony of a witness with personal knowledge of the facts is competent evidence. A guilty verdict in a criminal case will only be upheld on appeal if sufficient competent evidence to support that verdict was admitted at trial. The hearsay rule is not about the reliability of witness testimony in general, it is about quality control with respect to witness testimony. The primary effect of the hearsay rule is to prevent someone trying to prove something from doing so by affidavit without making the person who actually made that statement that proves something come into court where they are subject to cross-examination. This shifts the burden of getting someone into court from the person trying to defend against evidence to the person relying upon the evidence. Cross-examination of a live witness is more effective at resolving subtle ambiguities or omissions in a statement than an unresponsive affidavit or testimony from someone who merely heard someone else say something. The hearsay rule also minimizes the risk illustrated by the children's game of &quot;telephone&quot; where one person passes a statement to another in many iterations and the person at the end of the line announces the statement, which is often greatly degraded or distorted from the original statement. Hearing something straight form the &quot;horse's mouth&quot; avoids that. There are many circumstances, however, where these considerations are not paramount, which is why there are myriad exceptions to the hearsay rule. Witness testimony under oath and subject to cross-examination still does not mean that the party offering it automatically proves what the witness testified to in most cases. The finder of fact can weight the credibility of the witness, physical evidence, documents that are not hearsay or are exempt from the hearsay rule, circumstantial evidence contrary to witness testimony, or of course, directly contrary testimony, in deciding what the real facts of a case are, and indeed, cases rarely go to trial unless there are disputes concerning what the facts of the case really are.
maryland I think not In Maryland (a typical state on such issues) the relevant law is Section 9-101 - Perjury, which reads in pertinent part: a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact: (1) if the false swearing is perjury at common law; (2) in an affidavit required by any state, federal, or local law; (3) in an affidavit made to induce a court or officer to pass an account or claim; (4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or (5) in an affidavit or affirmation made under the Maryland Rules. A statement of intended future conduct is probably not a &quot;fact&quot; as required by this section. Classic perjury, that is making a false statement during testimony in an actual court session is covered by subsection (a)(1), which makes it relevant what was considered perjury at common law. In Volume 2 of A Treatise on the Criminal Law of the United States By Francis Wharton (Kay and brother, 1874) section 2226 says: At Common law perjury cannot be committed in an official oath, as far as such oath touches future conduct. On page 321 of The Law and Higher Education: a Casebook by John Seiler Brubacher (Fairleigh Dickinson University Press, 1971) appears the phrase: ... a promise of future conduct, the breach of which would not support a conviction for perjury This was in reference to the 1931 US law mandating a loyalty oath, and why such a law violates due process. Also relevant is the article &quot;When Is a False Statement Perjury?&quot; by the MoloLamken law firm. This discusses the federal perjury lws: 18 U.S.C. §1621 and 18 U.S.C. §1623. There is no mention of false sttements about future conduct.
There is a special type of law enforcement officer, called a &quot;bailiff&quot; who is charged with maintaining order in a courtroom, and often, a bailiff is a direct subordinate of a judge who must follow the judge's orders. Judges can also issue special kinds of court orders, called &quot;writs&quot; which are a direction to a law enforcement agency generally to take certain action. But, in these cases, the law enforcement agency is effectively an &quot;independent contractor&quot; in relationship to the judge with considerable discretion regarding precisely how and when a writ is carried out. Somebody in the law enforcement agency to which a writ is directed is required to take action, but no individual law enforcement officer is personally compelled to comply with this order. The quote in question is not a statement about the legal authority of a judge, however. It is a statement of &quot;realpolitik&quot;. The judge can't physically force or threaten law enforcement to do what they are told to do by a judge. The cops have the guns, not the judges. Instead, the judge relies upon law enforcement obeying the judge's orders because that is what law enforcement officers do. It's right in the job title. But, if law enforcement chose to ignore judges, in general, there is very little that judges could do about that (and in some countries, law enforcement does routinely ignore judicial directions). Some forms of executive branch authority to defy judicial orders is even legally codified, most starkly in the case of the pardon power.