How (and how come) are US state/federal prosecutors allowed to seal indictments? I have recently heard Tara Reade (who had accused US president Joseph Biden of sexual attack several decades ago) say, that there has been a sealed indictment against her, for the past 3 years (2020-2023), following some kind of grand jury procedure. Assuming that is possible (regardless of whether it's actually true or not) - what is the legal basis of doing this? That is, what legislation allows for prosecutors or juries to avoid publication indictments of individuals for significant periods of time? And has this power even been challenged constitutionally? More specifically, has such process been recognized as &quot;due&quot; in context of the Fifth amendment to the US constitution?: No person shall ... be deprived of life, liberty, or property, without due process of law.
An indictment is not the deprivation of liberty. An indictment is actually part of the due process of law that is guaranteed in the Constitution. Deprivation of liberty means incarceration. The processes that are generally part of incarceration are the initial court hearings after arrest and the trials to gain conviction for offenses.
The Constitution does not define any crimes (except for an explicit limit on what can be considered 'treason.') It places limits on what penalties the government may apply for crimes and how crimes are tried in court, but it does not itself actually create any criminal offenses. Rather, state and federal law do that. Having said that, if a state government creates a crime of murder (which, obviously, they all do,) the Equal Protection Clause of the 14th Amendment does require that that law protect all people within the jurisdiction of that state. That is, a state cannot make a law criminalizing the murder of a white person, but not of a black person, for example. States can't just pick and choose who is protected by their laws. It would not violate the U.S. Constitution if a state completely decriminalized murder, though. It's exceptionally unlikely to happen, but it would not be a violation of the Constitution. Depending on exactly what you mean by 'murder,' it could be argued that murder by the government is unconstitutional, though. The 14th Amendment bans states from depriving anyone of life without due process of law: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Similarly, the 5th Amendment provides an equivalent protection from the federal government: No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law
This is actually a very complicated question, about (1) the scope of "knowingly", (2) what kind of "intent" is required for conviction, (3) how does the jury understand and evaluate concepts of intent and (4) how does an attorney persuade the jury that the situation does or does not satisfy the particular intent requirement. One thing we can dispose of quickly is the possibility that the law says that the accused has to actually know that the act is against the law. It is a standard legal fiction (2,400 years old) that the accused knows the law, or should have known. As for the 4th element, persuasion, on the strong side we have statements of intent by the accused – "And I pulled out my rifle and blew his head off, and I laughed the whole time". What the jury has to decide is whether the accused had in mind a conscious purpose of doing some act (that is, it wasn't just an accident like butt-dialing, or an instant stimulus-response reaction to some event). "Intent" generally falls in the realm of acting "purposely", which the Model Penal Code §2.02 defines as: A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. which more or less means what you think "with intent" means. That doesn't say what they intended to do, it just distinguishes intent from negligence and accident. The prosecutor would then present factual evidence that the accused had a bad intent, like showing that he actually made an attempt to access credit card account data (that such data had been accessed when he broke into the system), etc. We can sort of dispose of the other scope question about "knowingly", namely, what things would he have to know? The chunk accessing a protected computer without authorization can be interpreted in a number of ways, having to do with which elements of the clause are known to the accused. You might know that you were accessing but not know that you were unauthorized; you might know that you were accessing and unauthorized, but not know that the computer is protected. The only reliable way to know which is which is to study the case law on a statute and see if there is a controlling decision that say e.g. that you have to know that you are accessing and are unauthorized, but you don't have to know that the computer is protected. I haven't determined (yet) is there is decisive case law on this, but I'm betting that the outcome would be that not knowing of the protected status of a computer carries no weight. As for what kind of intent, there is a distinction between "specific intent" and "general intent". The distinction comes down to having some evil purpose like "make him suffer" (general intent) versus a specific evil purpose like "kill him". Finally, the people who actually decide, the jury, will be given instructions that say what they have to look for. Here is the tip of the tip of the iceberg, from California's criminal jury instructions. The judge will say... The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. and then there will be some specific elaboration of whether they have to find that the accused just generally intended to do bad, versus intended to specifically defraud.
I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts.
Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction.
I will assume that your question pertains to the United States. In other jurisdictions, different rules could apply. Context matters. The usual penalty for spoliation of evidence (the technical term for what you describe) in a civil case is a judicial determination or jury instruction that the evidence destroyed would have established the relevant part of the other side's case had it not been destroyed. In all of these cases, your failure to take affirmative action to preserve the evidence once you knew that there was a bona fide likelihood that you would be sued could be held against you by making an adverse determination that the evidence would have been unfavorable to you and possibly also money sanctions. You could not be held in contempt of court for this if these events happened before a case was commenced. In a criminal case, where you are a defendant, you have an absolute right to not incriminate yourself and do not have to take affirmative action to preserve evidence, although this right is limited to criminal cases and your failure to preserve evidence can still be held against you in a civil case. Certainly, in situation 4 you are a potential criminal defendant, so the 5th Amendment protection would apply. In situations 1 and 2, where the precautions were not put in place to facilitate a crime, the 5th Amendment would protect you if you were a potential criminal defendant, but suppose that you are a bystander like a third party ISP representative. If you were a third party, at a minimum you would have to be put on notice of the police need for the evidence, would probably have had to have had the police ask you for the evidence, and of course, would have to be aware that the destruction was imminent and have the power to prevent that destruction. If all those conditions were present, you might be guilty of obstruction of justice (there are precedents for inaction knowing of the consequences in the fact of a police question amounting to obstruction of justice). In situation 3, this kind of action pretty much amounts to being an accessory to some crime before the fact (unless someone was successfully deceived by a very elaborate story) and would likely make anyone involved part of a conspiracy to commit the crime that the destruction of the papers would facilitate. While the papers themselves might have been evidence of a crime or civil wrong, the destruction of the papers might itself be considered part of the crime, regardless of what could be established regarding the actual content of the papers.
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.
"Fraud" is a broad term. In the first 9 months of Fiscal Year 2015, the US Government prosecuted 5173 white collar crimes, according to Syracuse University's Transactional Records Access Clearinghouse. This includes mail fraud, bank fraud, conspiracy to defraud the US, identity theft, health care fraud, wire fraud, and others (listed in the link). Federal prosecutors have a large amount of discretion in when to bring charges. See The Department of Justice Policy on Charging and Sentencing and Title 9 of US Attorney's Manual, Section 27 (Principles of Federal Prosecution). These are not laws, but internal department guidance to prosecutors that outline the factors they should consider when making charging decisions. There is quite a lot of detail in these guidelines, but at the highest level, they are summed up by this paragraph from the Attorney General's memo: Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant's conduct and criminal history and the circumstances relating to commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities. The US Attorney's Manual gives very specific guidance regarding the prosecution of various forms of fraud. For example, Title 9, Section 43 covers mail and wire fraud. Here is an excerpt: Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts.