Under federal jurisdiction, a grand jury must be assembled in all "capital or infamous crimes" (felonies). This requirement can be found under Fifth Amendment of the United States Constitution. This does not apply to the states based on a Supreme Court ruling, giving states the latitude to not use grand juries if they prefer not to. However in states that do use the process, it can act as a check on the power of the prosecution.
Federal Grand Jury vs. State Grand Jury
In 1884 the Supreme Court case of Hurtado v, California ruled that the clause in the Fifth Amendment which requires grand jury usage to indict for serious prosecutions does not apply to the states. Based on this decision the states were given the option to use grand juries or not as they saw fit. Although all states presently have provisions for a grand jury, only about half of the states use them. Twenty-two states oblige their use, to varying degrees. The prosecution can issue charges by filing a Complaint (accusation) or Information in certain jurisdictions. In these cases a preliminary hearing can be held with the defendant and their counsel present before a judge (see Pretrial Hearings).
The grand jury procedure in federal court is made up of the prosecution offering evidence to indict the accused, similarly as it is prepared in the state court system. However, the indictment must originate in the federal system as opposed to the state system. The accusations are then presented to the grand jury. Another difference is that a defense attorney, representing his client cannot present something to the Grand Jury specifically. He can attempt to get the prosecutor to work with the grand jury; presenting information which he has in his possession, but whether or not the government delivers this information is at their discretion.
But in a state grand jury procedure an attorney can essentially present particular information to the state prosecutor who will then present it to the grand jury to contemplate, along with other evidence they’re considering. Some of the items that can be presented to dissuade the prosecution are affidavits and transcripts of recordings, as well as photographs and the results of polygraph examinations. Summing this up, a defense attorney can’t present anything to a federal grand jury but in state court he can present information to a state prosecutor who will present it to a grand jury
Since the use of a grand jury is solely a judgment for probable cause, the government’s charges have a low burden of proof in its attempt to sway a jury that a crime has been committed. However, in the state system, if a defense attorney can persuade the prosecution or the Grand Jury from moving forward in bringing forth an indictment the investigation may come to a conclusion at that juncture.
Delivering an Indictment is known as a “true bill”. In a case where a capital crime to be prosecuted in federal court comes back with a “No True Bill” for indictment, the government cannot proceed with charges as the Constitution necessitates that all suspects being tried for a capital crime must be indicted by a grand jury. However, if new evidence is found the government can initiate a new grand jury and display the new evidence, attempting to get a true bill at that later time.
A state grand jury hearing can act as a type of rehearsal for the prosecution. Sometimes district attorneys’ offices like the use of a grand jury for assistance in deciding whether to move forward with a case when achieving a guilty verdict appears to be risky. This method uses the grand jury as a test of the value of their evidence before an actual trial begins.
In the state system, where a grand jury is utilized, the prosecutor still maintains total discretion on whether to prosecute, even if the grand jury returns a "not true bill."
Credentials, Honors, and Offsite Online Listings
Michael B. Cohen’s credentials display him as a strong advocate to assist through all phases of the criminal law process. Mr. Cohen is a board certified criminal trial attorney who can be trusted to effectively defend an individual’s legal rights and get the best possible results of any charges brought against them. He is admitted to practice law in the U.S. Court of Appeals for the Eleventh Circuit of Florida and Second Circuit in the New York Metropolitan area.
Mr. Cohen specializes in federal criminal defense and is also well-versed to handle all categories of cases that fall under the legal statutes of the State of Florida.
His qualifications include an AV rating by Martindale Hubbel, (pre-eminent). He is also recognized among Florida lawyers as a "Super Lawyer" which denotes a performance of being in the top 5% of criminal trial law which is his specialized field. Additionally, he is listed in the 2013 edition of "Best Lawyers in America" as well as being considered a specialist by the Florida Bar in the field of federal criminal defense.
In his career of over 35 years, Mr. Cohen has tried countless cases and is a member in good standing of both the Florida Bar and New York Bar. His practice focuses on all aspects of criminal defense in the tri-county area of Dade, Broward and Palm Beach Counties as well as other geographical locations throughout the State.
Mr. Cohen's is also "of Counsel" in the esteemed law firm of McLaughlin & Stern, LLP., located in New York City.
To contact Mr. Cohen for immediate assistance, in Fort Lauderdale call him at 954.928.0059 or call his West Palm Beach location at 561.366.8200
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