The prosecution represents “the people” – in Oregon they are referred to as District Attorneys, or in Federal Court as Assistant United States Attorneys. The prosecutor’s job is to prosecute crimes for their jurisdiction (such as the city, county, or for federal crimes). Although their job is also to “seek justice,” that is a task many view very differently than a suspect or even the defense bar.
Prosecutors will review the police and investigator’s reports, and often speak with complaining witnesses (whom they will refer to as victims), witnesses, and forensic experts. In so doing, they will evaluate:
Whether a case should be brought (cases where they determine no crime was committed, or where it is apparent prosecution will be impossible are ‘no complainted’)
What charges are appropriate under the facts of the case
What their position will be on the release status of the defendant: do they feel the defendant should be in jail pending trial, or are there release conditions which will "ensure the safety of the public and the victim, the defendant's court appearance and that the defendant does not engage in domestic violence while on release."FN
Whether to schedule a grand jury to hear the case
In State Court, the prosecutor will then file an “Information,” which is the charging document filed with the court and causes the machinery of the criminal justice system to begin turning. A file is opened with the court, and court appearances begin getting scheduled. For misdemeanors, the case will proceed under this document; felonies require a probable cause determination before they may proceed – either by way of a preliminary hearing, or more commonly by a grand jury. A preliminary hearing gives the defense the opportunity to cross-examine the state’s witnesses, and is therefore rarely used by prosecutors.
The prosecutor has sole control over the grand jury. The grand jurors will decide in felony cases which charges, if any are appropriate, at least in theory. The problem of course with this theory is that they are advised by the prosecutor, the only legally trained person in the room. The old adage is that even a bad prosecutor could indict a ham sandwich for murder. That being said, most prosecutors approach their jobs with fairness and diligence, and are not out to unnecessarily charge those undeserving, or add to their own caseloads.
Grand jury indictments in Oregon are always listed as “Secret Indictments,” a term most people find puzzling. The simple answer is the only secret is that the defense team, and the defendant were not present for the grand jury. The defendant/suspect does not have a right to testify before the grand jury; it is only by the prosecutor’s grace that defendants are allowed to address the grand jurors. Even when suspects are allowed to testify, they must do so without their lawyer in the room. This leads to an awkward situation where the defense lawyer loiters in the hallway outside the grand jury room, waiting for their client to come out and request additional advice. The prosecutor can, and will ask questions of the defendant in the grand jury, thereby opening the defendant up for potential problems with both testimony, as well as the loss of trial strategy down the road.
An experienced advocate can guide you through the system, helping you make the best possible decision for you and your case at each stage of the proceedings.
