criminal-law grand-jury
Can a grand jury indict a person without identifying them beforehand?
<p>What is the threshold required for indictment? Is it the same as probable cause? Can a grand jury indict a person without proper identification using heresay witness statement. Some time a probable cause for criminal complaint is signed by a police officer or a court clerk without any direct observation solely on a basis of a witness statement identifying the suspected person on a photo without proper line-up. The prosecution then fights a defendant motion to dismiss by claiming that in-court identification will be made during the trial. Can prosecutor direct the grand jury to indict a defendant who was not properly identified?</p>

<p>You didn't specify a jurisdiction, so I'm going to discuss the US federal system.</p>

<p>According to <a href="http://law.jrank.org/pages/7199/Grand-Jury.html" rel="nofollow noreferrer">http://law.jrank.org/pages/7199/Grand-Jury.html</a>,  there's no rule against hearsay testimony in a grand jury proceeding.  And practically speaking, there'd be no way to enforce such a rule: the suspect and his lawyers aren't there during the proceeding to object, and the testimony is under seal so they won't have any way to find out later.  Nor is a judge present: just the US attorney, the witness, and the grand jurors.</p>

<p>So if the grand jury finds the hearsay evidence convincing, they can indict, and this won't be cause to dismiss the indictment after the fact.</p>

<p>(Not exactly what you asked, but somewhat relevant to the title question:  there's a <a href="https://www.law.cornell.edu/uscode/text/18/3282" rel="nofollow noreferrer">provision in federal law</a> for indicting a person identified only by their DNA profile.  But otherwise, as far as I know, an indictment has to actually name the person being indicted.)</p>

<p>This question is based upon U.S. law because it references a grand jury. Only one jurisdictions other than the U.S. continues to use grand juries, even though it was historically used in all jurisdictions that descend from the common law legal system of England. </p>

<p><a href="https://en.wikipedia.org/wiki/Grand_jury" rel="nofollow noreferrer">Liberia</a> is the only other country in the world that continue to use grand juries. But, my guess is that the odds are good that in this context you are not asking a question about Liberia. </p>

<p>Japan has an analogous institution, the <em>Kensatsu Shinsakai</em> (Prosecutorial Review Commission or PRC system), instituted in 1948 under U.S. military occupation and inspired by the American system, but it isn't strictly comparable and comes in the context of a much different criminal justice system overall.</p>

<blockquote>
  <p>What is the threshold required for indictment? Is it the same as
  probable cause?</p>
</blockquote>

<p>Yes. </p>

<p>A grand jury is supposed to indict if it finds that there is probable cause that that indicted defendant committed the crime for which that defendant is indicted. A grand jury is supposed to decline to indict if the grand jury finds that probable cause to believe that the indicted defendant committed the crime for which an indictment is sought is not present.</p>

<p>This is evaluated on a charge by charge, defendant by defendant basis. A grand jury could indict a defendant on some charges sought by the prosecutor and decline to indict that defendant on other charges sought by the prosecutor.</p>

<blockquote>
  <p>Can a grand jury indict a person without proper identification using
  heresay witness statement. Some time a probable cause for criminal
  complaint is signed by a police officer . . . without any
  direct observation solely on a basis of a witness statement
  identifying the suspected person on a photo without proper line-up.</p>
</blockquote>

<p>The key issue is that there has to be probable cause that the person indicted committed the crime for which they are indicted. </p>

<p>This can be proven by any number of means. Not infrequently, there were no witnesses to the crime being committed, for example, when someone murders someone they are with and no one else is around. Any available evidence, including hearsay evidence, can be used to establish probable cause. Maybe there are footprints, or finger prints, or there is DNA evidence, or somebody heard somebody mention that they heard someone brag about having committed a crime, or there is a particular modus operandi that is distinctive to a particular person. </p>

<p>A hearsay witness statement identifying the suspected person based upon a photo without proper line-up is a valid basis upon which a grand jury can find that there is probable cause to believe that a suspect committed the crime for which the suspect is indicted.</p>

<p>This isn't proof of guilt or grounds for a conviction. It is merely a determination that there is some plausible reason to hold a trial and allow a petite jury or judge to decide if that indicted defendant is guilty beyond a reasonable doubt, following a full presentation of evidence subject to the full rules of evidence that apply at trial.</p>

<p>A grand jury's purpose is to screen out baseless utterly weak criminal charges, not to resolve cases where there is legitimate evidence linking a defendant to a particular crime, which may or may not be good enough to demonstrate that the defendant is guilty beyond a reasonable doubt.</p>

<blockquote>
  <p>Some time a probable cause for criminal complaint is signed by a
  police officer or a court clerk . . . </p>
</blockquote>

<p>A court clerk doesn't generally sign criminal complaints (unless the court clerk was personally the victim of the crime, of course), they accept them from other people, enter them into the system, forward them to a judge or prosecutor with a grand jury docket, and file them away.</p>

<p>It could be that in some jurisdictions, for crimes that don't go to a grand jury (i.e. misdemeanors and other minor offenses), that a police officer is authorized to make a probable cause determination without having it reviewed by a judge. But, even then, when a clerk checks a box that says "probable cause" the clerk isn't making a substantive decision that probable cause is present, the clerk is just checking a box to say that a probable cause determination was made by whomever has been given the authority to make that determination in that jurisdiction.</p>

<p>It is also possible that someone you assume is a court clerk is in fact a magistrate (i.e. a junior judge) or that the court clerk is acting at the direction of a magistrate in an interaction that you did not observe.</p>

<p>Police officers sign criminal complaints in their capacity as witnesses stating the evidence that they assert amounts to probable cause, but generally only a judge or a grand jury or a prosecutor (in cases where there is no grand jury requirement and no preliminary hearing requirement, such as in misdemeanor cases) decides if the statements in the criminal complaint actually do amount to probable cause.</p>

<p>Only a magistrate or a judge has the authority to issue an arrest warrant or a search warrant, although law enforcement officers (and under certain circumstances even ordinary citizens) can arrest someone or conduct a search or seizure under certain constitutionally defined exceptions to the warrant requirement. A court clerk who is not a <em>de facto</em> magistrate, or a law enforcement officer never has the authority to issue an arrest warrant or a search warrant, as a matter of constitutional law.</p>

<blockquote>
  <p>The prosecution then fights a defendant motion to dismiss by claiming
  that in-court identification will be made during the trial.</p>
</blockquote>

<p>Defendants can ask the judge to suppress out of court witness identifications made prior to trial that do not meet the constitutional and evidentiary requirements for a valid witness identification of a suspect, where the case involves an eye witness who can identify the suspect. When they do, prosecutors ask that the judge not take this step and they argue whether the applicable legal standards for throwing out a pre-trial witness identification have been made. </p>

<p>Defendants also sometimes argue, before or during trial, than an in-court identification of a defendant by a witness should not be made because that would be tainted by a bad pre-trial out of court witness identification or would be unreliable for some other reason.</p>

<blockquote>
  <p>Can prosecutor direct the grand jury to indict a defendant who was not
  properly identified?</p>
</blockquote>

<p>The prosecutor can't direct the grand jury to do anything. The prosecutor can ask the grand jury to indict a defendant if there is probable cause to believe that the defendant committed the crime for which the indictment is sought. This could often be the case, even if the witness identification part of the pre-trial investigation process by law enforcement was conducted in a manner that will not be admissible at trial, or for that matter, if no witness ever identified the defendant as the person who committed the crime (perhaps because law enforcement has not located anyone who witness the crime being committed).</p>

<p>The grand jury can grant or deny the prosecutor's request as it sees fit. They do not have to indict a defendant simply because the prosecutor asks them to do so. If they think that the prosecutor has failed to establish probable cause, they have the right to issue a "no bill" and to decline to indict the defendant that the prosecutor asks them to indict.</p>

<p>But, just because a grand jury declines to indict someone doesn't mean that the prosecutor is barred from coming back to a new grand jury a few months later and asking the new grand jury to indict the same defendant on the same charge with the same evidence.</p>

<p>Prosecutors do, however, have an ethical obligation (for which they are rarely disciplined except in the clearest of cases, such as direct evidence that they intentionally brought baseless charges against someone for personal revenge for dating their ex-wife or supporting a different candidate for DA or something like that), not to attempt to indict or criminally charge with a crime, anyone that they do not personally believe there is probable cause to believe has committed the crime charged. </p>

<p>In other words, it is an unethical for a prosecutor to bring a charge that the prosecutor personally believes is baseless. A prosecutor who does that could be suspended from the practice of law or lose his or her law license entirely.</p>

<p><strong>From the comments by the person posting the question:</strong></p>

<blockquote>
  <p>Here is real life example: surveillance camera took a low resolution
  video of unauthiruzed entrant into the business office. Someone in the
  office looks at the video and claims to recognize the person.</p>
</blockquote>

<p>In the situation described: "surveillance camera took a low resolution
video of unauthorized entrant into the business office. Someone in the office looks at the video and claims to recognize the person.", it is not at all obvious to me that the witness identification is improper. </p>

<p>Not every pre-complaint witness identification needs to be conducted in the form of an in person line up. </p>

<p>The prohibition is against the police using unreasonably suggested means to cause a witness who had no basis to name the person named as a suspect to do so. If a witness sees a video and volunteers without law enforcement prompting that they recognize a particular person in the video, that is a valid witness identification and it would not be thrown out.</p>

<blockquote>
  <p>The company files a trespass complain with the municipal court.</p>
</blockquote>

<p>In most jurisdictions, a citizen makes a complaint to the law enforcement officer, who either presents the charge to a court and asks for an arrest warrant, or asks the assigned prosecutor to do so for the law enforcement officer after the prosecutor reviews the charges provided by the law enforcement officer based upon what the citizen said or wrote.</p>

<p>But, a few East Coast jurisdictions still allow citizens to directly present a criminal complaint to a court.</p>

<blockquote>
  <p>The court clerk checks the box on a complaint "probable cause" and signes > the arrest warrant on the indicated</p>
</blockquote>

<p>I don't know of any court system where a citizen directly presents a criminal complaint to a court clerk who is not a magistrate (and not acting at the direction of a magistrate) and the court clerk makes a determination that probable cause is present and issues an arrest warrant on the court clerk's own authority.</p>

<p>I don't necessarily dispute that this is possible, but even if that is the arrangement, the official is as a result of having that authority a magistrate for constitutional law and criminal procedure purposes, even if their formal title is court clerk. Only magistrates and judges have the legal authority to issue arrest warrants and search warrants.</p>

<p><strong>A Footnote On Grand Juries</strong></p>

<p>A grand jury indictment is required to commence a criminal case for serious crimes (usually defined as felonies) in the federal system and about half of U.S. states (generally in the eastern U.S.), usually because it is required by the state constitution which adopted a bill of rights protection that mirrored that of the federal constitution that has never been changed. Less serious crimes in those jurisdictions (usually defined as misdemeanors and other petty offenses) are can be commenced by a prosecutor without an indictment.</p>

<p>In the federal criminal justice system, the rate at which grand juries return indictments when a prosecutor requests them is on the order of 99% plus. Indictment rates in state grand jury systems vary considerably from as low of around 80% of cases, to almost as high as in the federal system.</p>

<p><a href="https://en.wikipedia.org/wiki/Grand_juries_in_the_United_States" rel="nofollow noreferrer">In the roughly half of the U.S. states</a> (generally in the western U.S.), a prosecutor can commence any criminal case without a grand jury indictment and usually do. In those states, grand juries are used much less often and mostly as a means of obtaining sworn testimony which is used to build a case, or to insulate a prosecutor from claims that baseless charges were brought for a political or personal motive.</p>

<p>In felony cases where charges were brought by a prosecutor without a grand jury in one of those roughly half of U.S. states that don't require a grand jury indictment for all felonies, the criminal defendant has a right to what amounts to an adversarial mini-trial before a judge, called a pre-trial hearing, at which a defendant can ask a judge to throw out the entire case or some of the charges against that defendant on the grounds that they are not supported by probable cause, and the prosecutor presents the evidence the prosecutor thinks is necessary to establish probable cause to the judge rather than to a grand jury in a secret proceeding at which not even a judge is present. In practice, it is not uncommon for felony defendants to waive the right to a pre-trial hearing for a variety of reasons.</p>

<p>In the example presented in the comments, a trespass case in municipal court, the case would not be presented to a grand jury and there would be not right to a preliminary hearing on the part of the defendant. The case would proceed directly to a trial.</p>
