The Prosecutor’s Duty To Present Exculpatory Evidence to an Indicting Grand Jury

This Note explores the implications of the stark procedural disparities between prosecution by information and prosecution by indictment in those states where both methods are used. It first examines the consequences to a defendant of a prosecutor’s decision to seek an indictment rather than proceed by information, the reasons underlying the discretion given the prosecutor to choose between the two methods, and the potential for abuse of this discretionary power. It then considers several alternative approaches for minimizing this potential for abuse. After rejecting possible constitutional objections to the disparity between indictment and information procedures and application of the common-law doctrines of res judicata and collateral estoppel, this Note contends that a more satisfactory solution would be to eliminate the prosecutor’s incentive to opt for indictment when no public policy justifies that choice. In this regard, this Note gives particular attention to the effects of the rule articulated in Johnson.