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Generally, Oregon law provides that the presentation of evidence to the Grand Jury is administered by the DA’s office (see ORS 132.320(9): the DA is not bound to present evidence for the defendant). But what if you have evidence which clearly contradicts the facts otherwise available to the State and that presented to the Grand Jury? As a practical matter, the DA’s office will ordinarily present contradictory evidence on your request because it gives them an opportunity to anticipate defenses and prepare a better prosecution. But what if the DA refuses to present the evidence, knowing that the evidence could be critical to the Grand Jury decision?

Try what one of my fellow practitioner’s in Oregon has done – write a letter to the DA in which you:

  1. Remind the DA of the “legal and ethical duty to present known exculpatory evidence to the Grand Jury.”
  1. Describe with specificity the known exculpatory evidence.
  1. Define the DA’s specific legal duty to present such evidence citing the 14th Amendment to the U.S. Constitution’s due process requirement, which obligates a prosecutor to present evidence to the Grand Jury that “objectively refutes facts as they appear from evidence gathered from the state’s investigation.” Cite U.S. v. Mandel, 415 F 1033,1042 (Dist. of Maryland 1976), cited with approval in State v. Harwood, 45 Or App 931, 938 rev. den. (1980).
  1. Cite Rule 3.3d of the Rules of Professional Conduct as providing a basis for an ethical duty to present “in an ex parte proceeding (which the Grand Jury certainly is), all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

If the DA still refuses and you want to press the matter, it probably involves some heavy and complex lifting.  Consider a motion to dismiss for prosecutorial misconduct and/or a complaint to the Oregon State Bar for statutory and ethical violations by the DA.

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