When a suspect is arrested, one of the main concerns for Massachusetts defense attorney is the power of the prosecutor who will be the person who decides what to charge a defendant with. This discretion of what to charge a suspect with gives prosecutors tremendous power in the legal system, power that many people feel has to be limited. Nowhere was this power more evident than in the case of Aaron Swartz. Swartz was arrested for downloading millions of academic articles and placing them online. The federal government stepped in to “send a message” and charged Swartz with several felonies including federal fraud and computer felonies. Swartz was faced with 35 years in prison, but the prosecutor offered a plea bargain of six months in prison, which Swartz rejected. On January 11, Swartz took his own life causing outrage over the prosecutor’s actions.

It is common for prosecutors to charge people with multiple felonies in hopes of getting a plea bargain accomplished. With Swartz, the prosecutor hoped that Swartz would take the plea bargain for six months when Swartz saw that losing at trial could potentially put him in prison for 35 years. Prosecutor’s make their name off of winning cases and charging a suspect with felonies and offering a plea bargain to a less sever crime is often an easy way to scare a defendant into agreeing.

A main reason that a prosecutor has so much power is the procedure for charging a defendant with a crime. In the Swartz case, that involved a federal prosecutor. To charge Swartz with a federal crime, the prosecutor needed to secure an indictment from a grand jury. The indictment proceeding consists of only the prosecuting attorney delivering evidence to show there is probable cause to charge a suspect with a crime. The grand jury consists of 16-23 members and if at least 12 find probable cause, and indictment is returned and the charges against the suspect are formally brought.

In Massachusetts it is very similar to a federal court. When charging somebody with a felony, the prosecutor gives evidence to a grand jury to show probable cause. When an indictment is returned by the grand jury, the charges can be brought. With no defendants allowed to be present and only probable cause needed to be shown, getting an indictment does not require much work from a prosecutor. Prosecutors will use this indictment process to gain leverage on a defendant.

Allowing a defendant to be present at the indictment hearing is rare but it has proven effective to even the playing field and limit the power of prosecutors. In New York, a suspect is allowed to give evidence in objection to the indictment. New York has 6-10% of all indictments rejected; a much higher rate than any other state. Having a suspect provide evidence against a prosecutor allows the jury to get a better sense of what actually happened, and whether an indictment is actually warranted. Furthermore, the burden of proof may be too low for a prosecutor to achieve an indictment. With only probable cause needed, this is a much lower standard needed to actually obtain a judgment. This leads to prosecutors being able to bring charges that may have no chance of actually receiving a conviction. If an indictment was more difficult for a prosecutor to obtain, this would limit the prosecutor’s power. No longer would a prosecutor be able to get creative with charges in hopes of forcing the defendant to plea bargain. Less indictments may lead to more defendants being able to have their case heard by a jury