¶1(dissenting in part).
¶2I concur in divisions I and III of the majority opinion, but respectfully dissent from division II and the result reached therein. I believe the record supports the trial court’s conclusion that the prosecutor did violate the defendants’ right to have the charges against them considered by an unbiased grand jury.
¶3The majority opinion is largely based on its characterization of the list supplied the grand jury by the prosecutor as merely disclosing the defendants’ names and potential charges against them, and a lack of prejudice resulting to the defendants from the failure to indict those listed by Sheehy as “unindicted coconspirators”. Additional support for the result reached by the majority is found in its statement that the prosecutor may be permitted to request an indictment. Being unable to conclude that the inclusion of the “unindicted coconspirator” language is so attenuated from the rights of the defendant, I am impelled to dissent.
¶4The “unindicted coconspirator” label was attached to three of the persons included on the list Sheehy submitted to the grand jury, which thus did more than merely disclose the existence of prima facie cases against, those appearing before the grand jury. It is true that the failure to indict coconspira-tors does not, in and of itself, affect the defendants’ rights. It is the correlation between- this prosecutorial misconduct, see United States v. Briggs, 514 F.2d 794, 803-*16204 (5th Cir. 1975), and the result reached by the grand jury which is, however, extremely relevant to establishing the cumulative influence of the list on the independent judgment of the grand jurors, and indicates the influence of the whole list on the grand jury. Only by the inclusion of inappropriate information on the list and such a correlation could an improper influence on the decision of the grand jury be detected. The indictments in issue were considered and returned by the grand jury during a single deliberation. The prosecutor’s list influenced the grand jury to reach an improper decision on three individuals. There was a full correlation between the contents of the list and the grand jury’s decision. I am unable to conclude that the grand jury was able to exercise an unbiased independent judgment on the remaining eight names on the list. Supportive is the fact that this grand jury was later reconvened to consider indicting an additional member of the sheriff’s staff who had appeared before it. Significantly, his name had been omitted from the prosecutor’s list. On these facts I would agree with the district court that the defendants were not indicted by an unbiased grand jury exercising its independent judgment. Such a situation differs materially from that where the language of a returned indictment coincides with that of a proposed indictment drafted by the prosecutor in jurisdictions which permit the prosecuting attorney to request an indictment.
¶5The majority states that a prosecutor may request an indictment be returned. No Iowa cases are cited for this proposition. The majority also states that the prosecutor is “barred from expressing opinions on the facts and from attempting to influence the grand jury’s action”. I find these positions irreconcilable, as any request would necessarily incorporate factual considerations, and our case law to be supportive of only the latter. See State v. Hall, 235 N.W.2d 702, 712-13 (Iowa 1975); State v. Hansen, 215 N.W.2d 249, 251 (Iowa 1974); Maley v. District Court, 221 Iowa 732, 734, 266 N.W. 815, 817 (1936). Most recently, in State v. Hall, 235 N.W.2d at 712-13, we said: “[The county attorney] should not attempt to improperly influence or sway the deliberations or to induce a result he desires”, as well as noting the obligation of the prosecutor “to present the matter impartially and with no attempt to influence the action of the grand jury”.
¶6The limitations on the role of the prosecutor established by the legislature and this court can best be understood as a means of preserving the independence of the grand jury’s ultimate decision to indict, a condition mandated by the legislature in § 771.6: “Neither the county attorney nor any other officer or person except the grand jury must be present when the question is taken upon the finding of an indictment”. To permit or allow the decision of the grand jury to be improperly influenced by the prosecutor would not only be violative of the underlying purpose of § 771.6, but would render an indictment functionally indistinguishable from a county attorney’s information which may be filed on the prosecutor’s own initiative, a result contrary to the evident intent of the legislature due to the procedural distinctions involved. Compare chapter 769 with chapters 770-773, The Code 1977 (now generally Iowa R.Crim.P. 5 and Iowa R.Crim.P. 3 and 4).
¶7As I feel that a prosecutorial request for an indictment goes beyond proper comment on the legal sufficiency of the evidence before the grand jury and in effect invades the decision making function of the grand jury, I cannot concur in the majority position and, to the extent that that position underlies the majority’s result, I must renew my dissent.
¶8Additionally, I note that I would find adequate prejudice to the defendants to quash the indictments. As stated in State v. Joao, 53 Haw. 226, 229, 491 P.2d 1089, 1091 (1971):
A tendency to prejudice may be presumed when, in presenting cases to the grand jury, the trial court finds that the prosecutor or his deputies have engaged in words or conduct that will invade the province of the grand jury or tend to induce action other than that which the *163jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them.
¶9See also Commonwealth v. Favulli, 352 Mass. 95, 106, 224 N.E.2d 422, 430 (1967). We found a lack of prejudice to be present in State v. Hall, where the defendant had been subsequently found guilty by a jury at trial. Such is not the case here. Given the standard adopted by the majority and the unavailability of grand juror testimony to impeach the indictment, the burden of proof urged by the majority would be virtually impossible to meet. See United States v. DiGrazia, 213 F.Supp. 232, 233, 235 (N.D.Ill.1963); State v. Joao, 53 Haw. at 229, 491 P.2d at 1091; State v. Good, 10 Ariz.App. 556, 559-60, 460 P.2d 662, 665-66 (1969).
¶10As I agree with the trial court that the defendants’ due process right to have charges against them considered by an unbiased and unprejudiced grand jury had been violated, I would affirm.
¶11REYNOLDSON, C. J., joins this dissent.