Overview
A state Grand Jury is a constitutional body (N.Y. Const. art. I, § 6) of 16-23 randomly selected citizens of a county, convened by a court for a term to vote on cases presented by the District Attorney. A Grand Jury votes for an indictment against one or more individuals if the evidence before it is legally sufficient to establish that the person committed the offense and provides reasonable cause to believe that the person committed it. At least 12 grand jurors must agree.
Felony prosecutions are often and mostly initiated by the filing of a felony complaint by a police officer. However, to obtain a felony conviction a prosecutor must obtain an indictment from the Grand Jury, unless the accused waives indictment and agrees to be prosecuted on a superior court information.
How it works
Sealed, and often without notice. Grand jury proceedings are secret. No juror, prosecutor or witness may disclose what happens in the room without a court order. A person who has not yet been arraigned on a felony complaint may not know the grand jury is hearing a case against them at all.
A one-sided presentation. Only the prosecutor presents evidence and instructs the jurors on the law. There is no judge in the room, no cross-examination and no defense lawyer arguing. That is the source of the old saying that a prosecutor could get a grand jury to indict a ham sandwich. The saying is not quite true: grand juries do decline to indict ("no-bill"), most often when they hear the other side.
Why speed matters. The right to testify depends on serving written notice on the District Attorney before the indictment is filed (CPL 190.50). Once the grand jury votes, the opportunity is gone. A lawyer should be involved from the day a felony complaint is filed, or as soon as a person learns of an investigation.
A brief history. The grand jury descends from the Assize of Clarendon of 1166, under which twelve men of each hundred reported suspected crimes to the King's judges. It crossed to the American colonies, entered the Fifth Amendment, and in New York is guaranteed by the state Constitution itself.
Your rights (CPL 190.50 and 190.52)
- To testify in your own defense, if you serve written notice before the indictment and sign a waiver of immunity.
- To ask the grand jury, orally or in writing, to call witnesses you name. The grand jury decides whether to call them.
- To have your lawyer in the room while you testify. The lawyer may advise you but may not address the grand jury or object to questions.
- If the District Attorney denies these rights, to move to dismiss the indictment, within 5 days of arraignment on it.
- If the grand jury does not indict, the record is sealed (CPL 160.50).
Results
People v. T.P. (court, year). Explain the college prosecution: the allegation, what was at stake, the decision to testify, the witnesses. The grand jury voted no true bill.
[T.P.'s testimonial, in his words]
Attorney Advertising. Prior results do not guarantee a similar outcome.
FAQ
Can my lawyer accompany me into the Grand Jury room?
Yes. A witness who has signed a waiver of immunity may bring a lawyer into the room. The lawyer can sit with you and advise you, but cannot speak to the grand jurors or take part in the questioning.
How can I testify at the grand jury in my own defense?
Your lawyer serves written notice on the District Attorney before the indictment is filed. You then sign a waiver of immunity and appear on the date set. You can give a statement and must answer the prosecutor's and the grand jurors' questions.
Can I call witnesses?
You can ask the grand jury to call witnesses you name, orally or in writing. You cannot compel it: the grand jury decides whether to hear them.
Why would I not testify or call witnesses?
Because everything you say is under oath, recorded, and can be used against you at trial. A witness can help or hurt. The decision depends on the evidence, on how you will come across, and on what the prosecution already knows, and it should be made with your lawyer after careful preparation.
Can my lawyer object to questions?
No. Your lawyer may advise you, and you may step out to consult, but the lawyer cannot object or address the grand jury. Improper questioning can be raised afterwards in a motion to dismiss the indictment.
Articles
- Grand Jury – Use and Abuse (forthcoming)