In New York State, individuals accused of crimes have a right to testify in the Grand Jury. A Grand Jury must hear all felony matters to decide if there is enough evidence to charge someone with a crime. Felonies are crimes that are punishable by more than one year in prison. In New York State, a person cannot be brought to trial on felony charges, unless the Grand Jury issued an indictment against them.
Below is a detained explanation of how Grand Jury works, what evidence it hears, defendant’s right to testify in the Grand Jury and the oversight judges have over the evidence presented.
Origin of the Grand Jury
The origin of Grand Juries goes back to the year 1166, when King Henry II amended the English law to include Grand Juries.
The Fifth Amendment of the United States Constitution states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Through the Fourteenth Amendment, the due process provision applies to the states. Although not all states use Grand Juries, the vast majority of them do.
The states that do not use Grand Juries instead conduct preliminary hearings. In preliminary hearings, it is the judge that determines whether probable cause to charge someone with a crime exists.
Formation of Grand Jury
In New York, no more than 23 people serve on each Grand Jury. Depending on the County, some juries sit for a week, two weeks, three weeks or four weeks. Longer-term Grand Juries also exist, but instead of meeting every day, the appearances are weekly.
New York Criminal Procedure Law Article 190.20 governs formation of Grand Juries in the State of New York. Grand Jurors are drawn at random from the same pool of jurors as the trial jurors. However, the summons that jurors receive will identify them as a “trial juror” or a “grand jury juror” before they have to report to Court.
Neither the prosecution nor defense are able to exclude any Grand Jurors from the panel. However, each juror must meet the following qualifications.
Requirements for Being on the Grand Jury
In New York, the requirements for being on a Grand Jury are the same as those for a trial jury. Specifically, a person can serve on a jury if they:
- Are over the age of 18;
- Have not been convicted of a felony (having a certificate of relief from disabilities or good conduct allows you to serve);
- Are able to understand and communicate in English; AND
- Reside in the county in which they are serving on the Grand Jury.
Grand Jury Legal Training
Grand Jurors do not possess any specialized legal training. Before the start of their service, they undergo an orientation session. The Grand Jurors also take an oath to carry out their duties faithfully.
Purpose of the Grand Jury
The Grand Jury’s function is to determine if enough legally sufficient evidence exists to charge someone with a crime. The standard that the Grand Jury uses is “reasonable cause to believe.” This is a much lower standard than what a Trial Jury uses (also called “Petit Jury”), which is “beyond a reasonable doubt.” Beyond a reasonable doubt is the highest standard of proof in our legal system. A trial just must find someone guilty beyond a reasonable doubt at trial.
The Grand Jury decides if there is enough evidence to charge someone with a crime based on the evidence and the legal charges. Importantly, the Assistant District Attorneys have a dual function in the Grand Jury. They act as prosecutors and also as the legal advisors to the Grand Jury.
How Does Grand Jury Work
Grand Jury sits Monday to Friday from about 9:45 AM, until there are no other cases left. Depending on the county, that could mean until lunchtime or maybe 9 PM in the busier jurisdictions – like Brooklyn or Bronx for example.
Scheduling Cases for Grand Jury
Grand Jury Wardens are special Court Officers that handle scheduling of matters for each Grand Jury. Wardens do not go into the Grand Jury Room, rather, they have a designated room or desk outside the Grand Jury. Wardens have a daily planner for each jury panel. Specifically, this planner is broken into 15 minute increments of time.
Each morning, Assistant District Attorneys call the wardens or go the Warden desk in person to request a time with the Grand Jury. Oftentimes, the Wardens do not allow scheduling until every witness that the Assistant District Attorney arrives. Wardens book the Assistant District Attorneys into the Grand Jury in 15-minute increments. However, a prosecutor can request more time to present their evidence – up to several hours at a time.
The evidence for one case usually does not all get presented in the same time block. Rather, the prosecutor is able to schedule times with the Grand Jury on any day during their term. Hence, Grand Juries hear dozens of matters each day and during their term. While that may get confusing, jurors can take notes on the evidence and the testimony that they hear.
Who is allowed in the Grand Jury Room
Grand Jury is a secret proceeding. Thus, only certain individuals are allowed to be present. Specifically:
1. Grand Jurors
While Grand Jury consists of no more than 23 people, not every juror needs to be in the room for every minute of the proceedings. At least 16 are needed for the Grand Jury to hear evidence and deliberate. This is called a Quorum. Additionally, as 12 jurors are needed to vote an indictment, at least 12 jurors must be present who have heard all the previously presented evidence.
Certain Grand Jurors hold special positions, such as:
There are no judges in the Grand Jury. Rather, the person that sits up at the Judge’s bench is a Foreperson. Foreperson administers the oath to witnesses who testify in the Grand Jury. A Foreperson also announces whether the Grand Jury decided to vote an indictment, a “no action,” or no True Bill. Additionally, a foreperson also signs the Indictment for each case.
In the event the Foreperson is absent from the Grand Jury room, an Assistant foreperson takes over the Foreperson’s duties.
A Grand Jury secretary keeps track of the cases that the Grand Jury heard, and the jurors that were present or absent for parts of testimony or legal instructions. The secretary keeps a log book of all the cases the Grand Jury heard and their decision on each.
A prosecutor presents evidence and calls the witnesses in the Grand Jury. Sometimes, more that one prosecutor is present in the Grand Jury. That is done either when a junior prosecutor is learning how to present cases to the Grand Jury. Or when two prosecutors are presenting a big case, since both need to be aware of what the testimony was.
3. Court Reporter
A court reporter is present in the Grand Jury to take down a stenographic record of testimony and legal instructions. The record of the proceeding is called Grand Jury Minutes. In the event the Grand Jury indicts a case, a New York State judge will review the Grand Jury minutes to determine if the legal instructions were proper and if the evidence presented was sufficient.
A prosecutor can issue a subpoena for anyone with relevant information to appear before the Grand Jury for testimony. Additionally, a prosecutor can issue a subpoena for documents for the witness to submit, rather than come in to testify in the Grand Jury.
Additionally, the Defense is able to call witnesses to testify in the Grand Jury. However, the Defendant must provide a timely CPL 190.50(5) notice. As far as any other defense witnesses, the prosecutor will provide to the Grand Jury a summary of what the defense witness intends to testify in the Grand Jury to. But ultimately, Grand Jury will decide if they want to hear from the defense witnesses. If they do, the witness will testify in the Grand Jury. If not, the witness will not.
Some witnesses may require the assistance of a certified foreign language interpreter. Interpreters are present during the testimony of a witness who requires the proceedings to be interpreted. In addition to the oath of secrecy, the interpreter also takes an oath to faithfully and accurately interpret the proceedings.
6. Court Clerk
Under Criminal Procedure Law Section 190.25(e), a Court Clerk is permitted to enter the Grand Jury room to assist the Grand Jury with administrative proceedings.
7. Defendant and Defense Counsel When testifying
A defendant, or person under investigation by the Grand Jury has a right to testify in the Grand Jury. However, this right must be asserted by the defense counsel through what’s called a Cross – 190.50(5) Notice (abbreviated as x-190.50 notice).
Requirements of a Cross-190.50 Notice
A Cross 190.50(5) notice must comply with the formal requirements of Criminal Procedure Law Section 190.50(5). Specifically, the notice must be:
- Served on the prosecutor before filing of the Indictment.
- In writing. Frequently, the attorneys write it on the back of their business cards at Arraignment.
- From an attorney and provide an address to which communications regarding scheduling of the Defendant’s testimony may be sent.
Defense Counsel is Present in Advisory Capacity Only
Once the defense counsel serves a x-190.50 notice on the District Attorney’s Office, the prosecution is on notice that the Defendant intends to testify in the Grand Jury. During testimony, Defendant has a right to have their attorney present. However, unlike a trial, Grand Jury is not an adversarial proceeding. Therefore, the attorney is present in an advisory capacity to the Client only.
Hence the defense attorney is unable to make objections during the Grand Jury proceedings. Importantly, neither the Defense Attorney nor the client know exactly what evidence has been presented to the Grand Jury. They are not privy to sit in on testimony of other witnesses in the Grand Jury. Thus, coming in to testify in the Grand Jury on your own behalf is risky, since you do not know what evidence the Grand Jury has heard so far.
Order of Grand Jury Proceedings
Prosecutor’s Opening Remarks
In the very beginning of each case, the prosecutor tells the Grand Jury the case name i.e. People of the State of New York v. Thomas Smith as well as the Grand Jury Number for each case. This is a unique number that will become the Indictment number if the Grand Jury returns a True Bill. The prosecutor then inquires if there is a quorum present. The prosecutor also tells the Jury what type of charges he expects to present at the conclusion of all the testimony.
The secretary logs each case in the logbook and marks which jurors are absent from the room. This is important because the jurors who have not heard all the evidence and legal instruction, will not be able to deliberate on the case.
Each subsequent time that the prosecutor presents evidence on this case, People of the State of New York v. Thomas Smith, he will ask:
- Is there a quorum present?
- Are there 12 or more jurors who have heard the evidence presented in this case on the following dates (listing all the dates the evidence was presented?)
Marshaling of the Evidence Previously Presented to the Grand Jury
The prosecutor will also ask if the jurors would like a summary of the testimony that was presented in the case before to refresh their recollection. This is called the marshaling of the evidence. The prosecutor’s marshaling of the evidence is not evidence in itself, rather it is the prosecutor’s recollection of the evidence that the Grand Jury previously heard on this case.
Presentation of Evidence
After giving the opening remarks, the prosecutor will call the first witness. The prosecutor will call any witness who has relevant information. While the prosecutor has a low burden in the Grand Jury of “reasonable cause to believe,” the evidence that the prosecutor is presenting has to be sufficient for the elements of the charge that will be presented at the end of the case.
In the Grand Jury, the prosecutor will ask the witness questions to guide the witness’ testimony. At the end of the witness’ testimony, the Grand Jurors themselves are able to ask the witnesses questions. As the prosecutor is also the legal advisor, the prosecutor is able to decline to pose some of they Grand Juror’s questions. That occurs if the questions are not legally relevant or otherwise outside the purview of the Grand Jury’s inquiry.
Order of testimony usually depends on the witness’ availability. The Grand Jury, however is able to recall witnesses back, after they have already testified. There is no set number of witnesses that the prosecutor has to present to the Grand Jury to meet the burden of proof. Under New York Law, one person’s testimony is enough, so long as it is credible and legally sufficient.
Immunity for Grand Jury Testimony
Each witness that testifies before a New York Grand Jury gets automatically gets immunity. Meaning, they can’t be prosecuted for whatever wrongful conduct they themselves engaged in. Defendants, however, sign what’s called a waiver of immunity, that takes this protection away.
Once Defendant gives proper and timely CPL 190.50(5) notice to the prosecutor, the prosecutor must let the Defendant testify in the Grand Jury. Importantly, while the right to testify in the Grand Jury belongs to the defendant, the defense attorney can make that decision without consulting the client.
Defendant’s testimony usually happens after the testimony of all the other witnesses has concluded. If the District Attorney fails to give the Defendant the opportunity to testify in the Grand Jury, the Judge will dismiss the Indictment. Then, the District Attorney will once again have to present the case to another Grand Jury.
Legal Instruction and Charging
At the conclusion of all the testimony, the prosecutor will present the legal charges to the Grand Jury. The Grand Jury will then deliberate in private and then call the prosecutor back to announce their decision.
Grand Jury has the power by a vote of 12 or more, to vote an Indictment, also known as a “True Bill.” Also, Grand Jury can vote a dismissal by a vote of 12 of more. When there are not enough votes for an Indictment or a Dismissal, the Grand Jury will vote a “no action.”
Grand Jury’s Decision
If the Grand Jury returns a True Bill, the prosecutor will start working on drafting the indictment. This will become the new charging document in the criminal case.
If the Grand Jury dismisses the case, the case is over. Unless, down the road the prosecutor obtains additional evidence that significantly improves the case. In that situation, the prosecutor can ask the Judge for permission to represent the case to another Grand Jury based on new evidence.
When the Grand Jury returns a “no action” on any of the charges, that means the Grand Jury did not have enough votes for an Indictment or a dismissal. If the Grand Jury returns a “no action” on any of the charges, the prosecutor can ask what additional information the Grand Jury needs. The Grand Jury is able to request additional witnesses, further legal instruction or more evidence.
A “no action” will allow the prosecutor to resubmit the charges to another Grand Jury later. However, this will require a Judge’s permission.
Grand Jury Secrecy
Grand Jury is a secret proceeding. Therefore, the evidence that the Grand Jury hears as well as the Grand Jury deliberations cannot be disclosed. However, the witnesses that testify in the Grand Jury are able to discuss their testimony if they so chose.
Judicial Review of Grand Jury
In New York State Court, the Judge will review a copy of the Grand Jury minutes after the Defendant’s Arraignment. This judicial review is done to ensure that the evidence was legally sufficient and the legal instruction was proper. A defense attorney can make a motion for dismissal of the Indictment or some of the charges based on an issue with the Grand Jury proceedings.
Unlike New York State court practice, there is no review of the Grand Jury minutes or ability to make motions for dismissal based on insufficiency of evidence in federal Court. The only exception is a motion to dismiss for Grand Jury bias or improper impanelment, which is called a Costello motion.
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