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What are grand jury proceedings?

All felony cases in New York State: A Primer


All felony cases in New York State must be prosecuted by a grand jury indictment, with the defendant being represented by a qualified New York criminal lawyer. The only exception is if the defendant, the defense, and the court agree that the defendant is going to plea to a Superior Court Information (“SCI”.) The grand jury is filled with between 16 and 23 people who are supposed to make up a cross section of the community. At least 12 people on the grand jury must decide to take some action.

Grand Jury Actions

  • Return an indictment when there is reasonable cause to believe the individual committed an offense.
  • Direct the district attorney to file a prosecutors information in criminal court.
  • Direct the district attorney to request removal of the matter to family court.
  • Dismiss the charges.
  • Submit a grand jury report.

In order for the grand jury to return an indictment, the evidence must establish a legally sufficient case. The test is whether the evidence that is presented to the grand jury if unexplained and un-contraverted would warrant a conviction by a trial jury. Unlike other adversarial proceedings in the criminal justice system, the defense attorney has no role at the grand jury. The legal advisers to the grand jury are the court and the assistant district attorney. The assistant district attorney has an obligation to fairly present the evidence and instruct the grand jurors on the law.

Defenses in the Grand Jury

Grand jurors need to be instructed on exculpatory defenses which are defenses that would result in the finding of no criminal liability. There is no requirement that they be instructed on mitigating defenses which only reduce the gravity of the offense committed.

Witnesses in the Grand Jury

Any witness who provides the grand jury with evidence is given testimonial and transactional immunity under CPL 190.40(2). This is to encourage witnesses to speak to the grand jury without fear of legal repercussions. However, if the defendant elects to testify at the grand jury, the assistant district attorney will require that he or she sign a waiver of immunity. The defendant must attest to and sign the waiver in the grand jury room.

Defendant Testifying in the Grand Jury

If the criminal defendant decides to testify, his or her NY criminal defense attorney will be present with them in the grand jury room. However, in New York, the criminal defense lawyer’s role will be limited to being available to answer any questions the defendant may have. The defendant has the right to give the grand jurors a narrative on what happened on the night in question. Once the defendant is finished with his narrative, the assistant district attorney can ask questions. The assistant district attorney will attempt to limit the narrative to the date in question, whereas it is usually in the defendant’s best interest to give a narrative that includes testimony about his or her background (family, work history, community ties, etc). If the assistant district attorney attempts to limit the defendant’s narrative to a point in which it curtails their right to make a statement to the grand jurors, then defense counsel should ask that the assistant district attorney leave the grand jury room and obtain a private ruling from the grand jury judge.

Defendant Witnesses Testifying in the Grand Jury

Whether the defendant chooses to testify before the grand jury or not, in New York a criminal lawyer can ask the grand jury to subpoena certain witnesses. Defense counsel can write a letter to the foreperson of the grand jury giving then names and addresses of the witness and the importance of their testimony It is up to the grand jury to decide whether to call the witnesses or not. The assistant district attorney may require that they sign a waiver of immunity.

Understanding the Grand Jury Process

There are two ways that our criminal justice system determines if there’s enough evidence to bring someone to trial: a preliminary hearing or a grand jury. While a grand jury hearing is a part of the criminal justice process, it’s unlike most other types of court proceedings. The people involved in the process differ from a traditional trial and the purpose of the hearing also sets it apart. Understanding how this process works is important, because some states allow the grand jury hearing to take the place of the preliminary hearing.

Differences in a Grand Jury Hearing

When a grand jury hearing is convened, even those present in the courtroom differs from those in a preliminary hearing. The defense attorney, as well as the judge, are excluded from this hearing, which means this proceeding doesn’t involve the adversarial confrontation between defense and prosecutor. This is simply an opportunity for the prosecution to show that there’s enough evidence to go to trial.

The defendant will be called to testify, but the defense attorney will not be permitted to attend the hearing. In some cases, he may be permitted to wait outside of the courtroom. The prosecutor will question the defendant as he will question witnesses as a means of presenting his case. There will also be a court reporter present in the hearing. It will be the court reporter’s job to record everything that happens in the courtroom, which will then become a part of the trial record.

The evidence is presented to the grand jury, which is larger than a traditional jury. The jury at trial will consist of 6 to 12 jurors, but a grand jury can consist of anywhere between 16 to 23 jurors. Unlike traditional jury duty, grand jury members are asked to serve over a span of several months, although they may only serve on the grand jury for a few days out of each month.

Conduct of a Grand Jury Hearing

The grand jury hearing is somewhat more informal than a normal court proceeding, because a judge isn’t present to keep order. Instead, the prosecutor will conduct the hearing. He will begin by explaining the laws that pertain to the case, so jurors will understand the context of the evidence being presented. They will be asked to review more evidence than that which will be presented at trial, because the rules for evidence are a little more relaxed in a grand jury hearing.

Additionally, the proceeding is conducted in secret and jurors are prohibited from discussing the case outside of the courtroom. One reason for this is that it encourages witnesses testifying before the grand jury to speak openly about the facts of the case. Otherwise, they may feel intimidated or worry about retaliation from the defendant, which means they will be more reluctant to tell the truth.

Another reason the grand jury hearing is conducted in privacy is to protect the defendant. Often, grand jury hearings involve sensitive criminal matters, which might destroy a defendant’s reputation. The privacy of a grand jury hearing will prevent this and protect defendants in cases where there is insufficient evidence to move forward. If the prosecution can’t take the case to trial, it’s better to avoid a more public display of the case.

The Power of the Grand Jury

Unlike a traditional jury, the grand jury doesn’t have to decide unanimously one way or the other. Instead, the majority must agree that the evidence is substantial enough to warrant a criminal proceeding. The majority varies from state to state, but generally consists of either 2/3 or 3/4 of the jurors. If the majority are in agreement, an indictment may be filed.

Even when the grand jury doesn’t vote to indict, the prosecutor still has the authority to file charges. Although the decision is at the prosecutor’s discretion, he will often abide by the grand jury’s ruling. The grand jury hearing serves as a practice run for the prosecutor to determine the strength of his case, so, if he can’t convince the grand jury in a less formal setting, a real trial may be even more challenging. If the prosecutor still feels he can put on a strong case, he may still move forward with the indictment.

Can a Polygraph Test Be Used in Criminal Proceedings

It’s a common story for those who are arrested and accused of crimes. They sit in an interrogation or interview with police detectives and hear about lie detector tests. Officers typically use these polygraph tests as a sort of bait to get defendants to confess to crimes. While they make a mighty trick, these tests are almost never admissible in criminal court proceedings. That doesn’t mean that these tests are useless, though. They are often used in various ways during the course of an investigation, and those who face criminal charges should consider calling a lawyer before giving any statement or agreeing to take one of these tests.

Supreme Court Jurisprudence on Polygraph Tests

The Supreme Court of the United States didn’t take up the issue of polygraph tests until 1998. At that point, defense lawyers had been using those tests to put pressure on prosecutors, while police had been using the tests to trick defendants into confessing to crimes. Many wanted to use the tests as evidence in court, and the Supreme Court was asked to weigh in on whether the military’s outright ban on polygraph tests as evidence was a violation of the Sixth Amendment rights of defendants. In United States v. Scheffer, the Supreme Court ruled that the military’s rule on lie detectors did not violate the Sixth Amendment. The Supreme Court noted in its ruling the inconsistency and unreliability of these tests, putting a major dent in their usage in courts around the country.

Treatment of Polygraph Tests in State Courts

Very technically, each state gets to make its own determination on whether to allow these tests into evidence. The issue is truly left up to judges. The Supreme Court has held that judges do not have to admit these tests, and in the vast majority of cases today, judges will not allow these tests into evidence. They are never allowed into evidence to prove the guilt or innocence of the accused.

Unreliability of Polygraph Tests

Lie detectors tests work in a simple way. While they have no ability to detect whether a person is lying or not, they do have the ability to detect changes in the way the body reacts when a question is asked and an answer is given. Research suggests that the body gives off a different, stressful response when a person tells a lie. The problem with this, of course, is that the test is open to error and manipulation. If it is only measuring changes in physiological indicators, then the test can get things wrong. A spike in a person’s blood pressure might mean he or she is lying, but it could mean something else entirely. Judges have found, then, that the polygraph is an ineffective means of proving what it claims to prove.

Beyond that, science has shown recently that the body’s response to telling a lie is not much different from the body’s response when it is highly nervous. This means that when people are nervous as they take the tests, as they often are, the results might be skewed when they tell a lie and when they tell the truth. If the test relies heavily on a person having baseline physiological levels that change with a lie, the test can be wrong when a person behaves in a nervous way as the question is asked. Overall, the unreliability of the tests makes them unfit for admission into evidence in criminal proceedings.

Relevance of Lie Detector Tests

If they aren’t going to be allowed into evidence, why should any criminal defendant be aware of polygraph tests? It’s because they can be used by both sides in ways that can alter the outcome of the proceedings. Police investigators will often threaten defendants, telling them that they will have to take a lie detector test. In some high profile cases, officers have been found manipulating the results of the test to convince the suspect that he or she is going to be found guilty. The goal in these cases is usually to pressure a person into giving a confession.

From the defense perspective, a clean polygraph test can be used as leverage in getting the state to drop criminal charges in some instances. Every case is different, though, so it is critical to have the help of an attorney when the question of a lie detector test comes up. Good lawyers understand how to help their clients when the pressure is on.

Rules of Evidence for Grand Jury Proceedings in New York

Except as otherwise provided, the provisions with respect to criminal proceedings in general, are also applicable to grand jury proceedings. A report, or else a copy of a report made by a public servant who’s a physicist, chemist, coroner or medical examiner, firearms identification expert, examiner of questioned documents, fingerprint technician, or else an expert or technician in some other comparable scientific or professional field that concerns the results of an examination, comparison or even a test performed by them in connection with a case that’s the subject of a grand jury proceeding, is allowed to, when certified by said person as a report made by them or as a copy, be received in the grand jury proceeding as evidence of the facts.

When the electronic transmission of a certified report, or certified copy of a report, or a sworn statement or copy results in a written document, said written document can be received in the grand jury proceeding provided that a transmittal memorandum completed by the person sending this report contains a certification that assures the report hasn’t been altered, as well as a description of the report specifying the number of pages. The person who receives the electronically transmitted document must certify that the document and transmittal memorandum were received, and also, a certified report or a certified copy or sworn statement or sworn copy is filed with the court within twenty days after the arraignment on the indictment. Where the written document is a sworn statement or sworn copy, this sworn statement or sworn copy is also provided to the defendant or their counsel within twenty days after arraignment on the indictment.

A written or oral statement, under oath, by a person attesting to one or more of the following can be received in the grand jury proceeding as evidence of the facts: the person’s ownership or lawful custody of, or license to occupy premises, and of the defendant’s lack of license or even privilege to enter or remain there. The person’s ownership of property, the nature as well as monetary amount of any damage and the defendant’s lack of right to damage or else tamper with the property. The person’s ownership, lawful custody of, or license to possess property, including a car or other vehicle, its value and the defendant’s lack of superior or else equal right to the possession of it. The person’s ownership of a vehicle and the absence of their consent to the defendant’s taking, operating, exercising control over or using it. The person’s qualifications as a dealer or other expert in appraising or even evaluating a particular type of property, their expert opinion as to the value of an item or items of property, and the basis for their opinion. The person’s identity as an ostensible maker, drafter, drawer, endorser or other signator of a written instrument and its falsity in the meaning of the penal law. And lastly, the person’s ownership of, or possessory right in, a credit card account number or else debit card account number, and the defendant’s lack of superior or equal right to use or possession of this. Provided, of course, that no statement will be admitted when an adversarial examination of this person has been previously ordered, unless a transcript of the examination is admitted.

Operation of the Grand Jury in New York

The proceedings of a grand jury aren’t valid unless at least sixteen of its members are present. An indictment’s finding, a direction to file a prosecutor’s information, a decision to submit a grand jury report, and really every other affirmative official action or decision actually requires at least twelve members to concur. The foreman or any other grand juror can administer an oath to a witness who’s appearing before the grand jury. Also, during the deliberations and voting of a grand jury, only the grand jurors are allowed to be present in the grand jury room. During other proceedings, the following people, in addition of course to witnesses, may also be present: the DA, a clerk or other public servant who’s been authorized to assist the grand jury in the administrative conduct of the proceedings, a stenographer who’s been authorized to record the proceedings of the grand jury, and an interpreter. On the request of the grand jury, the prosecutor needs to provide an interpreter to interpret the testimony of any witness who doesn’t speak English well enough to be understood. This interpreter must, if they haven’t before taken the constitutional oath of office, first take an oath in front of the grand jury that they’ll faithfully interpret the testimony of the witness and that they’ll keep secret all matters before the grand jury within their knowledge.

A Public Servant Who’s Holding a Witness in Custody

When a person being held in official custody’s a witness before a grand jury, a public servant who’s been assigned to guard them during their grand jury appearance can accompany them in the grand jury room. Said public servant must, if they haven’t previously taken the constitutional oath of office, first take an oath in front of the grand jury that they will keep secret all matters in their knowledge.

An Attorney Representing a Witness While that Witness is Present

As for a social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness twelve years old or younger who’s called to give evidence in a grand jury proceeding that concerns a crime defined in the penal law provided that the district attorney consents, that support person must not provide the witness with an answer to any question, or else otherwise participate in the proceeding, and must first take an oath in front of the grand jury that they will keep secret all of the matters before the grand jury in their knowledge.

On the request of a deaf or hearing-impaired grand juror, the prosecutor must provide a sign language interpreter for said juror. This interpreter must be present during all of the proceedings of the grand jury that the deaf or hearing-impaired grand juror attends, including deliberation and voting. The interpreter must, if they haven’t previously taken the constitutional oath of office, first take an oath in front of the grand jury that they’ll faithfully interpret the testimony of the witnesses and the statements of the prosecutor, judge, and grand jurors. That they’ll keep secret all of the matters before said grand jury in their knowledge, and won’t seek to influence the deliberations and voting of the grand jury.

Formation and Organization of the Grand Jury

The mode of selecting grand jurors and drawing/impaneling grand juries is governed by the judiciary law. Neither the grand jury panel nor a grand juror can be challenged, but the court is allowed at any time before a grand jury is sworn to discharge the panel and instead summon another panel if it finds the original panel doesn’t conform to the requirements of the judiciary law. They can also, at any time after a grand juror is drawn, refuse to swear them, or discharge them after they’ve been sworn, on finding that they’re disqualified from service or incapable of performing their duties because of either bias or prejudice, or that they’re guilty of misconduct in the performance of their duties in a way that impairs the functioning of the grand jury. After a grand jury’s been impaneled, the court needs to appoint one of the grand jurors as foreman and another one to act as foreman during any absence or disability. The grand jurors must also appoint one of themselves as secretary to keep records about the conduct of the grand jury`s business. The grand jurors must be sworn by the court. The oath can be in any form that requires the grand jurors to perform their duties faithfully. After a grand jury has been sworn, the court must deliver to each grand juror a printed copy of all the provisions, and the court can also give the grand jurors oral and/or written instructions relating to the proper performance of their duties as deemed necessary. If two or more grand juries are impaneled at the same court term, the court is allowed to transfer grand jurors from one panel to another, and any transferred grand juror is deemed to have been sworn as a member of the panel they’ve been transferred to

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