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.
What Can The Grand Jury Do?
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 defendants 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 defendants 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.
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