Wednesday, December 21, 2011

What's in a Name?

We hear it in every newscast.  We read it in every paper.  A grand jury indicted Sal B. on drug possession charges.  Devon T. was arraigned today on an indictment charging him with murder in the second degree.

What does that even mean?  We know it's serious.  We know something happened.  But what happened?  How did it get to this point?

An indictment is simply a document that notifies the defendant what crimes he is charged with.  It's a piece of paper.  It begins the formal proceedings against a defendant that results in either a plea of guilty or trial.  Without an indictment, the case doesn't move forward.

Selecting a Grand Jury

It starts with selecting grand jurors.  A grand jury is a group of citizens from the county they reside in selected to sit for a period of time (usually a month) and deliberate on cases presented by the prosecuting agencies.

In English, it's a group of people who listen to evidence the prosecution presents and decide if there's enough to charge a person with a crime.

In New York, that grand jury consists of between sixteen and twenty-three people.  Depending on the size of the county, the grand jury can meet once a month or every day of the week.

This is different than a trial jury which is selected by the attorneys for each side.  A grand jury is selected by a judge with help from an assistant district attorney.  Trial jury selection is open to the public along with the trial.  A grand jury's proceedings are closed and secret.  It's a crime for anyone to disclose what happens in the grand jury, unless the witness testifying chooses to discuss it publicly.

How the Grand Jury Works

The prosecutor presents evidence in the form of testimony and physical evidence to the grand jury.  Once that is complete, the prosecutor submits charges for the grand jurors to consider.  The prosecutor is the grand jury's legal advisor in the proceedings.  There isn't a judge in the room.  The defendant isn't there.  There's no defense attorney either.  The prosecutor is required to provide impartial legal guidance to the grand jury.  A prosecutor takes on the role of the judge and defense attorney.

The grand jury considers the charges submitted and decides if the evidence provides reasonable cause that the defendant committed the crime.  The grand jury doesn't need to be unanimous in their vote.  At least twelve grand jurors must vote for either a true bill (indictment) or no bill (dismissal).

The grand jurors can request additional evidence, direct the prosecutor to issue subpoenas, or consider charges the prosecutor did not submit.

Does the Defendant Testify?

The defendant has the right to testify at the grand jury.  This is dangerous, however, because he does not have any discovery at this point.  Therefore, the defendant has no idea what the evidence against him is.  He doesn't know if there is a video of the crime, DNA, fingerprints, recorded phone calls, or who the witnesses are.  Most attorneys advise their clients against testifying in the grand jury for this reason.

I've seen a case where a defendant testified that he was somewhere else when the crime occurred.  We call this an alibi.  After the defendant left the prosecutor submitted a crystal clear video of the defendant burglarizing the store.  The grand jury voted on their own to consider perjury in that case.

The Indictment

If the grand jury votes to indict, the paper indictment is prepared notifying the defendant what he's charged with.  A judge then arraigns the defendant on those charges.  Then, the case moves toward trial.

At the state level, the judge overseeing the case reviews the entire record created in the grand jury.  The judge decides if the prosecutor acted fairly towards the defendant, provided accurate legal instructions, and presented appropriate evidence for the crimes charged.  It's essentially a check on the prosecutor's power over the grand jury proceedings.

This is merely an overview of a complex system that's existed for hundreds of years.  There are too many legal intricacies to discuss in one blog post.  Submit any specific questions you have and our staff will do our best to answer them.


  1. But you don't use a grand jury in EVERY case, do you? I mean do you have to go through that process every time you are considering charging someone with a crime? I know it in PA, it seems as though sometimes they do use a grand jury but most of the time, defendants are just charged. I'd be interested to know if you have to use the grand jury for every crime.

  2. Every felony case is presented to a grand jury. Misdemeanors are not. There's different levels of charges. The police arrest and charge a person initially on what's called a felony complaint. Four things can happen then: 1) charges get dismissed, 2) charges gets reduced to a misdemeanor, 3) defendant pleads guilty before indictment, or 4) the case gets indicted and the defendant is formally charged. There cannot be a trial on only the charges drafted by the police.

    Any felony case must be presented to the grand jury to proceed to trial. A defendant can waive that right, but it rarely happens.

  3. Does the case have to go to a grand jury within a specific amount of time after arrest, or is it open-ended?

  4. A defendant has a right to a speedy trial. Once an arrest happens, the speedy trial clock starts ticking. For felonies, that means the people must have an indictment and inform the court they are ready for trial within six months of the arrest. Otherwise, the case cannot go forward. The trial happens a long time after the first six months. We just have to be ready for it in that time.

    If the defendant is in custody, the case has to be presented to the grand jury within 45 days of the felony hearing. Otherwise, the defendant is released. You can still present it after that, but it must be within that six month period.