How a Grand Jury Actually Works

This post is a little late to the party, but I thought it necessary to explain how a grand jury actually works in New York State with all that was written and reported over the last few months.

The grand jury consists of twenty-three jurors, who are citizens in the county they are called to serve in. They are asked to serve for a period of time, usually a month. The number of times they meet per month varies by the size of the county. In New York City, the grand juries will meet twenty times during their term. In small counties, they might meet four times.

In simple terms, every felony must be presented to a grand jury in New York State, unless the defendant pleads guilty prior to the presentation. The grand jury has the power to indict a person (formally accuse the person of a crime) or file a no bill (dismiss the charges). Twelve of the grand jurors must vote to indict or twelve must vote to dismiss. If you do the math, a majority is needed to do either action.

The grand jury may vote to indict a person if there is reasonable cause to believe the person committed an offense. That is significantly less than the standard at trial a jury must follow which allows the jury to convict only if they find the person guilty beyond a reasonable doubt. Due to this, many cases will pass the grand jury stage, but fail at trial.

There are really two types of cases a prosecutor presents to the grand jury. Most often we present cases where the police have investigated a crime and arrested a suspect (We'll call these "charged crimes"). Probably once a year in a large jurisdiction, each prosecutor presents a case without charges filed and uses the grand jury as the investigating body (We'll call these "uncharged crimes").

The difference? The charged crimes are usually fully investigated or close to it. The grand jury is a safeguard to decide if there is enough evidence to proceed to trial. The uncharged crimes are usually not fully investigated and require the power that only a grand jury can provide. A prosecutor usually has an idea that a crime occurred and a possible suspect at this point, but is never sure of where the proof will actually lead.

A grand jury can issue subpoenas, demanding to hear testimony or see documents. The police can merely request. If a person refuses to talk to the police or the prosecutors or provide requested evidence, a grand jury is how the prosecutor will force the person to testify or turn over the evidence. Many times I have had witnesses refuse to talk to anyone, but I obtained information they were an eyewitness or an earwitness (heard a confession). This required me to present the case to a grand jury and force the potential witness to testify. Granted, the grand jury is the last step in the investigative process because once the grand jury issues subpoenas the secret investigation no longer exists. We try to do everything we can without using the grand jury's investigative power, but sometimes cases require it.

Everyone is sworn to secrecy concerning the grand jury proceedings, except for the testifying witness. This is meant to protect the witness' privacy and alleviate pressure. Once the testimony is presented, the prosecutor then charges a grand jury by reading the applicable penal law violations and leaves to let the grand jury decide. The grand jury can request to consider charges the prosecutor does not submit, but the request must be based on evidence. If a grand juror wants to consider murder in the first degree even if the defendant is sixteen, the prosecutor cannot submit the charges because an element of murder first is the defendant be nineteen or over.

The issue arises as to a prosecutor's ethical obligations. If the grand jury investigation does not yield the expected evidence should the case be prosecuted further? To put it another way, if the prosecutor feels they cannot prove the case beyond a reasonable doubt at trial but is confident there is enough evidence to satisfy the lower grand jury standard, should they indict it or ask to file a no bill? Should the victim get their day in court in an unproveable case? Isn't that how innocent people get convicted because the prosecutor just takes a chance?

My office has a policy that we do not indict a case unless we can prove it beyond a reasonable doubt at trial. This is to guard against wrongful convictions. My District Attorney gets a lot of negative publicity for this stance because they claim he only takes the "winners" and "slam dunks." Even with his policy, we still lose some cases after trial. There are no winners or slam dunks before a jury. If it is a close call as to the proof at trial, we will let the grand jury decide and then move the case to trial.

The grand jury is a screening tool for the prosecutor just as much as it is a procedural safeguard for the defendant.

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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.

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Path of a Criminal Case

It is a complex legal system, especially in New York State. I hope to shed some light on how a case moves from arrest to trial.

1) Someone calls the police. This is probably the most important event. A single individual possesses the power to send hundreds of years of legal action in motion with just a phone call. The call usually consists of a description of the crime and a description of the suspect.

2) The police investigate. The police speak to the 911 caller, the victim, and any other eyewitnesses. They also begin to gather evidence related to the crime. Based on all this information, they attempt to arrest the individual responsible.

3) The arrest. The police arrest a suspect based on probable cause. This means that there is sufficient evidence to believe the suspect committed the crime. After the arrest, the police attempt to obtain a statement from the suspect and have the witnesses identify the suspect in a line-up or some other identification proceeding.

4) The police file charges. This begins the formal court proceedings and the defendant is brought in front of a judge and arraigned on a felony complaint based on the charges filed by the police. This is usually the first time the district attorney's office becomes involved in the proceedings.

5) The felony hearing. The district attorney's office must put witnesses on the stand to show the court credible evidence that the suspect committed the crime. This usually consists of the witnesses to the crime testifying in open court and identifying the defendant as the person who committed it. It is a procedural safeguard to ensure a person does not remain in jail for more than a few days without the court seeing some evidence against them.

6) Grand jury. If the court decides there is enough evidence to move forward, the case is held for action of the grand jury. This means the district attorney's office is required to present evidence to a grand jury. The grand jury is a secret proceeding and the grand jurors decide what crimes the defendant should be charged with based on advice from the district attorney's office. This usually varies widely from the initial crimes the police arrest the defendant on. The grand jury has the power to dismiss a case, ask for more evidence, or vote on any charge not submitted to them. Plea negotiations are taking place before the case is presented to a grand jury in an attempt to resolve it prior to an indictment.

7) The superior court arraignment. After a defendant is indicted by a grand jury, he is brought in front of a supreme court judge and arraigned on the criminal charges in the indictment.

8) Pre-trial hearings. The case is set down for pre-trial hearings. These hearings are held in front of a judge who determines whether the police acted appropriately in searching the defendant, obtaining a defendant's statement, or conducting an identification procedure, among other issues.

9) The trial. The case is tried in front of a jury. The prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt of all the crimes charged in the indictment. If the jury is satisfied with the evidence, they can find the defendant guilty. If not, they can find the defendant not guilty.

10) The appeal. Every defendant is allowed an appeal for a conviction as a matter of right to the appellate division in New York State. Subsequent appeals to higher courts are discretionary.

A defendant can plead guilty at any stage of the proceeding after a felony hearing is held or waived. There is legal criteria surrounding the plea I will save for another post. Does this help you understand the court system better? What else would you like to know about it?

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