The New York Grand Jury

             The Grand Juryis a panel of 23 members of the community who sit for a term of four weeks, hear testimony and decide whether there is enough evidence to go forward with felony charges against an accused individual.  Each county has its own grand jury and the empanelled members of the grand jury are pulled from the general jury pool.  In New York City each county has approximately 6 different grand jury panels.  The legal standard used to determine whether to indict a case is by a preponderance of the evidence, or reasonable cause to believe that the accused committed a felony.  In other words, if the grand jury finds that there is reasonable cause to believe that an offense was committed then they must indict.  This is a very different standard than “beyond a reasonable doubt” which most Americans understand is the criterion, but that is for a trial which eventually happens if the case is not dismissed or if the defendant takes a plea deal from the prosecutor’s office. Click here to see the definitions of beyond a reasonable doubt and reasonable cause.  The reasonable cause standard can include the introduction of hearsay evidence which is information gathered from a third party and not actually heard or seen by the witness.  Hearsay is not permitted at a trial.  If you have ever heard of the saying, “A grand jury would indict a ham sandwich,” it is this situation that gave it life and is a quote of former Chief Judge Sol Wacthler in the book The Bonfire of the Vanities by Tom Wolfe. 
            The grand jury chamber is a highly controlled environment with the prosecutor directing of the presentation of the case without a presiding judge. In theory the grand jury is supervised by the court (the judge) but the judges only come into play under limited conditions, for example, when a prosecutor needs permission to remove a case from the grand jury or when the jurors are having a hard time coming to a decision after being advised by the prosecutor.  No one is permitted to enter a grand jury chamber without permission of the prosecutor but the court officers and the court reporter.  Once the grand jury members are counted and a quorum is present, the prosecutor will introduce him or herself and then usually proceed to tell the grand jury what kind of case will be presented, what the charges are and how many witnesses will be heard during that particular session.  Each case has an identifying number and a case can be presented multiple times over the duration of the panel’s term.  The panel hears so many cases that the numbers are vital to keeping track of each case.  When the initial formalities are dispensed the prosecutor proceeds to present the case.  After each witness is heard, the grand jury is given the opportunity to ask its own questions but not directly.  The prosecutor will walk around the room and collect questions from the jurors but will only ask the ones that are “relevant” to the case at hand.  The prosecutor makes that determination and will inform the jurors whether or not a particular question will be asked.  Once the questions are answered to the satisfaction of the grand jury, the witness is excused. The grand jury proceeding is a secret proceeding the accused is not entitled to have access to any of the evidence presented until much later in the criminal process. 
            The person accused of a felony has the right to testifyon his or her on behalf to the grand jury.  The accused is not permitted to know who has already testified and usually the accused has to sign a waiver of immunity to what he or she is about to say.  The accused is, however, able to bring his or her attorney into the grand jury chamber but the attorney is not permitted to speak or advise the accused during the proceeding.  The prosecutor will then allow the accused to tell his or her side of the story after which the prosecutor will begin his or her own questioning.  It is the prosecutor’s goal to get as much information as possible from the accused because it is being recorded by the court reporter.  Any testimony given by the accused can be used further down the line in a possible trial and therefore locks the accused into a specific story and if the accused is claiming a defense, the prosecutor would know what that defense is.  Strategically, testifying can be a boon or a burden depending on whether the testimony is strong enough to sway the grand jury or not.  Each case must be carefully reviewed by an attorney and the accused to determine whether the accused should take the risk. 
            Once the case has been fully presented, the prosecutor will read instructions to the grand jury regarding how it should view the evidence presented and also read the definitions of the charges.  If the accused testified on his or her own behalf, an example of an instruction from the prosecutor will most likely direct the grand jury to not permit itself to be swayed by sympathy for the accused or any witnesses that have been heard.  If the accused testified as to an an alibi the prosecutor will most likely tell the grand jury that they must indict anyway if the prosecutor has presented enough evidence to meet the burden.  Once this has been done the case is then put to the vote and the grand jury can choose to do one of several things: 1) Indict the accused of an offense (or more than one), 2) Direct the prosecutor to file an information with the local criminal court (meaning that the grand jury found that there was enough evidence sufficient to make out a misdemeanor rather than a felony), 3) Direct the district attorney to remove the case to family court, 4) Dismiss the case outright, or 5) report misconduct to the empanelling judge. Click here for the full text of the relevant law.
In order for the jury to indict there must be a quorum present of 16 grand jurors and then at least 12 need to vote to decide whether the prosecutor has presented enough evidence to meet the relevant standard.  A vote in the affirmative is called a true bill and the accused has been indicted.  A vote in the negative will result in the case being dismissed.