The Grand Jury Process: A Primer

As a special to The Vault Law Blog, and in light of Plaxico Burress’ appearance today in front of a Manhattan Grand Jury, here we have a primer on the grand jury process from criminal defense attorney Jeremy Saland (see below for full bio):

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many attorneys do not. The following entry will address some of what happens in this "secret proceeding."

What is the Grand Jury?

The Grand Jury in New York State consists of a group of people no different than you or me. Old and young. Doctors and construction workers. Men and women. Black, white and every shade in between. Although in other, smaller jurisdictions prosecutors need to convene a Grand Jury, at any given time in New York City there are multiple Grand Juries sitting. In fact, Manhattan often has at least three Grand Juries sitting in the morning followed by three in the afternoon, with at least one sitting all day. This does not include Grand Juries convened by the Office of the Special Narcotics Prosecutor. Grand Juries hear all charged felonies from Assault and Grand Larceny to Identity Theft and Mr. Burress' Criminal Possession of a Weapon.

The Grand Jury consists of up to 23 people. A quorum of 16 Grand Jurors is required before evidence can be heard. Regardless of whether there are sixteen or twenty three Grand Jurors present, twelve Grand Jurors are always need to vote an indictment.

Burden of Proof

A determination by the Grand Jury to vote a "true bill" or indict a defendant is not a finding of guilt. A guilty or not guilty verdict can only be rendered at trial. Instead, the Grand Jury must determine whether there is "reasonable cause to believe" that the accused committed the particular felony crime. Unlike "beyond a reasonable doubt" at trial, "reasonable cause to believe" can also be viewed as whether or not a reasonable person believes that it is probablethat the accused is guilty of the crime charged.

Secrecy of the Grand Jury

Prosecutors cannot share with the public what happened in the Grand Jury (who testified, what was said, the result of the deliberations, etc.). In fact, divulging such information has criminal ramifications. However, a witness may reveal what he or she testified about, but not the names of other witnesses or details of their testimony.

Role of the Prosecutor

There is no judge in the Grand Jury. A prosecutor acts as the judge. That means he or she chooses what evidence is admissible and instructs the Grand Jury on the law. Obviously, the law gives the prosecution ample room to decide how and what to present to the Grand Jury. In fact, prosecutors often provide significantly less evidence to a Grand Jury than they would present at trial. A two day Grand Jury proceeding may become a two week trial. However, the prosecutor’s latitude in interpreting the law is not a license to abuse the rules of evidence.

A criminal defense attorney can protest or challenge the prosecution, but since it is a secret proceeding, it is not likely he or she will know what was presented until after a judge reviews the minutes of the Grand Jury proceeding. That being said, a judge is available for criminal defense attorneys and prosecutors to meet with in the event an issue presents itself during the proceeding.

One unique thing about the Grand Jury process in Manhattan is that the District Attorney's Office pursues cases through ‘vertical prosecution.’ In other words, the prosecutor who picks up the case from its inception is the same prosecutor who presents the case to the Grand Jury and ultimately—if necessary—at trial. This practice is different from other New York City offices where one prosecutor may draft the initial case, another one presents it to the Grand Jury and a third prosecutor handles the trial.

Does the Accused Have the Right to Testify?

In New York State, a defendant has a right to testify before the Grand Jury. In fact, if the prosecution violates this right and presents the case to the Grand Jury, a judge may dismiss the indictment and require that the prosecution re-present the case to the Grand Jury to allow the defendant to testify. More often than not, however, defendants do not testify before the Grand Jury.

What are the Benefits and Drawbacks to Testifying?

It is important to note that if the accused testifies before the Grand Jury in New York (as Plaxico Burress did today), his or her criminal defense attorney will be present, but unable to advise or speak during the proceeding. If an issue arises, the criminal defense attorney can step out with his client or the prosecutor.

The benefits of testifying can be enormous. However, with these possible benefits come tremendous risks. While the accused may convince the Grand Jury that the incident did not occur as portrayed by the prosecution (thereby getting the Grand Jury to vote "no true bill" or "drop" the case in a sense), the accused will also lock himself or herself into specific testimony. If it turns out that the case goes to trial on a later date, then the prosecution potentially knows the accused's defense because he or she testified. If the accused changes his or her testimony later, not only can the prosecutor cross examine the defendant at trial, but the prosecution may also charge the defendant with Perjury.

What Happens After Testimony

After a witness testifies, the Grand Jury may ask questions. In New York, that often occurs in a similar fashion as in a classroom. A Grand Juror raises his or her hand and the prosecutor calls on him or her. While it varies from Grand Jury to Grand Jury, what often occurs is that the Grand Juror whispers the question to the prosecutor who can ask the question, re-word the question or refuse to ask the question because it is not relevant or beyond the scope of the Grand Jury. Remember, this proceeding is not a trial and is not the place to litigate all the issues. Some issues that would understandably interest a Grand Juror are issues that will be resolved after a criminal defense attorney files motions.

After questions are addressed, the prosecutor instructs the Grand Jury on the law, asks the Grand Jury to vote and then steps our to permit them to deliberate.

What Happens After the Grand Jury Deliberates

A Grand Jury can vote to indict or not. If the case is not indicted, it is likely that it will be "dismissed" or "dropped."  Alternatively, the prosecution may be able to proceed on a misdemeanor. If a defendant is indicted, however, the case is adjourned from the Criminal Court to the Supreme Court and the defendant is "officially" charged with a felony after the prosecution files the indictment. All felonies are handled in the Supreme Court. When the defendant arrives in Supreme Court, he or she is arraigned once again and advised of the felony charges. A prosecutor can ask for a change in bail conditions and a criminal defense attorney has the ability to fight that bail application and request a motion schedule to file papers challenging the Grand Jury proceeding, the basis for the arrest, statements allegedly made by the defendant, the identification of the defendant and the recovery of property from the defendant. There are other motions that can be made, but each case requires an analysis as to which particular motion that is necessary.

Jeremy Saland is criminal defense attorney and a founding partner in the Manhattan law firm of Crotty Saland, LLP. Mr. Saland has successfully represented clients accused of multi-million dollar tax fraud schemes to violent street level offenses. Mr. Saland’s analysis and commentary on legal issues has been sought out by a wide range of media outlets including the Associated Press, Sports Illustrated Online and the AM New York. Presently the treasurer of the Small Law Firm Committee of the New York City Bar Association, Mr. Saland served as an Assistant District Attorney under Robert Morgenthau in Manhattan for seven years. As a prosecutor, Mr. Saland worked in both the Trial Division and was one of the first assistant district attorneys assigned to the Identity Theft Unit upon that unit’s creation. As a prosecutor, Mr. Saland had many notable prosecutions including a multi-million dollar extortion of an NBA All Star, a fraudulent international professional graduate school test-taking ring, a million dollar online “pump and dump” scheme, and even a case of a man who kept a tiger in his Harlem apartment.