#ABKLaw BLOG by Michael Jaccarino:  What exactly is a New York State Grand Jury?

Most people who watch TV or follow the news are familiar with a petit jury. This kind of jury is usually composed of 12 people and their job is to determine at trial whether the evidence presented proves beyond a reasonable doubt that a defendant is guilty. A judge presides over the trial, the prosecutor presents evidence and calls witnesses, there is a defense attorney present who cross examines the prosecutors’ witnesses, and the defendant is present. A petit jury hears opening statements, testimony, summations, and then they deliberate and reach a verdict. A grand jury, on the other hand, is a completely different animal.

A grand jury, at least in New York, is composed of anywhere between 16 to 23 jurors. They hear testimony and if 12 or more of them agree that a crime has been committed, they return an indictment. An indictment is a fancy word for accusation. Once a person is indicted, the case then proceeds to trial. In many states, including New York, you usually cannot proceed to trial on a felony complaint unless you have either been indicted. So, it is a critical part of the process. There is no judge in the grand jury. There is no defense attorney. And the defendant is not present unless he is testifying. The way the process works is the prosecutor ask the grand jury to consider charging a particular individual with whatever crime the prosecutor thinks the person committed. The prosecutor calls witnesses who establish that the defendant committed the crime that the grand jury is considering.

To summarize:

1. A grand jury is a group of regular citizens who decide whether or not there is enough evidence to put a defendant on trial for a crime. The reason for it is that in the past, governments could harass their enemies by putting them on trial for crimes even if they were completely innocent. This process dates back to the Assize of Clarendon (1166) when King Henry II changed English law to include grand juries. 
2. Our Federal Constitution requires that one may not be put on trial without “probable cause” (good reason) to believe he or she could be guilty. New York and the federal courts use the grand jury. If the grand jury finds sufficient evidence for probable cause, it gives a written statement of the charges against the defendant.
3. A “petit jury”, by comparison, listens to evidence offered during a trial and returns a verdict of guilt or innocence. It dates back to the reign of King Henry III (1216-1272).

What laws authorize Grand Juries? 

4. Under the Fifth Amendment of the U.S. Constitution, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger”. 
5. While the Fifth Amendment guarantee of prosecution by grand jury indictment is a due process requirement that binds the states under the Fourteenth Amendment, States are free to use a preliminary hearing instead where a judge determines whether probable cause exists or not. 6. Forty-eight (48) States, including New York, utilize grand juries to establish evidence of probable cause.

What unlawful activities do Grand Juries review? 

6. In some states, grand juries investigate only criminal activity submitted to them by a prosecutor or a court. In others, grand juries, on their own, can investigate any activity that may have violated criminal laws within their venue, usually the county in which they sit. In still others, grand juries investigate specific varieties of criminal activity conducted over broad geographical areas; these are known as “special grand juries”.
7. For the most part, state grand juries typically consider felony crimes such as homicide, sexual abuse, theft, and drug offenses, the legal and factual aspects of which are usually simple and straightforward and familiar to jurors from their personal knowledge. 
8. New York Constitution, Article I, § 6 provides, “No person shall be held to answer for capital or otherwise infamous crime (except in cases of impeachment, [certain military offences], and in cases of petit larceny…), unless on indictment of grand jury,…”
9. The NY Criminal Procedure Law § 190.55 expands the constitutional requirements under federal law by adding authority to inquire into matters that do not involve criminal conduct. It states: “A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.

Who is eligible for Grand Jury service? 

10. A person can be called to serve if he or she is a US Citizen, able to understand and communicate effectively in English, is over the age of 18, is a resident of the county to which he or she is called to serve, and has NOT been convicted of a felony. 
11. In New York the same rules of evidence that apply to criminal trials generally apply to grand juries. 

What does Immunity in the Grand Jury mean?

12. Under New York law, transactional immunity (i.e. “blanket” immunity) is granted to every witness who gives evidence to a grand jury. Immunity is automatic, except where: (a) a witness has waived immunity in writing, (b) testimony is not responsive to the inquiry made and is gratuitously given, and (c) what is sought is document production, which does not afford the witness a right against self-incrimination. 

Who may testify before a Grand Jury? 

13. Potential defendants and witnesses 

• Potential defendant, upon receipt of written request to appear by the district attorney. If a defendant chooses to testify, defense counsel can be present. If the prosecutor fails to allow a defendant to testify, the indictment is dismissed. 
• However, there is no requirement that the defendant testify before a grand jury. 

Source: New York County Lawyers Assoc.

Michael Jaccarino, and the criminal defense attorneys at Aidala, Bertuna & Kamins, PC, have decades of experience. 

For more information or more fact-specific discussions, call our office and ask to speak with attorney Michael Jaccarino.