Getting arrested for any crime in New York is a troubling experience. However, if you have been arrested for a felony, you have much greater concerns that just the arrest itself. 

While most everyone has heard the term “indicted,” many have no idea what it actually means. What you need to know is that it is bad, and that it takes the concerns of an arrest to a much higher level. As a general rule, without an indictment, an individual cannot be prosecuted for felony charges. While you may be arrested for felony charges, the prosecutors cannot move forward on felony charges unless they obtain an indictment. In New York City, the way that prosecutors obtain an indictment is through the Grand Jury.

What is the Grand Jury?

Grand Juries are made up of people called to serve on jury duty and who are empowered to hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges that they consider. Grand Juries sit for approximately one month. At any given time, there are multiple Grand Juries sitting in each borough.  They are comprised of 23 citizens who hear and examine evidence, although only 16 jurors are needed to hear evidence and vote on a case.

What does the Grand Jury do?

The Grand Jury can vote an indictment if they determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant committed the crime. Otherwise the Grand Jury can dismiss the matter.

What is the burden of proof?

Unlike the burden of ‘proof beyond a reasonable doubt’ that is used to determine guilt at trial, the burden of proof in the Grand Jury is ‘reasonable cause to believe.’ This burden of proof is much lower. However, it is not a finding of guilt. It merely allows the District Attorney’s Office to pursue felony charges against you in Supreme Court.

Are Grand Jury Proceedings Public?

No. Everything that happens in the Grand Jury is secret and only specifically authorized persons can be present. In addition to the prosecutor and the grand jurors, there is also a stenographer and a Grand Jury Warden present. Prosecutors are prohibited from sharing what happened inside the Grand Jury.

There is no judge inside the Grand Jury. Instead, the prosecutor acts as the judge, meaning he or she chooses what evidence is admissible and instructs the jurors on the law. Obviously, this gives the prosecution a huge advantage during these proceedings, as there is no defense attorney present either, and the prosecutor has discretion over what evidence to produce. Often, significantly less evidence is presented to the Grand Jury than what will be presented at trial. See Part 1 to read about how the prosecutor in Ferguson is bucking the trend and presenting all the evidence to the St. Louis Grand Jury.

So, knowing that the cards are stacked against a defendant facing an indictment in the Grand Jury, is there anything to be done? As a former prosecutor, who has presented hundreds of cases to the Grand Jury in Brooklyn, and cross-examined many defendants in the Grand Jury, I have a unique perspective on the tactics that can be successful in the Grand Jury. Earlier this year, we successfully convinced the Manhattan Grand Jury dismiss felony assault charges against one of our clients.

In New York State, the defendant has the right to testify before the Grand Jury. In this area, an experienced defense attorney has some room to operate and make a difference. If the prosecution violates a defendant’s right to testify, a judge may dismiss the indictment. Also, while defendants usually do not testify before the Grand Jury, in certain cases the benefits of testifying can be enormous. Keep in mind, there is also tremendous risk. While this is the only time during this secret proceeding where a defense attorney can be present, the attorney will not be allowed to speak.

Also, barring some procedural issues, if prosecutors do not obtain an indictment against you within six months of your arrest, the felony case against you must be dismissed.

It is important to meet with an experienced Manhattan or Brooklyn criminal defense attorney who can evaluate your case and implement a strategy to fight your case during the Grand Jury stage. The Grand Jury is a very powerful body of men and women, who not only have the power to make decisions that can restrict your freedom, but who also have the power to dismiss the charges against you. You cannot afford to not construct a defense at this early stage.

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