Should I Testify In The Grand Jury? Part One

Mar 15 2017

As a NYC criminal defense attorney, I get the question of whether a criminal defendant should testify in the Grand Jury a lot. I would venture to guess that the discussions related to this topic cause a greater amount of friction between an attorney and his or her client than any other issue. Defendants usually want to testify and their lawyers usually don’t want them anywhere near the Grand Jury. Why is that? The next few blog posts are intended to answer the question and try and elucidate the (usually sound) reasoning behind NOT testifying in the Grand Jury. Before ultimately answering the question of whether one should testify though, Part One of this topic is designed to explain what the Grand Jury is and what it does. As always, this blog is written by a criminal lawyer for a layperson to understand the basics of the Grand Jury system in New York and is NOT legal advice. Everything you read here is likely to have exceptions so please do not read any of this as Gospel and DO NOT rely on it if you have a criminal case or are in need a of a lawyer. If you want legal advice, hire a lawyer.

First and foremost, I don’t like speaking categorically about anything, especially criminal defense practice. So I am not going to lay down a blanket rule like, “You should never testify in the Grand Jury” or “You should absolutely let the Grand Jury hear your side of the story.” Instead, I will simply say this, when I was a prosecutor in the Manhattan District Attorney’s Office, I did everything I could to encourage criminal defendants to testify in the Grand Jury. So if you’re thinking of testifying in the Grand Jury on your own behalf, just know that a prosecutor is likely salivating over this decision.

So what is the purpose of the Grand Jury? Unlike with a trial jury, where the purpose is to determine whether the evidence proves the defendant’s guilt beyond a reasonable doubt, the purpose of the Grand Jury is to determine whether there is enough evidence to accuse someone of committing the crime. The Grand Jury is comprised of 16-23 random people who get jury duty. They usually sit for a month and they hear abbreviated evidence with regard to cases that the prosecutor brings before them. They then vote as to whether it is more likely than not that the person committed the crime that the prosecutor is asking them to consider. If 12 or more people (of the 16-23 needed for a quorum) think there’s enough evidence to formally accuse the defendant, they vote an indictment and the case proceeds. If, on the other hand, they determine there isn’t enough evidence, they either vote that they want to hear more evidence or they dismiss the case. In the Grand Jury, there is no judge and no defense attorney. There is no one to cross-examine the witnesses and no one to question the evidence brought by the prosecutor. There is only the prosecutor, the Grand Jurors, and the witness who’s testifying. The prosecutor essentially serves as the judge (although the minutes from the proceeding are later reviewed by a real judge to determine whether the proceeding was properly conducted) and as the (unchecked) advocate. If you are a Yankee fan, think of the Grand Jury as Fenway Park meets North Korea. Theoretically, you could win, but good luck!

If this sounds unfair, there is reasoning behind the law. The Grand Jury is not there to determine whether the person ultimately committed the crime in question. They are there to determine whether there’s enough evidence to accusethe defendant of the crime. Once that the threshold is met, the defendant then essentially begins to fight the case. This is a weird concept for many people and I think that the confusion as to whether a defendant ultimately should testify comes from the misunderstanding about what the Grand Jury does. The easiest way to think about it is to think of the Grand Jury system as a right that a defendant has. Rather than having policemen and prosecutors choose who to accuse of what crimes, the idea is that it’s up to random citizens to accuse people and the only thing the police and prosecutors can do is bring evidence for them to consider. So the Grand Jury is intended to serve that “gate-keeping” function.

So that’s what a Grand Jury is and what it generally does. So, how is a Grand Jury different than a Petit Jury (aka trial jury)? That will be the subject of Part Two. Stay Tuned.

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