Should I Testify In The Grand Jury? Part Three

Apr 04 2017

This is the third part of a multi-part blog post about how the Grand Jury in New York works and whether a defendant should testify in it. As mentioned before, this blogpost is written for laypeople to understand and deliberately avoids legalese or other jargon. It also is not legal advice. The decision to testify in the Grand Jury is an important one and you should not substitute this post for the advice of an actual lawyer. If you want legal advice, hire a lawyer. Part One described what the Grand Jury does and how it differs from a petit jury (also known as a trial jury). Part Two focused on the actual differences between the two kinds of juries and dealt with why the decision to testify at the Grand Jury involves a different kind of analysis than the decision to testify at trial. This final part is intended to tie everything to together.

As I mentioned in Part Two, there are four main reasons why a defendant should think twice before testifying in the Grand Jury. To recap, the reasons are: (i) the defendant doesn’t know what evidence was presented against him in the proceeding; (ii) the prosecutor is entitled to cross-examine the defendant after he makes his statement, but his lawyer doesn’t get to cross examine the prosecutor’s witnesses; (iii) the case is in its infancy and as a result, the defense attorney hasn’t had an opportunity to find and develop evidence that could corroborate the defendant’s testimony; and (iv) the defense attorney can’t call witnesses or present evidence favorable to the defendant. So these are the four main obstacles that a defendant and his attorney has to deal with in a New York Grand Jury. But a question often asked is, “So what?” Even though the odds are stacked against you, why not just take a chance to “beat” the case now rather than at trial? It is best to answer this question with a hypothetical set of facts.

Suppose Person A walks into a bar and gets into a physical altercation with Person B. Suppose further that Person B pulls out two guns (one in each hand) and tells Person A that he will kill him. Now suppose Person A, wrestles one of the guns away and shoots and kills Person B with the gun. Suppose Person A is charged with murder because the prosecutor has witnesses who testify that Person A was NOT acting in self-defense (if you’re curious about self-defense law, click here). Person A is adamant that he had no intent to kill Person B and was only acting in self-defense and he insists on testifying in the Grand Jury. Seems like a smart idea right? What’s the harm?

Well, suppose during the secret Grand Jury proceeding, a neutral witness testified that the defendant could have retreated to complete safety and was the first aggressor. Person A’s lawyer can’t cross-examine this witnesses and establish that he was drunk and was person B’s friend so the Grand Jury never hears about it and based on his testimony, decides there’s enough evidence to accuse the defendant of Murder. So he’s now indicted and he’s on trial on the case. Suppose at this trial, which happens a year later, this same witness comes in, but now testifies that he can’t remember who shot Person B and can’t identify Person A as the shooter, but is still sure that the shooter was the first aggressor and could’ve retreated to complete safety. Had Person A not testified in the Grand Jury, the prosecutor would be in danger of having the case dismissed, but because the defendant testified previously, the prosecutor can now put into direct evidence the defendant’s testimony to the Grand Jury in which he admitted to shooting Person B. This is THE reason testifying is so dangerous. You are making a statement under oath that a prosecutor can choose to use against you at a future proceeding, i.e. YOUR TRIAL, if he chooses to do so. The point here is that a smart lawyer always thinks about the case as a whole and not just one proceeding at a time. And the decision to testify in the Grand Jury, could significantly affect the rest of the case.

Please note, that I didn’t even address the potential for perjury charges- which speak for themselves. As stated in previous posts, This is serious stuff. If you are the target of a Grand Jury investigation, have been arrested, or are in need of a NYC criminal defense attorney. Contact John Buza immediately.

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