Almost anybody who has studied the criminal justice systems of different countries will agree that our great nation guarantees each citizen more protection from unfair prosecutions than any other country, past or present. One of the basic protections provided is that except under very unusual circumstances, in order to be prosecuted on a felony charge, a defendant must first be indicted by a grand jury hearing the evidence relating to the case. The grand jury votes whether or not there is sufficient evidence for the matter to be tried in the superior court of universal jurisdiction. In New York State, that court is called the Supreme Court or the County Court. This article will examine the pluses and minuses of having an individual charged with a felony testify before the grand jury. This article will not deal with the many intricacies of grand jury practice. Rather, it will give a basic picture of the grand jury process and when a defendant should consider testifying before the grand jury.
The exception to the rule requiring an indictment to prosecute a person in the superior court is when a defendant consents to be prosecuted in Supreme Court on an accusatory document called a Superior Court Information, commonly referred to as an S.C.I. An S.C.I. is a document transferring a case from the Criminal Court in New York City or the District Court outside of New York City to the Supreme Court or County Court. An S.C.I. requires the consent of the defendant. It is a method of saving time in conjunction with a plea negotiation that has been worked out between the district attorney's office and the defendant's attorney. Otherwise, a prosecution in Supreme Court requires that the district attorney file an indictment against the defendant.
A grand jury in New York is composed of twenty-three citizens who hear the evidence against the defendant (see New York State Penal Law §190.05 for more details). To be operational, it is not necessary for all twenty-three grand jurors to be present. Rather a legal quorum requires that at least sixteen members of the grand jury be present (N.Y.S.P.L. § 190.25). Unlike a regular jury that requires a unanimous vote to convict or acquit, a grand jury can vote an indictment on a simple majority vote of the grand jurors hearing the case. However, to protect the defendant, if less than a full grand jury of twenty-three is present, at least twelve members must concur to file any legally sufficient accusation against the defendant. The grand jury can vote an indictment charging a felony, vote a no true bill dismissing the charges or vote a prosecutor's information that charges the defendant with a reduced charge of either a misdemeanor or a violation.
This article does not purport to address the subject of grand jury proceedings in a scholarly fashion. Rather, I will present my position that most defense lawyers do not utilize the incredible benefits of presenting a defendant to testify before the grand jury.
While I was never lucky enough to actually work as an assistant district attorney and have the benefit of having been present at thousands of grand jury proceedings, I have always been a believer in having my clients testify whenever there is a possible benefit. As a result, I have probably had somewhere between 100 and 200 clients testify before the grand jury hearing the evidence against them.
Based upon my observations and my discussions with colleagues about having defendants appear and testify before the grand jury, I believe that it is fair to say that significantly less than one percent of all defendants charged with felonies actually testify at a grand jury. To my way of thinking that is a real crime and shame for many reasons: (1) it deprives a defendant with a reasonable explanation of the possibility of having his or here case dismissed without a trial; (2) it deprives the defendant of the opportunity to practice his testimony in a real setting where there is what to lose if the testimony is not honest or if the defendant has not properly prepared for the appearance; (3) it also deprives the defendant of a really good script; and finally (4) if the client has been lying to himself or to his lawyer, that will become apparent to all when the assistant district attorney makes the defendant look like a lying weasel upon cross-examination by the assistant district attorney presenting the case to the grand jury.
A grand jury appearance by the defendant is not a good idea in all circumstances. It generally (although not always) requires that the defendant be at least nominally intelligent and articulate. It also requires some sort of reasonable defense. Finally, it requires that the defense lawyer should be positive as possible that the defendant is not lying.
While I have not kept specific statistics, my guesstimate is that of the many defendants I have put in the grand jury, somewhere between one-third and one-half of them have had the charges dismissed or reduced from felonies to misdemeanors. While the rest of the defendants were indicted, the fairly high percentage of success justifies the extra effort of a grand jury appearance. Furthermore, it is more or less a free bite at the apple in terms of my general observation that the defendant is generally not penalized for testifying at the grand jury any more than he is by not taking the plea offer made by the district attorney in the lower court. That is pretty good as far as I am concerned. In those cases where an indictment results, I have at least given my client real practice in testifying so that he will really know what testifying is all about and I have also guaranteed that my client will have a script to work from when he goes to trial. It is all good!
Sometimes, it even makes sense to put a client in the grand jury when he or she is in denial about either their guilt or their chances of success at trial.
In the case of a client of at least moderate intelligence and nominal articulateness and with some sort of a defense, there is a real chance of having the felony charges against the defendant go away forever. Obviously, my client must be telling the truth and I must be reasonably certain of that. Therefore, it behooves me to carefully, constructively and critically corroborate the claims of the client and also that what he is telling me is factually accurate. Although this does not always work, it at least guarantees that I will have done what I have supposed to have done.
My most interesting grand jury case was as co-counsel to a distinguished attorney who has since moved up to the criminal court bench. We were retained to represent two young Pakistani men who were accused of kidnapping, assault and other related charges with respect to another young Pakistani man. To heighten the tension and urgency of the case, my client was in medical school in Poland and would have been expelled if he did not show up for the fall semester, an unpalatable position for sure. Our clients' defense was that they did not kidnap the victim. Rather the incident revolved around the fact that the putative victim had seduced and deflowered the sister of my client so that her prospects as a bride in the Pakistani community were severely proscribed. The complainant wanted the sister to marry him. Apparently, this was acceptable back home, although it violates a lot of laws in the state of New York.
The defendants denied that they had committed any crimes. The assistant district attorney presenting the case and his supervisor were basically sympathetic to our clients as they had a real understanding of the cultural background our clients came from. Our clients claimed that the complaining witness went with them voluntarily and that their purpose was to convince the complainant to reveal the whereabouts of the sister before the complainant was able to cajole, convince or coerce the sister into marrying him.
These young men were terribly offended by the fact that the sister was being violated and having sex before she was married. Compounding the matter was the fact that the complainant was of a much lower social class than the families of the defendants. On the one hand, my client was an articulate, intelligent good looking young man in a foreign medical school and clearly not a person who anybody would ever believe would kidnap somebody. On the other hand, based on my limited knowledge of the sociology of these particular people, it did not seem totally unreasonable that he would certainly do everything in this power to prevent his sister from being permanently scarred and prejudiced by being taken by somebody of a clearly inferior class before marriage and being secluded and seduced by that person.
As stated, the assistant district attorney presenting the case was not terribly unsympathetic to our position but was faced with the reality of a supervisor who insisted that the matter be presented to the grand jury. After both of our clients testified, the district attorney told us "off the record" that the grand jury had voted an indictment but that based upon all the facts and circumstances of the case that if our clients would plead guilty to a rather innocuous misdemeanor, they would not be indicted, they would receive a very mild sentence and most importantly, my client would be able to continue medical school in Poland. It worked for us!
While I did not obtain a no-true bill, I did mange to have a violent felony that could have subjected my client to approximately 25 years in the care and custody of the New York State Department of Corrections reduced to a misdemeanor where he received a conditional discharge. I call that a win for me and the defendant. Justice was rendered to all.
Had he been indicted, I am sure that the grueling and rather unpleasant experience of having testified before the grand jury would serve him well when he testified at trial. Furthermore, he would have a clear script to work from.
While it can be argued that my client was clearly not a typical client in terms of his above normal intelligence, his soft spoke articulate demeanor and his good looks, I do not believe that those factors made his situation unique. Rather, I believe that it was the many hours of preparation together that enabled him to testify so effectively.
I would be willing to bet (especially since nobody can prove me wrong) that it was the way he testified that caused the district attorney to offer him a plea to a misdemeanor.
How do you go to testify before a grand jury? It is the same way you get to Carnegie Hall. Practice, practice and more practice. My own preference is that we need at least a dozen times. Two dozen or three dozen times is even better. Each meeting lasts no more than the time it takes to testify exactly as one would testify at the grand jury and to allow for my cross-examination as a district attorney might do. Usually, the meetings take between five and ten minutes. Rarely do the meetings take more than one-half hour. It is much more effective to spend a very short amount of time on many, many occasions than it is to spend a lot of time on two occasions. My theory is that the more time one reviews something the better one will remember it and the more fluent the person will be. This is in line with a famous dictum in the Talmud that says the person who learns a matter one hundred times will not know it nearly as well as the person who learns a matter 101 times. I am certain that is true.
That was the story for defendants who are articulate, intelligent and have some sort of a defense. On the other hand, a large portion of my criminal clients are quite frankly, not that bright. A frequent refrain is that they are going to testify at trial so that the truth will be known. I frequently have to tell them that the truth will be known and that in all probability it will result in their getting a significant amount of jail time.
This too is a client who may be greatly benefitted by appearing and testifying at the grand jury. Especially if I have a reasonable district attorney, I sometimes have such clients testify so that when they are indicted, they will take a plea as soon as possible and end up doing less jail time than they would otherwise do by going to trial and almost certainly losing. I have done this many times and the strategy has almost always worked for me. It probably will not work the next time I try it if there are any assistant district attorneys reading this article.
Having a client testify before the grand jury, means that you are going to work a lot harder on your case and you are going to have to sweat. However, I am confident that the effort is worthwhile and is a labor of love well worth the tremendous effort that you will have to expend. If there is a shot, go for it and good luck!