One of the most important parts of the criminal justice system is also the most opaque: the grand jury.  The grand jury convenes in secret and controls whether a defendant stands trial for the most serious criminal charges.  Because of its clandestine nature, its critical role is not well understood.  Allow us to pull back the veil of secrecy and demystify this important procedural step. 
 
For the purposes of this blog post, we’ll discuss the grand jury system at the state level, with discussions of the differences between the federal grand jury in later posts. 

Grand Jury at the State Level

The New York State Constitution expressly requires that "[n]o person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury." (NY Const. art. I, § 6).  Accordingly, no felony case may proceed to trial without the case having been heard and indicted by a grand jury. An indictment by a grand jury is what imbues a court with jurisdiction over a felony case. 
 
A grand jury consists of not less than sixteen but not more than twenty-three people.  The sole function of a grand jury is to determine whether there is sufficient evidence to try a defendant for the crime with which he is being charged.  If a grand jury decides there is such sufficient evidence, they approve an indictment on the felony charges.   The proceedings occur in secret, and only the prosecutor gets to present evidence and interact with the grand jury.  A grand jury can be convened either before a defendant has been charged with a crime as a means of investigating and indicting criminal conduct or after a defendant has been arrested and charged with a  preliminary charging instrument. 

Defendant's Rights

Despite the fact the prosecutor is in control of the grand jury, the defendant is not without rights.  A defendant who has already been arrested has an absolute right to testify before the grand jury (CPL §190.50).  The decision to so testify should be made following careful consultation with counsel as a defendant will be subject to questioning by the prosecutor.  (CPL §190.50(5)(b).  The statements made by a defendant can be used against that defendant at a subsequent criminal trial.
 
The defendant also has an important but often overlooked right to propose witnesses for the grand jury to call.  The grand jury retains the discretion to hear from the witness or decline the defendant’s request.  (CPL §190.50(6)).    
 
The Court of Appeals recently discussed this issue in People v. Mangrah, 2018 NY Slip Op 07924 (November 20, 2018).  In Mangrah, the prosecutor failed to request that the grand jury vote on whether to hear from a witness proposed by the defendant.  For technical reasons, the court refused to vacate the defendant’s guilty plea to the charged crime.  However, Justice Rivera wrote in a lengthy concurrence, “A prosecutor's legislatively imposed duty to submit the name of a defendant's proffered witness to the grand jurors is of no less significance to the integrity of the process than a general duty to act with due consideration is to the fairness of the process.” 
 
We will update this blog with further discussions about the grand jury, including the differences between state and federal grand juries, grand jury subpoenas, and immunity for witnesses who testify before the grand jury.

Read more from Gallet Dreyer & Berkey’s White Collar Criminal Defense blog or contact an attorney in our White Collar Crime practice.