The Grand jury is only used in Criminal Felony cases, not misdemeanors. Its’ function is to determine whether there is reasonable cause to believe that the defendant committed the crime charged. This is a very low standard . It is not anywhere near the burden of proof in a civil case of a preponderance of the evidence ( more likely than not or more than 50% certainty) much less the burden of proof that the prosecuting ADA ( Assistant district Attorney ) has at a criminal trial which is beyond a reasonable doubt ( think at least 95 % certainty ).
If the Grand Jury determines that there is reasonable cause then they will return a True Bill and Indict the defendant. This means that the defendant will be prosecuted for the crimes charged in the Indictment unless the Grand Jury directs that the Prosecutor reduce the felony charge(s) to a misdemeanor, in which case there is not an indictment but instead the prosecutor prepares a document called a Prosecutor’s Information.
The defendant is then either prosecuted in a local criminal court if charged with a misdemeanor or in a Superior Criminal Court such as a County or Supreme Court if charged with a felony.
The proceedings of the Grand Jury, unlike a Trial Jury in open Court, are conducted in secret. The prosecutor presents evidence and witnesses before the Grand Jury and then they choose to Indict or direct that a prosecutor’s information be filed instead or they vote a No True Bill which means they were not convinced that the defendant committed the crime(s) charged. If a No True Bill is returned, the case is dismissed with the exception that the prosecutor can try again, usually with additional evidence, and thus, re-present the case to the Grand Jury at a later time.
The defendant is allowed to testify ( if he waives his right to be free from self incrimination ) and present evidence in his behalf. In order to do this the Defendant, at or shortly after, Arraignment ( see previous article on Arraignment ) must provide a written Notice of Intent to Testify before the Grand Jury to the prosecutor in order to trigger the prosecutor’s obligation to provide Notice of Presentment of the Case to the Grand Jury. If the defendant does not provide this notice, the prosecutor can present the case without providing notice of time, date and place. For Defendants that are in custody ( not out on bail or released on their own recognizance ) there is a strict time period pursuant to Criminal Procedure Law section 180.80 ( usually approximately 5 days after arraignment ) in which the prosecutor must present the case and get an Indictment or the defendant will be released from custody. However when engaging in plea bargain negotiations with the prosecutor, many times the prosecutor will request the defense attorney to Waive 180.80 , meaning the defendant remains in custody and the prosecutor does not have to present the case to the Grand Jury, in anticipation that there will be a successful plea bargain and the case disposed of quickly. Generally the defense attorney should and does consent to waive 180.80 unless he does not believe he will get a plea bargain offered that the defendant will accept and/or it will take a longer time and the defendant wants to be released if not indicted. ( this presumes the defendant did not and cannot make Bail or be Released on his own recognizance pending prosecution )
Generally ( probably 95% of the time ) the Defense counsel will advise that the defendant does not waive his right to be free from self incrimination and testify before the Grand Jury. The reason for this is because at the Grand Jury stage of the case the burden of proof is very low and usually the Grand Jury will return a True Bill and Indict the defendant, and since anything the defendant said can and will be used against him at trial. Also this tips off the prosecutor as to what defendant’s theory of the case is and what defenses he may have and thus allows the prosecutor extra time to prepare his case. Sometimes however, a defendant testifies against the advice of his attorney and thus usually hurts his chances of winning an acquittal ( not guilty verdict ) at trial. However in certain ( fairly rare ) instances the Defense Counsel will and should advise his client to Testify before the Grand Jury. Usually this is only done if the Defendant is likeable, believable and articulate enough to be a good witness in his behalf in presenting a good defense ( such as an iron clad alibi defense that he was far away from the scene of the crime at the time in question ) and that the defendant and his attorney believe it very likely that the Grand Jury will not Indict the defendant.
Watch for future articles in Criminal and Civil Law.