As a former Manhattan Prosecutor I have presented hundreds of cases to grand juries in New York. As a partner at a prominent criminal defense firm I have sat with clients inside the grand jury as they were questioned by prosecutors. With recent news reports about the a New York County Grand Jury considering charges against New York Giants stars Plaxico Burress and Antonio Pierce, it is important to understand exactly what a grand jury is and how it operates.
No person may be tried on a felony charge in New York unless a grand jury has considered evidence and voted an indictment or unless the person has waived indictment. The grand jury itself is made up of between 16 and 23 people. They are charged with the duty of hearing and examining evidence involving offenses or misconduct whether or not the misconduct is criminal. In order for a grand jury to vote an indictment 12 of the grand jurors must vote to indict.
The burden to vote for an indictment is low. A grand juror need only find that there is reasonable cause to believe that a person committed an offense. In laymans terms that means that a grand jury need only find sufficient evidence to accuse a person of having committed a felony. This is a very different standard than the proof "beyond a reasonable doubt" needed to convict someone of a crime.
The burden to obtain an indictment is so low that the former Chief Judge of New York State, Sol Wachtler, humorously noted that a prosecutor could persuade a grand jury to "indict a ham sandwich." It is not only the low burden that makes it so easy to indict, it is an area of the Court that is almost exclusively controlled by the prosecutor. Although, in theory the grand jury is supervised by the Court, no Judge sits in the grand jury room while they are hearing evidence or deciding cases. It is the prosecutor that presents all of the evidence and instructs the grand jury on the law. It is the prosecutor who decides what evidence the grand jury will see and which witnesses they will hear.
Although the prosecutor truly controls the goings on in a grand jury, a target of a grand jury investigation or presentation has certain rights which will be discussed in a future blog. In the meantime, if you are charged with a felony or believe that a grand jury may be considering charges against you, contact one of the lawyers at the New York criminal defense firm, Tilem & Campbell.