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.



  1. Anonymous says:

    What is your opinion be of a situation where an attorney fails to let his client know of a grand jury hearing for his client and does not even know until three weeks after the fact that the grand jury met and has indicted said client?

  2. Peter Tilem says:

    Its very hard to comment on a specific situation that I was not involved with but generally, unless your lawyer serves notice that you wish to testify in the grand jury, the prosecutor can present the case and vote the indictment without your attorney being aware. The prosecutor must serve grand jury notice only when a felony complaint is pending. For more information contact me.

  3. anonymous says:

    I was arrested on November 6th, 2009 and put in jail till the 12th for a crime I did not commit. I was charged with 1st degree sex abuse. I was let out of jail on the 12th under house arrest. I have been on the gps since then and have heard nothing from anyone since. I have tried contacting my public defender fifty plus times and have had no response back. What do I do? The charges against me stem from my 16yr old daughter running away with her 20 yr old new boyfriend. I found out where she, was after filling a missing persons report with the police, and went to get her. She told me and her mother that she was not comming home with us and she was going to live with this guy. i told her I will have this man arrested for statutory rape if she did not come with us. She came home. The next day she left again while I was at work, and again I went to find her. She was nowhere to be found. ”’i contacted the police again and informed them that she was in the missing and they informed me that they had her and for me to come in and get her. I went to the police station and they told me to come in the back to talk, and boom they hit me with this complaint that three years ago I bit my daughter on the boob by forcible compulsion. I said what are you talking about. They said this is what she told them. I said they were nuts and that she was just saying this to get out of trouble. Then I told them I wanted to talk to a lawyer. They said give them a few minutes and then
    I could talk to a lawyer. They left the room and came back in about fifteen minutes later and read me my rights and arrested me! I was shocked. I could not believe this was happening to me. Next I was brought in front of a local judge and was told I was going to jail and my bail was set at 30,000 cash 60,000 bond. I could not believe it. I went to jail and then I was released on the 12th to probation under house arrest. there is a restraining order against me and I can not see my familly so now I am living with relatives. I cant see any of my three kids or my wife until this is done with. I am going nuts!! My job suspended me until this is over. I have to now pay for everything in my house, all the bills, and without any job. My familly is going to lose our house and everything. It has been over a month with no news and two weeks ago my sister, who is in contact with my wife and kids, told me that my daughter called the DA and told them that she wanted to withdraw her statement against me that she lied, the DA told her she could not and she could not drop charges now becuse it was to late. My daughter told the DA that she was not going to testify and that if it goes to court she will not show up, the da told her she would be brought to court by a police officer and she would have to testify!! My daughter said she would plead the fifth as she could not say anything as it would incriminate her for telling the lie. What am I supposed to do? I have no more money for a lawyer, and my puplic defender wont return my calls. I am lost. I dont know what to expect next? I have read on the internet that they have to indict me within 45 days, well that is almost up. I also read they have to indict with in six months. Which is it? Do I have anything to hope for? I pray every night for strength and gods help to get us though this. I am a emotional wreck. one minute angry, next crying. I miss my family so much. I am so angry with my daughter for putting us through this but I forgive her. I just want to go home. My order of protection is for four moths. Also my wife called the Da and asked that the order of protection be lifted from her and the rest of the kids except the one daughter who started this mess. the DA said no that that was set to protect them from witness tampering? What?? I would not even see my daughter, so how is that witness tampering? Please help me. I have no clue what is going on or what I am supposed to do. Please tell me what to expect or when I can get of house arrest so I can find another job. Can I sue for anything that I am going threw and if so who do I sue? My own daughter, NO? I need any help you can offer. Thanks for letting me vent and I hope to hear something from you. Merry Christmas!! God Bless

  4. Anonymous says:

    Can a prosecutor put a case in the grand jury if the defendant has not had enough time to seek legal counsel. An application for legal aid has been made but no consel has been assigned yet. The grand jury is to hear this case 6 days after arrest. How can a defendant know whether or not to testify if he has had not legal counsel to advise him? Does this action by the DA violate the defendants rights?

  5. Susan says:

    At what time will a Grand Jury be released through the Freedom of Information Act. Interested in a 1926 case, Ontario Co.

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