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District Attorney

Understanding the Grand Jury System

Many people do not understand the role that grand juries play in the criminal justice system in New York. In an effort to explain just how grand juries work, and where they fit into the system, we have provided the answers to some frequently asked questions about the grand jury process.

What is a grand jury?

  • In New York, the grand jury is an arm of a superior court. In Orange County, the superior court is Orange County Court. 
  • A grand jury consists of 23 citizens, who the court selects at random, and who are intended to reflect a fair cross-section of the community.

Why does New York need grand juries?

  • Grand juries are required by the New York State Constitution in cases where a person is charged with a felony, unless the person waives the grand jury process in open court and in writing.
  • The grand jury stands between a citizen and the power of the government. No one may be tried for a serious crime unless a grand jury has determined that there is sufficient evidence.
  • The grand jury is unique. Only the grand jury has the ability to conduct a careful, complete, and thorough investigation at an early stage in a case.

Who presents evidence to the grand jury?

  • The prosecutor, who always carries the burden of proof, is required to present evidence.            

Who decides what evidence to present to the grand jury?

  • Initially, the prosecutor. However, unlike a trial, grand jurors may ask questions of witnesses and may direct that additional witnesses and evidence be subpoenaed.
  • In addition, the accused has the fundamental right to testify in his or her own behalf and may ask grand jurors to consider hearing from additional witnesses in his or her defense.

What types of evidence are received by the grand jury?

  • For the most part, the grand jury receives the same types of evidence in the same manner as a trial jury.
  • The prosecutor must follow the rules of evidence and must decide the admissibility of evidence, just as a trial judge would.
  • Unlike the grand juries in most other jurisdictions, a New York grand jury generally cannot consider hearsay evidence. Witnesses must personally appear and give sworn testimony.

What is grand jury witness immunity?

  • Unlike the majority of United States jurisdictions, grand jury witnesses in New York automatically receive transactional immunity, unless they decide to waive immunity, in writing, before the grand jury, and with their lawyer present.
  • A witness who receives transactional immunity can never be prosecuted for any crime involved in their testimony before the grand jury. Even witnesses who actually confess to crimes before a grand jury can never be prosecuted for those crimes.
  • Prosecutors must be careful in deciding what witnesses to call before a grand jury, so that they do not immunize a witness for a crime, and must, when appropriate, demand that a witness waive transactional immunity.

How does the grand jury know what law to apply to a case before it?

  • The prosecutor must provide the law to the grand jury, just as a judge would provide the law to a trial jury.
  •  The grand jurors can ask legal questions of the prosecutor or the court.

How can we be sure the prosecutor acts properly before the grand jury?

  • The testimony of witnesses, presentation of evidence, and legal instruction before the grand jury is recorded by a court stenographer, and is reviewed by the court in any case where the grand jury returns an indictment.
  • An indictment may be dismissed for misconduct on the part of the prosecutor, for any error that might prejudice the grand jury’s decision, or for insufficiency of the evidence to support the charges in the indictment.
  • Prosecutors, like all lawyers, are subject to a written code of ethical rules. A violation of those rules may result in serious sanctions.

What happens after all the evidence has been presented?

  • The grand jury votes and, with the agreement of at least twelve grand jurors, may choose from several possible outcomes:
    • Issue an indictment for any crime that it believes the evidence justifies; or  
    • Direct the prosecutor to file lesser charges in a local criminal court; or   
    • Direct the prosecutor to transfer a young person’s case to the Family Court; or
    • Dismiss all or any of the charges submitted to it; or  
    • In certain cases, issue a report concerning alleged misconduct in public office or, in limited situations, findings and recommendations for legislative, executive, or administrative action.

Do the grand jurors know about all of these powers?

  • Yes. At the beginning of their term, grand jurors are given a handbook detailing their powers and duties. The grand jurors are also shown an orientation video, “Protect and Uphold,” which outlines those powers and duties. Finally, the presiding judge and the district attorney also repeat all of the grand jury’s powers and duties orally.

Why is the grand jury proceeding secret?

  • New York law requires that grand jury proceedings be conducted in secret. There are three main reasons that secrecy of the grand jury is essential:
    • Secrecy ensures full cooperation of witnesses, free of fear of public humiliation, social stigma, retaliation, or other reprisal.
    • Secrecy allows confidential deliberation by the grand jurors free from outside influence, political pressure, or popular opinion.
    • Secrecy protects the innocent from needless public embarrassment or stigma where they are investigated but never formally accused.            

Is the grand jury symbolic in New York? (It’s been said that a prosecutor can “indict a ham sandwich.”)

  • No. It is repeatedly made clear to the grand jurors that they represent the court and their community, not the prosecutor or the police. They alone have the discretion to indict or dismiss a criminal charge.             
  • In practice, only a fraction of felony arrests result in indictments issued by grand juries. There are several reasons for that:
    • Prosecutors weed out many questionable, borderline, and less-serious felony cases prior to grand jury presentment.
    • Many defendants agree to waive the grand jury process and plead guilty.
    • Even among cases presented to a grand jury, many cases every year are dismissed, reduced to lesser offenses and sent to local criminal courts, or transferred to family court.
  • Even where an indictment is issued, many grand juries decide to dismiss individual counts or charges, while indicting others.