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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.
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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.
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.
The prosecutor, who always carries the burden of proof, is required to present evidence.
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.
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.
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.
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.
The grand jury votes and, with the agreement of at least twelve grand jurors, may choose from several possible outcomes:
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.
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:
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:
Even where an indictment is issued, many grand juries decide to dismiss individual counts or charges, while indicting others.