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By Jill K. Sanders, Esq.

The term petit jury refers to the jurors who determine a defendant’s guilt or innocence. In contrast, a grand jury is a larger group of jurors that determine whether there is cause to pursue felony charges. Here, we talk about grand juries and what you should know about them.

Grand Jury Basics

Both New York and the federal system use grand juries. In New York, a felony case must be presented to the grand jury unless the defendant specifically waives this requirement. In some jurisdictions, this is called an “SCI waiver,” in which a defendant is then charged by a superior court information, rather than an indictment.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… .”
~ United States Constitution, 5^th Amendment

 “No person shall be held to answer for a capital or otherwise infamous crime…unless on indictment of a grand jury… .”
~ New York State Constitution, Article 1, Section 6

The grand jurors, numbering 16 to 23 people, will consider the evidence presented by a prosecutor. There will be a foreperson, assistant foreperson, and secretary chosen from the jurors who assist in various functions. Then, the prosecutor will give instructions to the jurors about the law. At least 12 of the jurors must vote to indict for an indictment to be handed down.

When there is an indictment, this is called a “true bill.” When there is no indictment, the jurors have decided there is “no true bill.” In some cases, the jurors may find there is evidence of misdemeanor crimes rather than felonies, and direct the prosecutor to file a misdemeanor information.

Grand jury proceedings are secret. This means that the public cannot be present during deliberations. Moreover, the defendant is also not present nor is his/her attorney. If the defendant testifies, his/her attorney may be present but cannot ask questions, make objections, or speak to the jurors. Indeed, even a judge is not present during most of the proceedings but is available for questions.

Grand Jury Burden of Proof

To be convicted of a crime, a defendant must be found guilty beyond a reasonable doubt. Yet for grand juries to indict, the burden is much lower. They must only find reasonable cause to believe that a defendant committed the felony.

Moreover, the prosecutor is essentially in charge of grand jury proceedings. The prosecutor decides what evidence to present, picks the witnesses to testify, and instructs the jurors on the law. While a judge is nearby, he/she will not be in the room nor will he/she hear any of the evidence. As a former top judge in New York once stated, a prosecutor could get a grand jury to indict a ham sandwich.

Jurors, however, can take some control. They can ask witnesses questions and can also ask questions about the law. Moreover, the grand jury may direct the prosecutor to call witnesses. And the jurors can ask for additional evidence they feel would be relevant to their determinations. Indeed, special grand juries can actually investigate criminal activity and have subpoena power for witnesses and evidence.

A Defendant’s Right to Testify

A defendant does not have to testify before the grand jury. Indeed, in most cases he/she will not testify. However, his/her right to testify is sacrosanct.

As such, if a defendant has been arrested the prosecution must notify him/her of a grand jury presentation. Often times, a defendant will say he/she wishes to testify just to preserve that right and then later make a decision. Good practice would be to timely advise the prosecution of the wish to testify on the record in court or in writing.

Any statement made by the defendant can be used against him/her in future proceeding. As such, the decision to testify is an important one. Generally speaking, when testifying to grand juries the defendant will first give his/her version of the events. Then, a prosecutor will ask follow-up questions and can use this opportunity to find out more information about the incident.

Other Grand Jury Practicalities

In New York, grand jurors who serve can be called once every six years. If your service lasts 11 days or more, you can be called again after eight years. Otherwise, to be a juror, one must be:

• 18 years of age or older,
• A United States citizen,
• A resident of the county where summoned to serve, and
• Able to understand and communicate in English.

If you’ve previously been convicted of a felony, you may be able to serve if you’ve received a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.

A term of grand jury service usually lasts about two weeks. In rare cases, the jury will sit for three months or more. However, this doesn’t mean they serve everyday. Such a jury can meet, for example, once a week for an extended period of time.

The state will pay a juror $40 per day for service if they are un-employed, are serving while on a scheduled day off from work, or if their employer isn’t paying them. However, employers with more than ten employees must pay a jury at least $40 per day for the first three days of jury service. After that, the state will pay the $40 to those jurors whose employer is not paying them.

References:

• Criminal Procedure Law Article 190, “The Grand Jury and Its Proceedings.” Available at: https://www.nysenate.gov/legislation/laws/CPL/A190 (last accessed Sept. 14, 2021).
• New York State Unified Court System, Grand Juror’s Handbook (Feb. 2017). Available at: https://nyjuror.gov/pdfs/hb_Grand.pdf (last accessed Sept. 14, 2021).
• Josh Levin, “The Judge who Coined ‘Indict a Ham Sandwich’ Was Himself Indicted,” com (Nov. 25, 2014). Available at: https://slate.com/human-interest/2014/11/sol-wachtler-the-judge-who-coined-indict-a-ham-sandwich-was-himself-indicted.html (last accessed Sept. 14, 2021).