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On Behalf of | Jan 7, 2015 | Criminal

Recent Grand Jury decisions involving claims of excessive Police force in the cases of Michael Brown in St. Louis, Missouri and Eric Garner in Staten Island, New York, has caused a great deal of outrage, confusion and questions regarding those decisions by the Grand Jury. With respect to the Brown case, that Grand Jury decision was released on November 24, 2014. The Eric Garner decision was released on December 3, 2014. You can read about both those cases in depth by just Googling their names. The purpose of this blog is just to talk about what a Grand Jury is.

In Colonial America, the first Grand Jury was convened in 1635. Back then, however, the Grand Jury was used as a means of interposing citizens between the government and its critics. That is not the case anymore. To be clear, the Grand Jury is now an instrument of the Prosecutor. The Grand Jury is a group of citizens, consisting of not less than 16, no more than 23 persons from the county in which the crime is alleged to have occurred. The Grand Jury convenes to screen criminal cases and decide whether there is enough evidence to accuse and bring someone to trial. The burden of proof at the Grand Jury is not beyond a reasonable doubt, as it is in a Criminal Trial. The Grand Jury is not the mechanism to determine guilt or innocence of the accused. It is just to determine whether or not the case can go forward for prosecution.

Any Criminal Defense Attorney will tell you that a Grand Jury will most likely indict any case that is presented before the Grand Jury unless the accused testifies before the Grand Jury. Without any evidence or testimony, by or on behalf of the accused, an Indictment by the Grand Jury is almost certain. In both Michael Brown and Eric Garner cases, the Police Officers who were accused of the excessive force, causing the death of Mr. Brown and Mr. Garner, testified on their own behalf at the Grand Jury. It is the exception, not the norm, for the Defendant to present evidence on his own behalf at a Grand Jury.

The Prosecutor who presents the case under investigation for Grand Jury action has the power to shape the case for the Grand Jurors. A Prosecutor should present the case in a fair and unbiased manner. That is usually not the case, especially if the person being investigated by the Grand Jury chooses to testify at the Grand Jury. The person being investigated by the Grand Jury, or his or her Attorney, cannot be present during the Prosecutor’s presentation of the case. They can only be present if the person being investigated decides to testify at the Grand Jury. The Criminal Attorney’s role at the Grand Jury is extremely limited. He or she may not speak at the Grand Jury, but can render advice to his or her client, if the client requests advice during his or her testimony. There is not right to cross examination of a prosecution witness at the Grand Jury.

Legal Scholars, including Judges, have criticized how Grand Juries function and are controlled by the Prosecutor. In New York State, Governor Cuomo recently stated that Grand Jury procedures should be reviewed. Whether or not a person being accused of a crime should testify before the Grand Jury is a question which should be carefully analyzed by an experienced Criminal Lawyer and his client.

There is so much more regarding Grand Juries, which is much too long to post in a single blog. In New York, the Grand Jury and its proceedings is controlled by Article 190 of the New York State Penal Law. If you are accused of a crime which will be presented to a Grand Jury for investigation, you can contact me, Luke Scardigno, at 718-414-6186 for an immediate and free consultation.


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