The Decision to Testify in the Grand Jury
If you are arrested on a felony charge in the state of New York, in order for the District Attorney’s Office to take you to trial they must first indict you. What does that mean? It is the requirement that the District Attorney present evidence – testimony of witnesses, police officers, and/or physical evidence – to 24 citizens sitting as a “Grand Jury” to determine if, based on that evidence, there is reasonable cause to believe that a crime was committed and that the defendant committed the crime. It is far less than the “beyond a reasonable doubt” standard of proof that is required for a conviction at trial. If an indictment is issued the case moves forward towards litigation. If an indictment is not issued all the charges are dismissed against the client.
The Grand Jury presentation is all but completely controlled by the District Attorney when it comes to what is and is not presented to the jurors. There is no judge and the defense attorney has no right to speak or argue on behalf of his or her client. The Defendant does however have the right to testify on his own behalf and to offer witnesses (the jurors may vote on whether they want to hear from the defense witnesses). It is rare for a defendant to testify as his attorney does not conduct the questioning and there is no judge to rule on objections. But there are the rare occasions in which a defendant testifies before the Grand Jury. It is a strategic decision that can make or break a case.
Recently our firm was retained to represent a client who was charged with possession of a loaded firearm found in the trunk of a car parked in his driveway. The problem was that it wasn’t his gun. He was arrested and charged with a Class C Violent Felony where if convicted he faced a mandatory state prison sentence of 3.5 years and a maximum of 15 years. Robert Schalk from our firm handled the case for this client and after meeting with him determined that a defense of temporary lawful possession of a weapon was warranted. However, the only way to immediately raise this defense was for the defendant to testify in the Grand Jury and to offer a witness. It was the type of calculated risk that is sometimes necessary in the high stakes game of criminal defense. The defendant and the witness both testified, as did numerous police officers for the prosecution. When it was all said and done the Grand Jury saw the gun case for what it was – an honest mistake, a lapse in judgment and most importantly NOT a crime. All of the weapons charges were dismissed against our client. The jury’s decision was based almost entirely on the defendant’s ability to articulate his side of the events to the Grand Jury.
Making the decision to testify before a Grand Jury is not easy. It comes with enormous risk. But success in the Grand Jury can lead to a dismissal of the charges, and there is no better result in the criminal justice system. It is important to retain an experienced criminal defense attorney who can evaluate the facts of the case, possible defenses and knows what it takes to testify effectively in the Grand Jury. All of the criminal attorneys at Collins, McDonald & Gann are former prosecutors with years of experience and success handling serious cases for our clients.