Your Right to Testify
If you’re accused of a felony in New York, you might have the right to testify before a grand jury. But should you?
Testifying is risky.
Before deciding, you should understand how the the grand jury process works. Only then can you properly weigh the risk of testifying against the risk of not testifying.
Indictment Required for Felony Trial
A district attorney can’t bring a defendant to trial on felony charges without first getting an indictment. An indictment is a document that accuses a defendant of one or more crimes.
A district attorney gets an indictment by presenting evidence to a grand jury. When the DA finishes presenting evidence, the grand jurors vote whether to indict. If the grand jurors vote not to indict, the case usually ends there. If the grand jurors vote to indict, the case continues towards trial.
Grand Jury vs. Trial
Because an indictment merely accuses a person of committing a crime, the law enables prosecutors to get an indictment with far less effort than it takes to get a conviction.
Comparison to a trial is a useful way to understand how the grand jury functions, how it favors prosecutors, and why testifying is risky for a defendant.
First, the prosecutor does not need a unanimous verdict.
The grand jury is made up of grand jurors – regular citizens, just like trial jurors, taking time off from their lives to do jury service. After listening to evidence, the grand jurors will vote whether or not to indict you.
At a felony trial, the jury is made up of 12 jurors. To get a conviction, all 12 jurors must unanimously vote to convict. Otherwise, the defendant is not convicted. A grand jury consists of 16 to 23 jurors. To get an indictment, only 12 grand jurors, a little more than half, must vote to indict.
An indictment is an easy hurdle, in part, because a unanimous verdict is not required.
Low Standard of Proof
Second, the standard of proof is very low.
At trial, the prosecutor must establish “proof beyond a reasonable doubt” to get a conviction. Think of this as 99% certainty of guilt. At the grand jury, the prosecutor need only establish “reasonable cause” to get an indictment. Think of this as less than 50% certainty of guilt.
This low standard of proof is another reason why it’s easy to get indicted.
Defendant Can’t Cross-Examine
Third, defense counsel doesn’t get to cross-examine witnesses.
The grand jury is a secret proceeding, at which the defendant has a very limited opportunity to participate. The public is not permitted to attend. Not even the defendant may attend, with one exception: the defendant may be present to testify, but not while any other witness testifies.
So, unlike at a trial, the defendant does not get to see who’s testifying against him. The defendant doesn’t hear the testimony of any witness other than himself. The defendant doesn’t see any physical evidence or documents that the prosecutor presents through other witnesses. Worst of all, the defendant doesn’t get to cross-examine the prosecutor’s witnesses: defense counsel can’t question prosecution witnesses to prove that the witnesses are mistaken or lying.
And while the Defendant doesn’t get to cross-examine prosecution witnesses, if the defendant testifies, the DA gets to cross-examine the defendant. Yet one more reason why it’s easy to get indicted.
DA, Not Judge, Is Legal Advisor
Fourth, unlike at a trial, where a neutral judge instructs the jury on the law, a far-from-neutral prosecutor – the very person seeking to indict the defendant – performs the role of legal adviser to the grand jury.
This heavy thumb on the scales of justice further eases the DA’s task of indicting you.
Not a Level Playing Field
The grand jury is not a “level playing field”, the way a trial is supposed to be. It’s a lopsided proceeding that leans steeply towards the DA:
- No unanimous verdict required.
- The standard of proof is very low.
- The defendant doesn’t get to cross-examine the DA’s witnesses, even though the DA gets to cross-examine the defendant.
- The DA, our adversary, is legal adviser to the grand jury.
Prosecutors run the show. For this reason, Sol Wachtler, New York’s former chief judge, famously observed that a prosecutor could get a grand jury to “indict a ham sandwich”.
Should You Testify?
While your persuasive testimony might cause a grand jury not to indict you, ending the case at an early stage, you should carefully consider whether testifying is worth the risk.
The risk of indictment is always high, even if you testify persuasively, because grand jury procedural rules, as discussed above, heavily favor the DA.
If you get indicted after you testify, the DA can use your grand jury testimony against you at trial.
At trial, the DA will highlight each inconsistency (there always will be inconsistencies) between your grand jury testimony and your trial testimony, and argue to the jury that the inconsistencies prove that your trial testimony is a lie. The prosecutor won’t gain this weapon if you don’t testify at the grand jury.
So, by testifying at the grand jury, you risk worsening your chance of winning at trial if you’re indicted. But by not testifying, the defendant risks losing a chance to beat the case without having to go to trial.
Every defendant who decides whether to testify before a grand jury should carefully consider, with advice of counsel, whether to take the risk of testifying. Sometimes the decision is very difficult to make.
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