This is the second part of a multi-part blog post about how the Grand Jury in New York works and whether a defendant should testify in the Grand Jury. This is written for laypeople to understand and deliberately avoids legalese jargon to make it easier to comprehend. It also is not intended to serve as legal advice. The decision to testify in the Grand Jury is an important one and you should not substitute this post for the advice of an actual lawyer. If you want legal advice, hire a lawyer. With that said, Part One briefly described what the Grand Jury does and how it differs from a petit jury (also known as a trial jury). Part Two will focus on the actual logistical differences between the two kinds of juries and will address why the decision to testify at the Grand Jury involves a different kind of analysis than the decision to testify at trial.
As I stated previously, the purpose of the Grand Jury is to determine whether there is enough evidence to accuse someone of a crime. If there’s enough, the Grand Jury votes an indictment. This is different than a trial jury which exists to determine whether there’s enough evidence to actually convict the defendant. So there’s clearly a difference in purpose. But what about the logistics of how the Grand Jury proceeding is conducted and the built in tactical disadvantages associated with the proceeding?
Most people are familiar with how a jury trial works. We can thank Law & Order, Perry Mason, any million movies, etc, for that. But few people are familiar with the Grand Jury. Most people know that a trial, you have a judge, a prosecutor, a defense attorney, the defendant, and so on. They also know that trials have opening statements, direct examination of witnesses, cross-examination of witnesses, closing statements (also known as summations), and so on. Lastly, most people also know that trials are open to the public, which means anyone can watch what’s happening. This is all of legal significance to a criminal defendant who is on trial. To put it succinctly, a criminal defendant can watch the entire trial unfold and doesn’t have to make the decision to testify until the defense is about to rest its case (if it chose to put on one). This happens right before closing statements. This means that the defendant will know what the case against him or her is before choosing to testify. He also will know why the prosecutor is cross-examining him in a specific manner.
Compare this with a Grand Jury. In a Grand Jury, the proceeding is secret as a matter of law and the defendant does not have get to watch any of the evidence that was presented against him or her. The defendant is figuratively kept in the dark about the case. If he or she elects to testify, he or she walks into the Grand Jury chamber with their lawyer, takes an oath to tell the truth, makes a statement, gets cross-examined by the prosecutor and then walks out without any idea of what just happened. Without knowing the significance of the prosecutor’s questioning and how the defendant’s own testimony could corroborate or contradict other evidence, the defendant is left in a very vulnerable situation.
There are two other major disadvantages that a defendant has in the Grand Jury. One, is he or she gets cross-examined, but his or her lawyer doesn’t have the ability to cross-examine the prosecutor’s witnesses. So while the prosecutor gets to put on one-sided evidence that isn’t checked, the defendant doesn’t have that luxury because everything he or she says is subject to cross-examination. The second major disadvantage is that the defendant’s lawyer hasn’t had a chance to investigate the case yet and the litigation process hasn’t gone through discovery yet. Meanwhile, the prosecutor could have been investigating the case for months or even years before the defendant even knew he or she was the target of an investigation. Moreover, the Grand Jury could have been hearing witnesses for quite some time before the defendant takes the stand. In addition, because the prosecutor runs the Grand Jury, a defense attorney has no mechanism to get the Grand Jury to hear the favorable evidence to the defendant.
Part Three will tie this all together, but the big take away in Part Two is that there are four serious causes for concern when a defendant wants to testify: (i) he or she has no idea what the evidence presented actually is and the testimony is in the dark; (ii) the defendant gets cross-examined, but his or her lawyer doesn’t get to cross examine the prosecutor’s witnesses; (iii) the defense lawyer hasn’t had an opportunity to find and develop evidence that could corroborate the defendant’s testimony; and (iv) the lawyer has no mechanism to get the Grand Jury to hear other evidence that corroborates the defendant’s testimony.