Should You Testify at the Grand Jury?
If you’re accused of a felony in New York, you might have the right to testify at the grand jury. However, testifying is risky. You must understand how the grand jury works to understand the risks of testifying, and the risks of not testifying.
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 the grand jury. When the DA finishes presenting evidence, the grand jury votes whether to indict. If the grand jury votes not to indict, the case usually ends there. If the grand jury votes to indict, the case continues towards 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.
Comparing grand jury proceedings to trials is a useful way to understand how the grand jury functions, how the grand jury favors prosecutors, and why testifying at the grand jury is risky for a defendant.
First, the prosecutor does not need a unanimous verdict from the grand jury.
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.
Second, the standard of proof at the grand jury 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.
Third, defense counsel doesn’t get to cross-examine witnesses at the grand jury.
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 appear before the grand jury 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 at the grand jury, the DA gets to cross-examine the defendant. Yet one more reason why it’s easy to get indicted.
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.
The grand jury is not a “level playing field”, the way a trial is designed 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 the grand jury’s legal adviser.
Prosecutors run the show at the grand jury. 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”.
While a defendant’s persuasive testimony might cause a grand jury not to indict, ending the case at an early stage, the defendant must carefully consider whether testifying before the grand jury is worth the risk. The risk of indictment remains very high, even when a defendant gives persuasive testimony.
When a defendant gets indicted after having testified at the grand jury, the District Attorney can use the defendant’s grand jury testimony against the defendant at trial. For example, at trial, the DA can highlight each inconsistency (there will always be some) between the defendant’s grand jury testimony and the defendant’s trial testimony, arguing at trial that these inconsistencies prove that the defendant’s trial testimony is a lie. The prosecutor won’t gain this weapon if the defendant doesn’t testify at the grand jury.
So, by testifying at the grand jury, the defendant risks worsening his chance of winning at trial. But by not testifying at the grand jury, the defendant risks losing a chance to beat the case without having to go to trial.
Every defendant whose case is presented to the grand jury must carefully consider, with the advice of counsel, whether to risk testifying.
Bruce Yerman is a New York City criminal defense attorney.