How a Grand Jury Works in New York State

“The People’s Panel”

The institution of the grand jury has a significant place in the criminal justice system. Sometimes known as the “people’s panel,” the grand jury is empowered to determine whether there is probable cause to indict individuals on serious criminal charges.

Both the constitution of the United States (as part of the 5th Amendment) and by the New York State constitution (in Article 1, Section 6) recognize this fundamental role of a grand jury in deciding whether there is enough evidence to justify the filing of criminal charges.

Like individuals summoned to serve on a jury during a criminal trial (a petit jury), the grand jurors serve to bring the perspective of ordinary citizens into the criminal justice system. But a grand jury plays a substantially different role, and under different procedure and conditions, than does a trial jury.

In New York, unless a defendant decides not to insist on the requirement, he or she cannot be charged with a felony (a criminal offense that can bring more than a year in prison) unless a grand jury has produced an indictment.

Rules of the Grand Jury Proceeding

In a grand jury proceeding, judges, defendants, defense lawyers and the public are not present. Potential defendants who learn of a grand jury probe may ask to appear as witnesses, and a defense lawyer can attend only the defendant’s testimony and cannot raise objections, ask questions, or address the grand jury. Evidence rules are much less stringent, allowing the grand jury to see evidence that might not be admissible at trial.

Further, a grand jury doesn’t decide on the ultimate guilt or innocence of any defendant, and it operates in secrecy. In fact, unauthorized disclosure of grand jury proceedings is illegal, for several reasons: to encourage candid testimony, shield witnesses from retaliation, and protect the reputation of persons who are investigated but not indicted.

Typically, 23 citizens are called to serve for about a month on a New York grand jury (16 members is the minimum; a federal grand jury will similarly have between 16 and 23 members). By contrast, felony trial juries have 12 members. Grand jury decisions on whether or not to indict do not have to be unanimous, but at least 12 members must vote to return an indictment.

The Prosecutor’s Advantage

Prosecutors, who present the evidence and explain the law to grand jury members, regularly succeed in persuading grand juries to hand up indictments. In legal circles, there’s a saying that a skilled prosecutor can persuade a grand jury to “indict a ham sandwich” – which may be only a slight overstatement.

While the main purpose of grand juries is to hear evidence presented by a prosecutor against specific individuals and decide whether there are adequate grounds for filing criminal charges, they can occasionally have other functions. For example, federal special-purpose grand juries are sometimes empaneled for wide-ranging investigations of such subjects as government corruption or organized crime.