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How New York State Grand Juries Work... 

Prof. Brenner,

Let me introduce myself.  My name is Bob Kaye, and I am a Deputy District Attorney in the Kings County District Attorney’s Office, www.brooklynda.org,  located in Brooklyn, New York. I was very pleased to discover your Website and found the various letters, articles and other linked sites very informative. I am writing this letter as an individual with experience with the New York State grand jury system and not on behalf of the Kings County District Attorney’s Office.

I have just completed serving as a member of a panel appointed by Judge Judith Kaye, the Chief Judge of the State of New York, to review the plight of grand jurors. It was not, however, within our mandate to review or comment upon the grand jury system as it is practiced in this State.

The issue of the plight of grand jurors came about for two reasons. First, Judge Kaye had previously appointed a panel to review the petit jury system. That group made several recommendations which, when implemented, significantly changed, and modernized, the petit jury system in this State. She wanted to make similar improvements for the grand jurors.

Second, in many larger counties in this state, such as my own, grand jurors are impaneled for the term of the court (four weeks) and sit every day, morning and afternoon, for 20 consecutive weekdays. We have six such grand juries in Kings County, in addition to which there may be several "holdover" or extended grand juries. This means that, at any one time, at least 138 grand jurors "are sitting." During the course of the year, 1,794 jurors (thirteen four-week terms of the Court) will serve approximately 35,868 juror days (20 days to a term, less 12 legal holidays). This causes a hardship for many jurors who voice their concerns to the Chief Judge.

The result of the panel’s work was a report issued to the Chief Judge. [This report is on the Internet at "www.courts.state.ny.us/gjrr.html"] The report contains approximately fifty recommendations to improve the conditions under which grand jurors serve. These recommendations include, among others: creating grand jurors’ handbook, changing the notification process, making the Court system more responsible for the grand jury facilities and amenities, better utilizing grand jurors’ time, and establishing pilot programs around the State to reduce the length of service.

As mentioned previously, however, what was not considered was an alternative to the grand jury system.

With that as a background, and using your law review article as a starting place, I would like to make several comments about the New York State grand jury system, and more specifically, as it operates in Kings County.

Although at one point in time, it could be said the grand jury system was a rubber stamp of the DA [Judge Sol Wachtler, the former Chief Judge of the State, was quoted as saying, "A grand jury would indict a ham sandwich," (See People v. Carter, 77 N.Y. 2d 95, 107 & n.1 (1990) (Titone, J., dissenting); In re Grand Jury Subpoena, 144 Misc. 2D 1012, 1016 n.1 (Sup. Ct. N.Y. County 1989)], that has not been true for many years, at least not in Kings County. Changes to the composition of the pool from which grand jurors are chosen are largely responsible for this phenomenon.

A long time ago, in order to be eligible to sit on a grand jury, one either had to have previous grand jury experience or, at least, some previous petit juror experience. That is no longer true. Grand jurors today are selected from the same pool as petit jurors.

A New York State grand jury can take one of several actions: file an indictment (for misdemeanor or felony charges), vote a "No True Bill" (dismiss the case), return the case to Criminal Court (file misdemeanor charges only and refer the case back to the lower court), or remove the action to the Family Court (file charges against a juvenile ages 13-15 to be prosecuted in the Family Court rather than treat the juvenile as an adult to be prosecuted in the superior court). In the first six months of this year our grand juries have taken the following actions:

Indictments

2,815

75%

SCIs

613

16%

Removed/Returned

69

2%

Dismissed

251

7%

Total

3,750

100%

An SCI refers to a Superior Court Information which, in this State, is a method by which a defendant waives prosecution by indictment. It is ordinarily associated with a pre-arranged disposition. It can only be utilized if the defendant agrees to waive the indictment and cannot be forced upon the defendant.

As can be seen from above, 9% of the presentations to the grand jury result in dismissals and removals. Of this 9%, 2% are referrals to the jurisdiction of other courts. Of course, it is true that a large number of the cases so removed were done at our request. The 7% dismissal rate, however, suggests that grand juries of this County are not mere rubber stamps of the DA’s office. Although some of the dismissed cases are not unexpected, more and more cases are being dismissed by the grand jury in their role of, as you put it, "the voice of the community."

Some of these dismissals are understandable. The defendant testifies and presents an issue of fact for the jury to decide. I take no issue with this because if we cannot convince 12 out of 23 to indict, we will not convince 12 of 12 to convict. On the other hand, sometimes grand juries fail to vote an indictment because they are annoyed at a system that keeps them in a less than ideal setting for long periods of time, often past their schedule hour of service. As the most visible representative of the system they have come to detest, the prosecutor suffers the effect of this ill will. You have heard of road rage; this is grand juror rage.

In addition, however, some of the dismissals are as a result of quorum problems. In order to indict someone, the Criminal Procedure Law requires a vote of twelve jurors for A True Bill. With a full panel of 23 grand jurors, there only need be a vote of 52% to indict. Should that grand jury loose members, the percentage needed for indictment increases. In other words, the small the number of grand jurors the more difficult it is indict. For example, if due to the length of the term, the number of grand jurors was reduced from 23 members to 18 members, a vote of 67% would be needed to indict.

The grand juries who were "passive bodies . . . utterly dependent upon the prosecutors" no longer exist in this county and perhaps not elsewhere in New York City, but yes, some do exist elsewhere in the State.

Simply because grand jurors are selected from the same pool of people as the petit jurors, does not, however, mean that they are "randomly selected". I disagree with the statement, "After excusing any for whom service would present a hardship or be otherwise inappropriate, the court identifies and impanels the jury. This guarantees that jurors are randomly selected . . ." In my opinion, this does not guarantee a random selection. The practice in some jurisdictions is to ask, "Who cannot sit for the term?" If the remainder is sufficient to fill the needs of the grand juries, all is well; if not, the balance is randomly selected. The Grand Jury Panel criticized this method of selection as non-random and recommended that it be changed.

Of course the problem with true random selection is that you get people who do not want to sit, or really cannot sit, for the full twenty days. Mandating their service results in disgruntled grand jurors who react by refusing to vote for any action and/or fail to attend on a regular basis. This very frequently leads to quorum problems during the term. There are many times that we have to transfer jurors from one jury to another in order to keep a quorum.

More often than not, the people that sit as grand jurors in New York City are those whose jobs pay them even while they serve on the grand jury (such as people employed by the government or who work for utility companies), people who are unemployed and will still collect unemployment and/or social services checks, or people who can otherwise afford to take twenty days out of their lives. Whatever you might call it, it is certainly not a random selection. It is our hope that the pilot project for this county, which will reduce the term of service from four weeks to two weeks, will create a larger jury pool and a more random selection of jurors.

Your article’s concentration is mostly on the Federal system. I cannot blame you for being less than enchanted by a system which allows wholesale hearsay testimony. However, as you correctly point out, most of the State grand jury systems are not like the Federal system. Here in New York, as you might already know, we are bound to follow the rules of evidence, and only legally admissible evidence is permitted before the grand jury.

However, as your article also points out, most of the cases presented to an ordinary state grand jury are relatively factually and legally straightforward; and that creates our most serious problem.

In Kings County, about 40% of grand jury presentations are what are referred to as "buy and bust" operations (B&B). These involve the sale of a relatively small amount of heroin, cocaine or crack cocaine to an undercover police officer. The testimony is substantially the same in all such cases, and the charge is exactly the same. The presentation goes along the lines of:

 

"My name is undercover officer badge number 1243. On this date and time I approached an individual who I referred to as ‘JD Red Cap’ [since at the time of the transaction the officer does not usually know the name of the defendant, the officer refers to that person as JD, for John Doe, and then some descriptive term]. I had a drug related conversation with him. He showed me some tin foil packets of what I believed to be cocaine. I exchanged a certain amount of United States Currency for the tin foils. I later saw JD Red Cap in the precinct under arrest and I learned his name to be..... I sent the tin foil packets to the lab."

Following this riveting testimony is the testimony of the arresting officer who says:

"I placed someone under arrest identified to me by UC Officer 1243 as JD Red Cap. Upon arresting him I learned his name to be ..... I found an additional 12 tin foil packets of cocaine on his person. I sent the tin foil packets to the lab".

Then we introduce the lab report into evidence [Under NY law there is a hearsay exception in the grand jury]. The grand jury is then charged on the law regarding a B felony sale, possession with intent to sell and simple possession.

The next case sounds, looks and smells just like the case before except the name of the defendant is different (JD Blue Shirt). Sometimes, it is even the same undercover officer who is testifying since the officer often makes two, three, or even four buys during a single tour of duty.

Since all these cases involve undercover officers, security concerns mandate that they be presented to one of two juries impaneled for this purpose. This means that two grand juries per term hear almost exclusively buy and bust cases. In 1998 we filed 7,446 felony indictments. Of those, 2,957 (39.7%) were narcotic cases, almost all of which were B&Bs. That means that these two grand juries hear about 114 B&B cases per term, or about 6 a day. They may hear other police-witness-only cases as well, such as guns (567), Driving While Intoxicated (108), and other vehicle and traffic law felonies (162) [an average of about 7 cases per day], but their primary diet consists of B&B cases.

It is hard to imagine anything more routine and repetitious than to be on a narcotics grand jury for twenty consecutive days.

There are occasions in which defendants on B&B cases exercise their New York State statutory right to testify before the grand jury. Such defenses as entrapment, agency ("I was only the steerer, not the seller"), lack of acting in concert, identification (there was someone else there with a Red Cap, the cops arrested the wrong person) are made before the grand jury. And some of them are successful. But the vast majority are routine B&B presentations that result in indictments.

In fact, the vast majority of all cases are relatively factually and legally straightforward. So why bother to have a grand jury system which is based on the presentation of routine cases, almost all of which result in an indictment? Is it worth having such an expansive system whose only purpose is to screen out the occasional case that should not be indicted?

The grand jury system in New York State is very expensive. In Kings County alone, $1.4 million per year (35,868 juror days X $40 per day) is spent on grand jurors’ fees, not including the cost of administration, mailing subpoenas, paying grand jury wardens, selecting jurors, etc. We are only one of 62 counties in the State. Needless to say, the majority of counties do not have such a substantial expenditure, but many of the larger jurisdictions [New York County (Manhattan), Queens, the Bronx, Nassau, Erie (Buffalo), Westchester, etc.] do.

So then, what alternative could be devised to the current grand jury system in New York State? The alternative should avoid the expense and inconvenience of the current grand jury system, yet, at the same time, continue to protect the defendant from being unjustly accused.

I. Preliminary Hearings - One alternative would be an open, public preliminary hearing system. This proposal would not be an effective alternative in New York State.

1. This would be the obvious choice of the defense bar. However, the District Attorney’s Association would campaign vigorously against it. Not only does it subject our witnesses to another round of cross-examination, but it is very inconvenient to witnesses. In a grand jury setting, the DA schedules the witnesses and presentations. An open hearing would depend on the presence of defense counsel and defendant. This would only complicate matters and increase the risk of witness tampering and intimidation. In addition, how would undercover officers be presented in open court?

2. The court system would probably also be opposed to the open preliminary hearing. There are relatively few judges in the lower court where these hearings would be conducted. The Criminal Court is the court of original jurisdiction which processes all misdemeanor cases as well as the court in which the felony cases are first arraigned. Criminal Court is divested of jurisdiction of felony cases upon the announcement of an indictment. There are 100,000 filings a year in this court. There are barely enough judges to conduct all these arraignments within 24 hours of the arrest. For the first six terms of this year (24 weeks), there have only been 47 trials in that court in Kings County. Imagine trying to add thousands of hearings. It would simply overwhelm the resources of the court.

II. Prosecutor’s Informations - Another alternative would be the filing of a prosecutor’s information. It is my understanding that some jurisdictions allow the prosecutor, based upon sworn statements of the victim and/or witnesses (sworn affidavits or sworn police reports) to file charges in the superior court without a grand jury presentation or preliminary hearing. This process certainly would not be a suitable alternative for New York State because it provides no protection for the rights of the defendant.

This State prides itself, as it should, on providing enhanced protection to the defendant. That is why there is a statutory right which allows the defendant to testify before the grand jury. The prosecutor’s information format would eliminate the possibility of the defendant being able to present any evidence on his/her own behalf. In addition, it eliminates the direct presentation of evidence and the taking of sworn testimony. Even as a prosecutor, I consider it unwise to base the filing of felony charges in superior court simply upon an affidavit, or police report, of a victim or witness. There should be some sort of evidentiary proceeding in which testimony is taken before there is a finding as to whether the action should be held for the jurisdiction of the superior court.

What, therefore, would be an alternative to these three methodologies (grand jury, preliminary hearing or prosecutor’s information)? My suggestion would be to keep the grand jury system as it currently exists in New York State, but to significantly reduce the number of grand jurors from the current statutory requirement of 23, to a much lower number, as is the practice in the majority of states. An alternative to that plan would be to replace the grand jurors entirely with an independent magistrate. The proceeding might be described as either an ex parte preliminary hearing which is closed to the general public or a one person grand jury.

In this last model, all the same rules and laws that currently apply to our current grand jury system would apply to the magistrate system. The same secrecy provisions that apply to the grand jury would apply to the magistrate. The defendant would retain the same right to testify, with the presence of counsel, before the magistrate. Everything would be the same, except that the grand jurors would be replaced by one magistrate.

The advantages of such a system are numerous:

• It is much less expensive

• More cases could be presented in a shorter period of time • Grand jurors would not be forced to endure the tedium of repetitive presentations

• Without a grand jury system, more jurors would be available to the petit juror pool, which means that all jurors would have to serve less frequently

• Just as in a grand jury system, the decision of the magistrate would be reviewed by a superior court judge

• Just as in a grand jury system, the magistrate would have the right to ask questions and call witnesses. In some cases, this magistrate system would be an improvement over the grand jury system. The magistrate would probably be in a better position to know the appropriate questions to ask various witnesses, which a grand juror, even well-intentioned, usually is not.

There are, however, two potential major disadvantages to this type of system and both deal with the integrity of the magistrate to "do justice." One disadvantage is that a magistrate might hold a case for the superior court that a defense attorney would hope a grand jury would have dismissed. Second, a magistrate might hold a case for the superior court that a prosecutor would hope a grand jury would have dismissed.

An example of the first disadvantage is, sometimes a grand jury will dismiss a case which is legally sufficient and in which there is reasonable cause to believe the defendant committed the crime. If a grocery store owner is arrested for gun possession but testifies and documents that he had the gun because he has been robbed three times before and he applied for a pistol permit but it was denied, etc., a grand jury just might dismiss that case. But an independent magistrate would be less likely to dismiss that case.

A good example of the second disadvantage are instances when a prosecutor presents a case to the grand jury despite the expectation, or belief, that the grand jury will not indict. One consideration in making this determination may be that the decision to dismiss in certain cases ought to be made by the "voice of the community" rather than the voice of the DA. In this way the DA can stand behind the action of the grand jury but, at the same time, not divulge why the case was dismissed because the proceedings are secret. Doing away with the grand jury system eliminates this safety valve. The DA will then be forced to either dismiss the case on his/her own motion prior to the hearing, or risk an acquittal in the superior court.

Would an independent magistrate, whose proceedings are secret, but whose name is not, have the chutzpah (as we say in New York) to dismiss a case that a grand jury would have dismissed? I do not know the answer to this. However, does not the same problem confront the judge who is conducting the open in-court preliminary hearing?

Despite the fact that the defense bar in this State, and I gather from the substance of your article in other states as well, are outwardly hostile to the grand jury system as a rubber stamp of the DA’s office, in reality, it is my opinion that the defense bar, at least in this county, like the grand jury system. In more and more instances defense attorneys are having their clients testify before the grand jury, hoping to persuade the grand jury to dismiss the case before it gets indicted. This tactic is often successful. There would unquestionably be instances in which a magistrate would not dismiss a case against a defendant who testifies whereas a grand jury might have. This, however, does not necessarily mean that decision is "wrong".

Your article (page 87) discusses the secrecy of the grand jury as ". . . yet another opportunity for prosecutorial abuse and control." I do not agree with that concept. First of all, in New York State, our grand jury presentations are reviewed by a superior court judge upon a motion by the defendant to "inspect and dismiss" the indictment. So although the proceedings are secret during the course of the presentation, they are reviewed by a judge and are ultimately turned over to the defendant’s attorney for discovery purposes. There is another, more important, element to secrecy, which is that it provides the anonymity for a grand jury to dismiss a case which a judge, magistrate or another body, might not dismiss if open to the public. An additional benefit of secrecy is that it encourages witnesses to come forward and to testify truthfully.

One of the most difficult issues I have with this magistrate proposal is: who are these magistrates? Are they appointed or elected? What are their terms? How do we guarantee their independence?

All things considered, there are many flaws in the existing grand jury system, including the burden on the actual jurors, the expense of the system and the routine nature of the vast majority of most of the presentations. The big question is: Is the value of the system, the fact that they are the voice of the community, such an overwhelming favorable factor as to justify the continued existence of the system?

 

Below is a summary of our existing system and the possible alternatives to it

I. Existing Grand Jury System:

1. Secret

2. "Ex parte"

3. Review by an independent body

a. Jury of your peers?

4. Legally admissible evidence

5. Determination of credibility

6. Burden of proof

a. Reasonable cause to believe

b. Legally sufficient evidence

7. Sworn testimony taken by a reporter

a. Creation of Rosario material

8. Defendant’s right to testify with attorney present and produce witnesses.

9. Grand jurors can ask questions of the witnesses

10. Post indictment review by Supreme Court Justice

a. Motion to inspect and dismiss

11. Can grant immunity

II. What are the alternatives

1. Preliminary Hearings

2. Filing Superior Court Informations

III. Preliminary Hearings

1. Very time consuming

2. Requires a large increase of judiciary

a. Currently not enough judges to do trials

3. Defense bar would love it

4. Inconvenient for witnesses

5. DA’s would strongly oppose

a. Subjects witnesses to cross-examination

b. Increased possibility of witness intimidation

IV. Other Jurisdiction - Filing Superior Court Informations

1. No Grand Jury system

2. Filing by "Information"

3. Information is supported by sworn affidavits

a. UF 61 by the victim

i. I was robbed

ii. At gun point

iii. The defendant took money from my person

b. DD5 by Police officer

i. I showed the victim mug shots

ii. Victim selected the defendant

iii. I placed the defendant in a line-up

iv. Victim identified the defendant

v. I placed the defendant under arrest.

4. Based upon these sworn affidavits an information is filed.

Robbery 1° uses and threatens the use

Robbery 1° displays what appears to be

Grand Larceny 4° property from the person.

5. This system provides none of the protections of a grand jury system

a. No sworn testimony

b. No real independent review

c. No test of the credibility of any witness

d. No right of the defendant to testify or present his/her side

e. No legally sufficient evidence

i. Hearsay is admissible

f. No questioning of witnesses

V. Proposed System - Replace the Grand Jurors with a one person grand jury - a Magistrate

1. Secret

2. Ex parte presentation

3. Review by independent "magistrate" (JHO or retired Justice of the Supreme Court)

4. Legally admissible evidence

a. No hearsay

b. No inadmissible statements

c. No patently unlawful searches and seizures

5. Determination of credibility of witnesses

6. Burden of Proof

a. Reasonable cause to believe

b. Legally sufficient evidence

7. Sworn testimony taken by a reporter

a. Creation of Rosario material

8. Defendant has the right to testify with attorney present and call witnesses.

9. Magistrate can ask questions of witnesses

10. Post indictment review by Supreme Court Justice

a. Motion to inspect and dismiss

11. Same rules of immunity apply.

VI. Advantages of Proposed system

1. Keep grand juries for investigative cases only

2. Same concept as grand jury system only without the grand jurors:

a. Saves money

b. Saves inconvenience to the jurors

c. Saves space

i. you need much less space for 6 magistrates than you do for 138 jurors

d. Saves time and money for Commissioner of Jurors

e. Makes more jurors available for the Petit Juror pool thereby reducing the number of times a juror has to serve.

3. Maintains all the requirements of the grand jury system, but without the grand jurors.

a. Secrecy

b. Ex parte

c. Independent review

d. Reasonable cause to believe

e. Legally admissible evidence only

f. Determination of credibility of witnesses

g. Legally sufficient evidence

h. Sworn testimony - Rosario

i. Defendant has the right to testify and produce witnesses

j. Right of officer to independently question witnesses

k. Post indictment review by JSC.

VII. Disadvantages:

1. Would a magistrate have the integrity to dismiss a "tough" case that an anonymous grand jury would?

a. Questionable rape case

b. Questionable search and seizure

2. Would a magistrate be as sympathetic to a defendant’s testimony as grand jurors sometimes are?

 

 

Grand Jury System

Information

Magistrate

Secret

 

X

Ex Parte

 

X

Arbiter of facts

 

X

Jury of Peers

   

Reasonable Cause to believe

 

X

Legally admissible evidence

 

X

Credibility

 

X

Burden of Proof

 

X

Sworn Testimony

 

X

Deft’s rights

 

X

Questions

 

X

JSC Review

X

X

Immunity

 

X

 

Related Links:

Newly Appointed Committee to Target Grand Jury Reform in New York State

 

 

 

 

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