August 19, 2013

The Law and You: Aug. 18, 2013

By PENNY CLUTE, The Law and You

---- — The grand jury has a long history, as it was one of the rights recognized by England’s King John in the Magna Carta in 1215. 

It was created as a safeguard against the power of the king. The Sheriff of Nottingham, for example, could not lock up Robin Hood for robbery without the crown prosecutor presenting evidence to a grand jury and that body voting an indictment.

It still serves as a restraint on governmental power. New York state has a constitutional guarantee that a person cannot be held for trial on a felony unless a group of citizens hears evidence and decides that there is “reasonable cause to believe” that the defendant committed the crime. 

This is to ensure that serious charges are based on evidence and are not arbitrary or due to favoritism or bias.


A grand jury is larger than the trial, or petit jury; it is required to have at least 16 members but no more than 23. 

Grand jurors are selected at random by the jury commissioner from various lists, including those for driver’s licenses and voter registrations. There is no questioning process like there is before a trial juror is seated. A grand jury sits for a defined period of time, which could be months, and hears evidence on whether there is reasonable cause to indict in many cases during that period.


This body has two important functions: The first is to hear evidence presented by the district attorney’s office and determine whether it is sufficient to charge the defendant with one or more felonies. 

After hearing the evidence, if at least 12 grand jurors find that there is “reasonable cause,” an indictment is filed with the court. This is the document bearing the formal charge, and it commences the court process.

At least 12 votes are required to indict, regardless of the number of grand jurors present. If fewer than 12 vote for indictment, the case is dismissed. It can only be resubmitted to a grand jury if a judge authorizes it.


The other grand jury function is an investigatory one regarding public servants. As stated in New York law, one of the functions of the grand jury is to “hear and examine evidence concerning misconduct, nonfeasance and neglect in public office ... and to take action with respect to such evidence ...” 

Its investigations can result in criminal charges and/or recommendations for disciplinary action against a public servant and proposals for legislative, executive or administrative action.

Although its members are sworn in by a judge and it hears evidence presented by a prosecutor, the grand jury is independent of both. It can issue subpoenas for witnesses to appear before it, separately from those the district attorney calls, if it chooses to do so.


The defendant and defense attorney can be present in the grand jury room only during the defendant’s testimony, not that of other witnesses. The defendant has the right to testify, but cannot be forced to do so. 

The only people in the grand jury room are the prosecutor, the court stenographer and the grand jurors. This may be surprising, but remember, this is not a trial; it is a proceeding to decide whether charges should be brought. 

If they are, if an indictment is voted and filed, then the defendant has all of the trial rights.


The prosecutor is the legal adviser to the grand jury, presenting evidence through witnesses and documents and defining the legal charges the grand jury should consider.

Once the evidence and legal instructions are given, the prosecutor and court stenographer must leave the room; they are not present during the deliberations of the grand jury. 

Once the grand jury votes, the foreperson knocks on the door, letting the prosecutor know they have finished their decision-making.

Grand jury proceedings are secret. It is a crime for a member of the grand jury, the district attorney’s office, the court stenographer, an officer holding a witness in custody or an attorney for a witness to reveal the nature or substance of anything that took place in the grand-jury room.

Penny Clute has been an attorney since 1973. She was the Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until she retired in January 2012.