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.
NOT A TRIAL
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.