Crime, Practice Pointers

Never Show Your Hand, Or Why Not To Testify In The Grand Jury

But when a client testifies in the grand jury and it works, there's no quicker way to end a prosecution. 

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Working as a defense attorney is like playing poker — hold your cards close until you have to reveal them, otherwise you’re likely to lose.

This particular approach applies especially to determining whether or not your client should testify in the grand jury.  Conventional wisdom among defense attorneys is — don’t. The grand jury is a tricky animal and one to engage only with great caution.

When a person is arrested and charged with a felony crime, he has the option of testifying (telling his story) to the grand jury.  (In some cases, although not common in New York, the grand jury indicts the person before he is arrested.  In this circumstance, the defendant loses his option to testify.)

Counsel generally first meets his client after he has already been arrested and when he is waiting to see a judge at arraignments.   Counsel knows practically nothing about the strength of the charges at this point.  Hence, the defense attorney holds very few cards.  The prosecutor, on the other hand, holds all of them.  He knows what led to the arrest, what the scene of the crime looked like, who the witnesses are, and what they say happened.  He also knows how they’ll come across to a jury.  All the defense attorney has is whatever his client may have admitted to in a quick chat in a jail cell behind the court.  But is what the client said accurate?  There’s no way to know at this early stage.

Only a bullet-proof defense should go to the grand jury, otherwise the defendant will be stuck with whatever story he tells at this early stage of the game. Whether his defense is “drug deal gone bad” or mistaken identification, should a better defense present itself as the case develops, the defendant will be bound to the same story he told the grand jury.  By having shown his hand to the prosecutor, the prosecutor will then work his or her hardest to undermine everything the defendant said. The inconsistencies, even if minimal, will be exploited to the max.  If the defendant exaggerated about, let’s say, having a full-time job when he really only worked part-time (even if irrelevant to the crime), that mistake will be used to show he’s a liar.

The grand jury is not a trial.  The burden of proof is so low that a proverbial ham sandwich could be indicted.  The prosecutor need only show that the defendant could have been involved in the crime, not that he was.  The burden of “proof beyond a reasonable doubt” (our country’s highest burden of proof) only applies at trial, not before.

Another problem with the grand jury is that the defense attorney’s role is neutered.  Although he can be there, he might as well be there in a straight jacket and a muzzle.  He is not allowed to speak on the record or even object to the most egregious oversteps in cross-examination by the prosecutor.  There is no judge, so given the chance to cross-examine the defendant unfettered, the prosecutor will do her best to make your client look like a liar.  From asking about every past arrest, bad act, and criminal conviction to what he ate for breakfast, the prosecutor’s questions will drip with sarcasm and tip the grand jury off to the fact that she, for one, does not believe anything he says.

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In my anecdotal chats with prosecutors, most of the cases presented to the grand jury get indicted.  Cases when defendants testify get indicted slightly less frequently, but still the majority get indicted.  You might think of the grand jury more as a rubber stamp for the prosecution as opposed to a jury of one’s peers.

The best cases to go in the grand jury are those where the defendant either has no criminal history or where he has a great story to tell.

I find these cases mostly involve cops and small amounts of drugs.  If an undercover cop is the prosecutor’s main witness and the defendant explains how he was minding his own business when the undercover approached him and begged for help to buy drugs, the grand jurors might vote a “no true bill.”  They might also indict the defendant only for the misdemeanor “facilitation” as opposed to a felony sale — still a win.

When a client testifies in the grand jury and it works, there’s no quicker way to end a prosecution.  But when it doesn’t, the client will be stuck with whatever mistakes he made for the rest of the case (and sometimes his life.)

One more thing.  When the client testifies and is indicted anyway, many prosecutor offices will no longer plea bargain.  He lied in the grand jury, is their common refrain, now we’re not offering anything.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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