The Grand Jury Process in New York: Your Rights and Whether to Testify

When a person is charged with a felony, the case usually must go before a grand jury in New York before it can move forward. The grand jury stage is one of the most important, and most misunderstood, parts of a felony case. It is also one of the few chances a defendant has to tell their side of the story before an indictment is filed, and deciding whether to testify before the grand jury is one of the most consequential choices in the case.

At Sharifov & Associates, PLLC, we guide clients through the grand jury process in New York City and on Long Island, including the critical decision of whether to testify. This article explains how the New York grand jury process works, what rights defendants have, and how we approach the decision to testify. For a shorter overview, see our plain-English guide, What Happens at a Grand Jury in New York?

What Is a Grand Jury in New York?

A grand jury is a panel of 16 to 23 ordinary citizens who hear evidence presented by the prosecutor and decide whether a person should be formally charged with a felony. The grand jury does not decide guilt or innocence. It decides only whether there is enough evidence for the case to proceed to trial.

The grand jury is meant to be a check on the government. It prevents a person from being put on trial for a felony based only on the word of the police or the prosecutor.

The Right to a Grand Jury in New York

Under the New York State Constitution, a person generally cannot be prosecuted for a felony unless a grand jury votes to indict. (Learn more: Felony)

A defendant may choose to waive this right and be prosecuted instead by a Superior Court Information (SCI):

• Requirements. A waiver requires the prosecutor's consent and a written waiver signed by the defendant in open court.
• Exception. Waiver is not allowed when the charge is a class A felony punishable by life imprisonment (CPL 195.10).
• Common use. A waiver is most often used to carry out a negotiated plea agreement.
• Trial right. A defendant prosecuted by an SCI keeps the right to a trial.

How the New York Grand Jury Process Works

1. Arrest and felony complaint. A felony case usually begins with an arrest and an arraignment on a felony complaint in NYC Criminal Court or, on Long Island, in District Court. At the arraignment, the prosecutor typically serves notice that the case will be presented to a grand jury. (Learn more: Arraignment)

2. The 120-hour rule. If the defendant is held in custody on a felony complaint, the prosecution generally must obtain grand jury action within 120 hours of the arrest (144 hours when a weekend or holiday intervenes), or the defendant must be released, with limited exceptions (CPL 180.80). If the defendant is not in custody, the case may be presented later, subject to speedy trial time limits.

3. The presentation. The prosecutor presents evidence, usually by calling witnesses such as the complaining witness and police officers, and introducing documents and other evidence. Grand jurors may ask questions. The prosecutor also acts as the grand jury's legal advisor and instructs the jurors on the law.

4. Secrecy. Grand jury proceedings are secret, and no judge is present. The defendant and the defense attorney are not present during other witnesses' testimony and cannot hear or read that testimony beforehand. The only time the defense is in the room is when the defendant testifies.

5. The vote. At least 12 grand jurors must vote to indict. To indict, the grand jury must find legally sufficient evidence and reasonable cause to believe that the defendant committed the offense (CPL 190.65).

Grand Jury Outcomes: Indictment, No True Bill, or Reduced Charges

Indictment ("true bill"). The grand jury votes to charge the defendant with one or more felonies. The case then moves to Supreme Court in New York City or County Court on Long Island, where the defendant is arraigned on the indictment. If the defendant has not yet been arrested or arraigned, the court may issue a warrant. (Learn more: Warrants)

Dismissal ("no true bill"). The grand jury finds the evidence insufficient, and the charges are dismissed. The prosecutor may present the case to another grand jury only with the court's permission (CPL 190.75).

Reduction to misdemeanor charges. The grand jury may find that the evidence supports only a misdemeanor and direct the prosecutor to file misdemeanor charges in a local criminal court (CPL 190.70). For example, in an assault case, if the grand jury does not believe a dangerous instrument was used, it may reject the felony charge of assault in the second degree and direct the filing of a misdemeanor assault charge instead. The case then returns to NYC Criminal Court, a Nassau or Suffolk District Court, or a local city, town, or village court. (Learn more: Misdemeanor)

Your Right to Testify Before the Grand Jury (CPL 190.50)

New York law gives a person facing felony charges the right to testify before the grand jury (CPL 190.50). This is a significant protection, because the federal system does not give defendants the same right.

Preserving the right: grand jury cross-notice. To preserve the right to testify, the defense serves the prosecutor with written notice of the defendant's intent to testify, often called cross-notice. It is usually served at the arraignment on the felony complaint, and it must be served before an indictment is filed. The prosecutor must then notify the defense of when and where the case will be presented and give the defendant a reasonable opportunity to appear.

If you have not been arraigned. The prosecutor's duty to notify you applies only if you have been arraigned on a felony complaint. Prosecutors can present a case to a grand jury before any arrest, without telling the person under investigation. If you believe you are under investigation, a lawyer can contact the prosecutor and request an opportunity to testify.

If the right is violated. If the prosecutor obtains an indictment without honoring a properly served notice, the indictment can be dismissed. But the motion must be made within five days after the arraignment on the indictment, or the objection is waived. This is one of the reasons experienced counsel matters from day one.

Requesting defense witnesses. A defendant may also ask the grand jury to hear from other witnesses. The grand jury decides whether to call them.

Should You Testify Before a Grand Jury? The Benefits

Testifying can be powerful in the right case:

• The grand jury may dismiss the case. If the grand jurors believe the defendant, they may vote a no true bill, and the case ends before it ever reaches trial.
• The grand jury may reduce the charges. Testimony can lead the grand jury to indict on lesser charges or to reduce a felony to a misdemeanor.
• The grand jury hears your side. The prosecutor is not required to present all evidence favorable to the defense. Your testimony may be the only way the grand jury hears your account, including facts that support a defense such as self-defense or lack of intent.

The Risks of Testifying Before a Grand Jury

Testifying also carries serious risks:

• Waiver of immunity. In New York, a witness who testifies before a grand jury normally receives automatic immunity from prosecution for the matters testified about. A defendant who testifies must give up that protection by signing a waiver of immunity. Anything the defendant says can then be used against them later.
• Testimony under oath. The defendant testifies under oath. A false statement can lead to a separate perjury charge.
• Questioning by the prosecutor and grand jurors. After the defendant's statement, the prosecutor may question the defendant, and grand jurors may ask questions too. An experienced prosecutor may draw out damaging admissions or details that strengthen the prosecution's case.
• Limited role for defense counsel. The defense attorney may be present in the grand jury room to advise the defendant but may not object to questions or address the grand jury (CPL 190.52).
• The defense is revealed early. If the grand jury indicts anyway, the prosecution will know the defendant's version of events before trial. The defendant is effectively locked into that account, and any inconsistency at trial can be used to challenge their credibility.

How Our Grand Jury Lawyers Decide Whether You Should Testify

Everything a client tells their attorney is protected by attorney-client privilege, so we ask clients to be completely honest with us. That honesty is essential to deciding whether testifying will help or hurt.

When we believe grand jury testimony may help, we conduct a mock grand jury session. One of our attorneys plays the prosecutor and questions the client aggressively, testing for inconsistencies and weak points. Other attorneys act as grand jurors and judge the client's credibility.

We recommend testifying only if our team concludes that the client will be a credible, effective witness. When a defendant's account is weak, or the defendant is guilty of even part of what is alleged, testifying is often a serious mistake, because prosecutors can use the questioning to fill gaps in their case.

Federal Grand Juries and Target Letters

Federal felony cases also require a grand jury indictment unless the defendant waives it. Federal grand juries likewise have 16 to 23 members, and at least 12 must vote to indict. But there are important differences from New York:

• No right to testify. A federal defendant or target has no legal right to testify. Under Justice Department policy, prosecutors may allow a target to testify on request, but it is rarely advisable.
• No lawyer in the room. Defense counsel may not enter a federal grand jury room. A witness may step outside to consult with counsel.
• No automatic immunity. Unlike in New York, federal grand jury witnesses do not receive automatic immunity. They must assert their Fifth Amendment privilege question by question unless the government grants immunity.
• Target and subject letters. Federal prosecutors often send a "target letter" to a person who is a focus of the investigation. If you receive a target letter or a grand jury subpoena, speak with a lawyer before responding.

Talk to a Grand Jury Lawyer in NYC or Long Island

The decisions made in the first days after a felony arrest, including whether to serve cross-notice and whether to testify, can shape the entire case. If you or a loved one is facing a felony charge or a grand jury investigation in New York City, on Long Island, or in federal court, contact Sharifov & Associates, PLLC for a confidential consultation.

This article is general information, not legal advice. Prior results do not guarantee a similar outcome.