The protests against a Staten Island Grand Jury’s decision not to indict police officer Daniel Pantaleo for any offense after the death of Eric Garner have raised questions about grand juries. So what is a grand jury and what do we know about the Staten Island hearing?
If you have received mail stamped “Commissioner of Jurors” calling you to serve on a grand jury you probably don’t need to read any further.
New York State’s Constitution provides, in Article 1 (Bill of Rights), section 6, that, “No person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury . . . [unless the accused and the district attorney agree to waive this safeguard]. For “capital or otherwise infamous crime” now read “felony” (an offense with a sentence greater than one year’s imprisonment).
Grand jury procedure is governed by Article 190 of the Criminal Procedure Law (CPL). As its name suggests, a grand jury (Law French) is the large jury (16 to 23 jurors) and the petit jury, used at trials, is the small one, with 12 jurors. The grand jury is drawn up (impaneled) by, and reports to, a judge of the court where any subsequent trial would take place. Its function, in this context, is to hear and examine evidence concerning offenses. Usually, a grand jury sits for month, or longer if there are still matters before it. It will hear evidence in all the cases the district attorney wants to proceed on in its month. The Garner grand jury was an exception, impaneled just for that case. Each county has its own grand juries.
A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of its county.
A grand jury needs 12 votes for any decision it makes. It may indict a person for an offense if it finds two things: (a) the evidence before it is legally sufficient to establish the subject committed the offense; and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed the offense.
Note that the standard of proof is less than that at a trial, which is, of course, beyond a reasonable doubt.
If the grand jury does not find both prongs it must dismiss the charge.
The proceeding is one-sided. The district attorney (almost always an assistant) chooses what witnesses and other evidence to bring to the grand jury. Only the district attorney and grand jurors can ask questions of the witnesses.
Any witness the district attorney calls receives immunity from prosecution for anything that is the subject of his testimony. The grand jury has power to order the district attorney bring other witnesses before it but such witnesses must waive immunity before testifying. The subject of the investigation has a right to testify as well but must waive immunity before doing so. The district attorney may cross-examine. It is uncommon for subjects to testify but in the Garner case Officer Pantaleo did exercise that right.
A witness who has waived immunity may have a lawyer present but only to confer with. When the witness’s testimony is complete the witness and lawyer must leave the grand jury room.
It is the district attorney, not the supervising judge, who advises the grand jury whether the evidence is legally sufficient, while the grand jurors decide if there is reasonable cause to believe such person committed it. The district attorney chooses what charges to present to the grand jury. The influence of the district attorney is sufficiently great that Sol Wachtler, a former Chief Judge of the New York State Court of Appeals (the State’s highest judicial officer, and one who knew both sides of the bench!) notoriously said in a 1985 interview that any prosecutor who wanted to could get a grand jury to indict a ham sandwich.
Secrecy
Section 190.25 of the CPL provides that grand jury proceedings are secret. That includes the identities of the grand jurors and witnesses. No grand juror, or other person associated with its proceedings such as the warden, stenographer, district attorney, etc. may disclose anything about the proceeding without a court order. Unlawful disclosure is a felony.
Note, however, that a witness is allowed to disclose his or her own testimony. Reportedly, the witness in the Garner case who took the first video of the confrontation has come forward and grumbled that he did not receive much of a hearing and that the grand jurors seemed inattentive.
These are the reasons for grand jury secrecy, which dates from English practice centuries old: Secrecy prevents witness tampering; secrecy encourages reluctant witnesses to testify; secrecy decreases the likelihood of flight by suspects; and secrecy protects the innocent whose names may be implicated in a grand jury investigation but who will never be indicted.
On December 4, 2014, Judge Stephen Rooney, the Garner grand jury’s supervisory judge, ordered the release of limited information (but not transcripts of testimony or exhibits) about the proceeding. The district attorney had sought the release. Judge Rooney noted that much of the information had been widely reported already.
In his decision he wrote that the district attorney had sustained his burden of establishing the existence of facts warranting limited disclosure in the interest of assuring the public that the relevant evidence was presented to the grand jury impaneled for the sole purpose of deciding whether reasonable cause existed to charge anyone with a crime in connection with the death of Eric Garner.
He added that public confidence in the evenhanded application of fairness and impartiality among a diverse citizenry was being questioned, and that he deemed a limited incursion into the grand jury secrecy necessary to serve the overarching public interest.
As a result of his order we know this:
The Garner panel sat for nine weeks; jurors heard from 50 witnesses, 22 of whom were civilians. The remaining witnesses were police officers, emergency medical personnel and doctors. Sixty exhibits were admitted into evidence, including four videos, records of NYPD policies and procedures, medical records pertaining to Garner’s treatments, autopsy and on-scene photos and NYPD training records.
We also know that the grand jury received instructions on the relevant principles of law, including the Penal Law, regarding a police officer’s use of force in making an arrest.
At least four other parties are now seeking publication of the complete minutes of the hearing.
