Thoughts on the Grand Jury ... by a Former Grand Juror (updated)

Today's Daily News has an interesting piece by Michael Aronson, who recently served on a Grand Jury in New York County.  Overall he appears to have had an unpleasant experience.  Among his complaints:

• The Grand Jury is a rubberstamp for prosecutors.  He cites the following statistic, "Of about 125,000 adult felony arrests in Manhattan in the last five years, grand juries have only dismissed charges three times."
• An A.D.A. refused to give him a written copy of the general instructions for grand jurors. 
• A.D.A.'s had to be reminded to leave physical evidence with the Grand Jury rather than taking it outside the room during deliberations.
• The Grand Jury was not provided with a copy of the Penal Law.
• Grand jurors were dissuaded from notetaking: "As for note-taking, which is fully permitted under the law, grand jurors are counseled against doing so and given three reasons why it's a bad idea."
• The instructions state that the Grand Jury "should" indict if it finds reasonable cause that the defendant committed a felony; however, the law states that the Grand Jury "may" indict.

The Grand Jury has certainly been no stranger to criticism that it is a rubberstamp for prosecutors.  However, I have never heard of the dismissal statistic Mr. Aronson cites.  In fact, I thought "no bills" are quite common, as are reduction of charges and directions to file charges against juvenile offenders in Family Court.  UPDATE: Indeed, DCJS' report of adult felony arrests by county shows that there have only been 3 "no bills" in New York County in the last five years. Other counties, such as the Bronx, show higher numbers.  Does anyone know if the DCJS data is accurate?

I agree with Mr. Aronson that grand jurors should be given a copy of the preliminary instructions.  Indeed, CPL § 190.20(5) requires that each grand juror receive a written copy of CPL Article 190.

The Grand Jury should not be left with a copy of the Penal Law.  Jurors are not expected to be trained in statutory interpretation.  Thus, the Grand Jury's legal advisor, either the court or prosecutor, is required by CPL § 190.25(6) to instruct the Grand Jury on the law.  Indeed, this advice must be recorded in the minutes of the proceeding.  This advice may be a recitation of the statutes, but often it will include an explanation of the relevant provisions, thus saving the Grand Jury from having to sort through unnecessary sections of the Penal Law to discern the elements of applicable offenses.

Regarding note-taking, the CJI model instructions for the empaneling of a Grand Jury states, "Note-taking by grand jurors is neither prohibited nor encouraged."  Similarly, the CJI instructions do not state that a Grand Jury "should" indict, only that it "may" indict if it finds sufficient evidence and cause to do so.  (LC)

Comments

[Nathan Burney]

Wouldn't a lower number of no-true-bill votes be a point in favor of the prosecutors in that county? It would seem they're properly exercising their discretion and not trying to indict cases that aren't provable.

The ratio of NTBs to felony arrests is not a meaningful number, unless you also know how many of those arrests were actually presented to a grand jury.

Also, NTBs are more common when defendants actually exercise their right to testify in the grand jury. Back in the late 90s, unofficial estimates in Manhattan had a good-sized fraction of those defendants getting a NTB. Has the number of defendants testifying gone down since then?

[Nicholas P]

One should not read too much into the no true bill statistic from DCJS as it only reflects the tiny fraction of cases where a grand jury elects to not charge a defendant with any crime whatsoever. Notably, the statistic does not reflect the somewhat common phenomenon of a grand jury voting no true bill with respect to one or more of the submitted charges, but indicting the defendant with respect some of the other submitted charges, be they lesser included counts or otherwise.

Nor does the NTB statistic reflect those cases where a grand jury deadlocks and takes no affirmative action. While a grand jury's failure to take affirmative action does not bar a future representation of the charges in question to another grand jury, it may affect the parties' willingness to negotiate a pre-indictment disposition.