Another thoughtful piece from Joel Cohen (NYLJ Oct. 24, 2022) on grand juries, with his inclusion of the recommendations of Sol Wachtler, former Chief Judge of the New York State Court of Appeals. However, Cohen misses the mark when he declares that both federal and New York state grand juries deprive the defense of the opportunity “to tell or present its side of the story.” In fact, for decades, this state has permitted defendants to appear, with counsel, to do just that. And unless a majority of the 23 grand jurors vote to indict, to all intents and purposes that ends the prosecution. That federal statutes do not grant the same protections represents a continuing deprivation to anyone interested in a “search for the truth.” Whether state or federal, prior to arrest, grand juries may proceed for weeks, and even months, without alerting prospective defendants. However, once an arrest is made there is no good reason to deny an accused an opportunity to be heard at the ensuing grand jury proceedings.

Further, while Cohen correctly notes that the prosecutor “instructs” the grand “jury on the applicable law, if you can believe that,” a sitting grand jury is presided over by a judge who is available to address issues occurring before and during the grand jury sessions. While judges in those courtrooms are often wholly deferential to the prosecutors’ perspectives, in times past they often encouraged important corrections, including the wording of the prosecutor’s charge to the grand jury.

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