Arraignments
New York City Grand Jury
Arraignment on Indictment
Motions in Criminal Court
New York Criminal Court
Hearings
Plea Bargaining in New York
Grand
Jury Action
When a person is arrested for a felony
in New York State, the Prosecutor must go to a "Grand Jury"
and get an Indictment before the Prosecutor is allowed to take a
defendant to trial for a crime.
A Grand Jury is simply a group of
people (between 16 and 23) who are selected at random from the County in
much the same way as "regular" jurors are selected.
Grand Juries sit for about a month at a
time (called a "term").
The job of the Grand Jury is to hear
cases presented by the District Attorney's Office. The
Prosecutors are required to present cases to the Grand Jury in order to
get the Grand Jury's permission to prosecute the
cases.
If, after hearing the Prosecutor's
presentation, the Grand Jury decides not to give the District Attorney's
Office permission to prosecute a case, the case is forever
dismissed. When the Grand Jury refuses to give the District
Attorney's Office permission to prosecute a case, that is
called a "No True Bill".
If, after hearing the Prosecutor's
presentation, the Grand Jury decides to give the District Attorney's
Office permission to prosecute a case, that is called a
"True Bill" and the Grand Jury prepares a document called an
Indictment. Written on the Indictment are a list of the charges
the Grand Jury has permitted the District Attorney's Office to file.
So an indictment, then, is really a
kind of written permission from the Grand Jury to the District
Attorney to prosecute a person for a crime.
It is usually very EASY for the
District Attorney to convince a Grand Jury to give permission to
prosecute any particular case. Here's why:
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The Prosecutor is not required to
prove guilt beyond a reasonable doubt
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The Prosecutor is only required to
convince the Grand Jurors that it is possible that the defendant
might have committed a crime.
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The Prosecution witnesses are not
cross-examined by an attorney.
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Prosecution witnesses are not
usually challenged in any way
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The defendant's attorney is not
permitted to make opening or closing statements.
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The defendant's attorney is not
permitted to call witnesses on behalf of the defendant.
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In fact, the proceedings are
considered secret. The defendant and the defense attorney
are not entitled even to know who testifies in the Grand Jury or
what they said.
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Although the defendant is
permitted to testify, it is only by way of one long statement.
A defendant who is not a professional or natural public
speaker may not do very well, regardless of the justness of his
cause.
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There is no judge directly
involved to make rulings of law.
Therefore, most cases the Prosecutors
present to the Grand Jury do get "indicted".
In all but very rare circumstances, the
defendant is permitted the choice of whether or not to make a statement
to the Grand Jury before they take a vote. Whether or not the
defendant will actually choose to testify is a matter requiring careful
discussion with an attorney. Every case is different. Every
situation requires its own individual decision. There is no
"one size fits all" rule.
Statistically, however, most defendants
choose not to testify. Many believe that the process is so
one-sided and the likelihood of success is so small that it is not worth
it. Why, the logic goes, should the defendant go on the record
with his statement and provide the people who are prosecuting him a
means to twist his words later on? In some cases, depending on the
nature of the defense, and the ability of the defendant to communicate
well, the Grand Jury can be well worth the risk. Nevertheless, a
decision to testify in the Grand Jury should never be made lightly, and
should always be made only after careful discussion with an attorney.
When a person is arrested for a felony
in New York, the law requires that IF THE JUDGE SETS BAIL THE DEFENDANT
CAN'T MAKE, the defendant be released usually within 144 hours (six
days). That means that if the Prosecutor does not get an
indictment within the time limit (usually six days) the defendant is
RELEASED WITHOUT BAIL, unless a judge agrees that there is sufficient
excuse to give the People more time. The case is NOT dismissed.
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Arraignment
on Indictment
Once the Grand Jury issues the
indictment, the defendant is required to appear in court and be
arraigned all over again. This new arraignment is called the
arraignment on the indictment.
Arraignments on Indictments happen in
Supreme Court. Supreme Court, oddly enough is the name of the
trial level (as opposed to the highest appeals level) court for felonies
in New York State. Once you have been indicted, your case will
stay in Supreme Court.
Queens has a peculiar system for handling
indicted felonies. It used to be that after arraignment indicted
felonies would be sent to particular courtrooms where they would stay
until they were either tried or plead out. Now, in Queens, all
felony cases (other than murder cases) are sent to Part TAPA.
Indicted Felonies (other than murder
cases) are all arraigned in one of the TAP Parts.
At the arraignment, the Prosecutor
hands the defense attorney a copy of the indictment along with certain
legal notices. The Clerk informs the defendant of the charges
against him and will usually ask whether the defense attorney
"waives further reading". Usually the defense attorney
will waive any further reading of the indictment and plead "not
guilty". As a matter of practice, attorneys in Queens usually
do not require the Clerk to read all of the charges at the arraignment.
The assumption is that the attorney will review the charges with
the defendant.
That concludes the Supreme Court
arraignment. It is not a dramatic moment in the case and lasts
usually around one minute.
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Motion
Practice
After the Supreme Court arraignment,
the judge will set a "motion schedule". A motion
schedule has three dates. The first date is the time by which the
defense lawyer is supposed to file all legal motions in the case in one
big package called an "Omnibus Motion". The second date
is the time by which the Prosecutor must respond. The third date
is the actual date the case is back in Court. On this date the
Court will have a decision on all motions filed.
The most common motions made as part of
motion practice ask the Court to grant certain pre-trial hearings.
The three classic pre-trial hearings all relate to three basic kinds of
evidence.
The "Mapp" hearing (from a
United States Supreme Court case) is a hearing about physical evidence
recovered by the police. At the Mapp hearing, the defense
challenges the way the police came into possession of the
evidence. For example, if a police officer simply decided that it
would be fun to select a person at random and search him, the defense
might argue that any illegal substances found as a result were illegally
found. If the judge finds that the substances were illegally
found, then the Prosecutor is not allowed to use the evidence. If
the police did not recover any physical evidence in the case, there is
no reason to have a Mapp hearing.
The Wade hearing (from a different
United States Supreme Court case) is a hearing about identification
evidence (like a lineup). At the Wade hearing, the defense
challenges the fairness of the identification. For
example, if the police put the 6 foot tall white defendant in a lineup
with 65 year old 4 foot tall African American people, the defense might
argue that the lineup was unfair. If the Prosecutors do not intend
to use identification evidence, then there is no reason to have a Wade
hearing.
The Huntley hearing (from a New York
Court of Appeals case) is a hearing about statements that the
Prosecutors say the defendant made. At the Huntley hearing, the
defendant challenges the way the police obtained the
statements. The defense can argue that the statements were
obtained as a result of actual physical violence OR the defense can
argue that the statements were obtained from the defendant without
having warned him of his rights (commonly known as Miranda rights).
Also, the defense can argue that the statement was obtained as a result
of illegal arrest. If the Prosecutors do not claim the defendant made
any statements, then there is no reason to have a Huntley hearing.
Aside from requests for the above
hearings (where appropriate) many other more specialized motions can be
made depending on the case. Typically the defense will also
request that the judge examine the proceedings of the Grand Jury.
Also, the defense will request that the
Prosecutors comply with the extremely limited discovery requirements.
Most people would probably be shocked at how little the Government in
New York State is required to disclose before a criminal trial.
In New York State, if money is at
stake, you can take depositions of witnesses and require the opposing
side to provide all relevant documents well in advance of doing any
hearings or trials. But if FREEDOM is at stake, as it is in a
criminal case, the law in New York requires almost nothing.
It is surprisingly common in New York
to receive the most relevant and important documents in a criminal case
minutes
before opening statements.
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Pre-Trial
Hearings
In many cases, the defense is entitled
to at least one of the three most common hearings mentioned
above. In some cases, the defense may be entitled to other,
more exotic hearings.
It is important to understand what is
really going on with hearings. What is at stake at most hearings
is the admissibility of certain evidence. Winning a hearing
usually means keeping certain evidence out of a trial. Winning a
hearing does not necessarily mean winning a case.
For example, if the hearing is about a
statement supposedly made by the defendant (Huntley hearing), success at
the hearing only means that the Prosecutor won't be able to use the
statement at trial. So if the Prosecutor has a videotape of the
crime, 16 eyewitnesses, including the defendant's own mother, and DNA
evidence, keeping the statement out of the trial might not mean that
much.
Movies, Television shows, and the news
media have successfully shaped public opinion to the point that most
people believe that judges routinely "throw out" critical
evidence at these pretrial hearings because they are "forced
to" by "legal technicalities".
It would be difficult to imagine a
bigger, more preposterous LIE that has been visited on the general
public.
Here is a good general rule by
which the public SHOULD be guided: In any given criminal case, NO
EVIDENCE OF ANY SIGNIFICANCE WILL EVER BE SUPPRESSED.
Are there exceptions? Of course.
But the rate of suppressed evidence is so small that it is nearly
statistically insignificant. One commonly referred to statistic is
that among a representative group of Federal cases, evidence of any kind
was suppressed in only 5%.
It is extremely politically unpopular
to suppress evidence in criminal cases. It would be nice to
believe that judges are not subject to political pressure. Take a
recent situation that arose in Federal Court, however. A Federal
Judge (appointed for life to prevent the possibility of political
pressure) suppressed a large amount of drugs in a particular case.
A firestorm of criticism erupted in the newspapers. Politicians
began discussing the possibility of finding some means to remove the
judge from his lifetime appointment. This Federal Judge then
turned around and REVERSED his own decision. Scary, isn't it?
And everyone takes for granted that the
issues involved in suppressing evidence are idiotic procedural
"technicalities". Really? Is it a
"technicality" if the police pull over a black man driving a
nice car because he is a black man driving a nice car? Is it a
"technicality" if the police beat the living daylights out of
a person until he "confesses"?
These "technicalities" are
some of the most basic principles of justice that separate the free from
the oppressed. Many many people have died miserable deaths or
endured incredible hardships in foreign lands to preserve these
"technicalities" for us. It is an insult to their
memories to so casually describe our fundamental rights as
"technicalities".
This belief that evidence is constantly
being suppressed is so absurd it is almost funny. Want to
make a criminal defense attorney laugh? Tell him you think a judge
is going to suppress evidence at a pretrial hearing. Unfortunately
this belief that evidence is constantly being suppressed often leads to
great difficulty in dealing with people who are arrested.
"Why can't you just get the evidence thrown out?" says the
newly arrested person. "Everyone else gets evidence thrown out all
the time." The answer, however, is "Welcome to
REALITY".
So then why are pretrial hearings so
important? If it isn't going to get any evidence suppressed, what
good is it?
The answer is that it usually provides
a small window into the Prosecutor's case. In doing almost any
hearing, one of the police officers involved will have to testify.
Once he testifies, the defense is entitled to all police reports filled
out by that officer and all prior statements of that officer. The
defense gets to cross-examine that officer as well.
The bottom line is that pretrial
hearings usually provide at least some clues as to the strength of the
Prosecution's case against the defendant. Since discovery in New
York is pretty much a joke, the pretrial hearings become a means of
discovery.
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Plea Bargaining
Plea bargaining is discussion between
the prosecutor and the defense attorney about possible ways of resolving
cases in some way other than a trial.
Most criminal cases are not resolved at
trial. In fact, probably fewer than 10 percent of all criminal
cases actually end up being tried. What is happening to the other
90 or so percent of the cases? Most of them are resolved with plea
bargains.
In a plea bargain, the defendant
usually agrees to plead guilty to some less serious charge in exchange
for a certain result.
At the heart of a plea is the
uncertainty of success at trial. The more a defendant is confident
that he will be acquitted at trial, the less motivated he is to plead
guilty. The more a defendant is confident that he will be
convicted at trial, the more motivated he is to seek a plea
bargain.
One job of the defense attorney is to
help his client gain some sense of the likelihood of success at trial.
The law requires (in all but the rarest
of cases) that you either say you are guilty of an offense or be willing
to go to trial. The law generally does not permit you to accept a
guilty plea simply because you are afraid the jurors might come to the wrong
conclusion. If you are unprepared to tell the Court that you are
guilty of some offense, then the law generally requires you to pretend
that jurors can not make a mistake and you must go to trial.
In Queens County, plea bargaining in
felony cases is usually done up front before the case is indicted.
Under the District Attorney's current policy, they will not negotiate on
felonies after indictment.
Up to now the District Attorney's
Office has stuck fairly rigidly to its policy. Occasionally,
supervisors authorize deviations from the policy, but for the most part
they have stuck to it.
The District Attorney's lack of
cooperation does not end the possibilities for plea bargaining, although
certain limits are imposed without their cooperation. Absent
cooperation from the District Attorney's Office, a defendant may still
negotiate directly with the Judge. The problem is that in order to
deal with the Judge, the defendant must plead guilty to exactly what
he is charged with.
That means no lesser charges.
That also means that the judge will be bound to abide by any MANDATORY
MINIMUMS there might be for the particular crime charged.
For example, if the mandatory minimum
for the crime charged is 5 years, then the best a judge could ever offer
is 5 years. With the District Attorney's cooperation, however, a
plea bargain could be arranged in which the defendant pleads to a lesser
charge (with less or no jail time as a sentence).
Defense attorneys are required to tell
their clients whenever a plea bargain offer is made. Some clients
become offended when approached about offers. Simply informing a
client about an offer, however, is not the same as recommending an
offer.
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