Are Defense Attorneys Allowed in Grand Jury Hearings? What Defense Attorneys Can and Cannot Do

Grand jury hearings are a vital part of the criminal justice system in the United States and some states, such as New Jersey.

They are designed to determine whether there is enough evidence to charge a person with a serious crime and bring them to trial.

Are Defense Attorneys Allowed in Grand Jury Hearings?
Are Defense Attorneys Allowed in Grand Jury Hearings?| Greco Newland ,PC

However, the role of defense attorneys in these proceedings is very limited and restricted.

This article will explain what a grand jury hearing is, what the role of a defense attorney is, and what the rights and limitations of defense attorneys are in grand jury hearings.

READ MORE: How Much Does a Good Defense Attorney Cost? Everything You Need To Know

What is a Grand Jury Hearing?

A grand jury hearing is a legal procedure that involves a group of citizens, usually 16 to 23, who are selected randomly from the community.

The grand jury hears evidence presented by a prosecutor, who is the government’s lawyer, and decides whether there is probable cause to believe that a crime has been committed and that a specific person is responsible for it.

If the grand jury finds probable cause, it issues an indictment, which is a formal accusation of a crime.

The indictment then allows the prosecutor to proceed with a criminal trial against the defendant.

A grand jury hearing is different from a trial in several ways.

First, a grand jury hearing is secret and confidential, meaning that the public and the media are not allowed to attend or know what happens inside.

Second, a grand jury hearing is one-sided, meaning that only the prosecutor can present evidence and witnesses, and there is no judge or defense attorney to challenge or cross-examine them.

Third, a grand jury hearing has a lower standard of proof than a trial, meaning that the prosecutor only has to show that there is some evidence to support the charge, not that it is beyond a reasonable doubt.

What is the Role of a Defense Attorney in a Grand Jury Hearing?

A defense attorney is a lawyer who represents a person accused of a crime and protects their rights and interests.

Defense attorney can advise their client on how to deal with the grand jury process, prepare them for possible questioning, and help them avoid self-incrimination.

A defense attorney can also conduct their own investigation and gather evidence that may exonerate their client or cast doubt on the prosecutor’s case.

However, a defense attorney has very limited access and influence in a grand jury hearing.

A defense attorney is not allowed to be present in the grand jury room or hear the testimony of witnesses or the presentation of evidence by the prosecutor.

Defense attorney can only communicate with their client outside the grand jury room, before or after they testify, if they are called as a witness.

A defense attorney cannot object to the questions asked by the prosecutor or challenge the admissibility or reliability of the evidence.

Defense attorney cannot present any evidence or witnesses of their own to the grand jury, unless the prosecutor agrees to do so.

What are the Rights and Limitations of Defense Attorneys in Grand Jury Hearings?

Defense attorneys have some rights and limitations in grand jury hearings, depending on the state and the circumstances of the case. Some of these rights and limitations are:

An image of a public prosecutor
Public Prosecutor [PHOTO COURTESY OF LEGA MASTERS]

1.Right to be notified of the grand jury hearing

In some states, such as New Jersey, the defense attorney has the right to be notified of the date, time, and place of the grand jury hearing, and the nature of the charge.

This allows the defense attorney to prepare their client and advise them on how to respond to the grand jury.

However, in other states, such as New York, the defense attorney has no right to be notified of the grand jury hearing, unless the client is already under arrest or has been given immunity.

This means that the defense attorney may not know that their client is under investigation or facing a possible indictment until it is too late.

2.Right to request the presence of a defense attorney in the grand jury room

In some states, such as New Jersey, the defense attorney has the right to request that they be allowed to be present in the grand jury room while their client is testifying.

This allows the defense attorney to observe the proceedings, advise their client on their rights, and object to any improper questions or evidence.

However, the final decision on whether to grant this request is up to the judge, who may deny it for various reasons, such as the need to protect the secrecy of the grand jury or the integrity of the investigation.

In other states, such as New York, the defense attorney has no right to request or be present in the grand jury room, unless the client is a minor or has a mental disability.

This means that the defense attorney has no way of knowing what is happening inside the grand jury room or how their client is being treated by the prosecutor.

3.Right to review the transcript of the grand jury hearing

In some states, such as New Jersey, the defense attorney has the right to review the transcript of the grand jury hearing, if an indictment is issued against their client.

This allows the defense attorney to see what evidence and witnesses were presented to the grand jury, and to challenge any errors or irregularities in the proceedings.

However, the defense attorney may have to wait until the discovery phase of the trial to obtain the transcript, which may take months or years.

In other states, such as New York, the defense attorney has no right to review the transcript of the grand jury hearing, unless the court orders it for a specific reason, such as to determine if there was sufficient evidence to support the indictment or if there was any misconduct by the prosecutor.

This means that the defense attorney may never know what happened in the grand jury room or what influenced the grand jury’s decision.

What is the difference between a grand jury and a trial?

The difference between a grand jury and a trial is that they have different roles and procedures in the criminal justice system.

A grand jury is a group of citizens who decide whether there is enough evidence to charge a suspect with a crime, based on the evidence presented by the prosecutor.

A trial is a legal process where a judge and a jury hear the evidence and arguments from both sides and determine whether the defendant is guilty or not.

Here are some of the main differences between a grand jury and a trial:

1.A grand jury is secret and confidential, while a trial is usually open to the public and the media.
2.A grand jury is one-sided and only hears the prosecutor’s side, while a trial is adversarial and allows both the prosecution and the defense to present their case.
3.A grand jury has a lower standard of proof than a trial, and only needs to find probable cause to issue an indictment, while a trial requires proof beyond a reasonable doubt to convict the defendant.
4.A grand jury is larger than a trial jury, and usually consists of 16 to 23 people, while a trial jury is smaller and usually consists of 6 to 12 people.
5.A grand jury is involved at the beginning of a case, and decides whether to bring charges against the suspect, while a trial jury is involved at the end of a case, and decides whether the defendant is guilty or not.
6.A grand jury does not determine the sentence or the punishment for the defendant, while a trial jury may have a role in sentencing, depending on the state and the case.

Conclusion

Grand jury hearings are an important but secretive part of the criminal justice system that can have a significant impact on the fate of a person accused of a crime.

Defense attorneys have a limited and variable role in these proceedings, depending on the state and the case.

Defense attorneys should be aware of their rights and limitations in grand jury hearings, and seek to protect their clients’ interests and rights as much as possible.

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