Facing a Grand Jury: Should I Testify?

This video features David Cohen, a Criminal Law attorney based in New York.

New York Criminal Attorney Defends Against Federal Charges 

Video Transcript:

David Jason Cohen: 

With a smart client, a savvy client, and a good set of facts, grand jury can be a wonderful place to win a case.

Molly Hendrickson: 

If you've been charged with a felony, you'll have to decide if you wanna testify before a grand jury, what should you consider when making that decision? We're gonna talk to Attorney David Jason Cohen about that on today's Ask the Lawyer. David, thanks for joining us.

David Jason Cohen: 

Thanks for having me, Molly.

Molly Hendrickson: 

So everyone charged with a felony is faced with the question of whether to testify in front of a grand jury. First off, can you explain what the grand jury is?

David Jason Cohen: 

Sure. A grand jury is a group of citizens from the county or town in which the prosecution is pursuing their case. They sit in a room that is a secret room, quite literally, there's no judge there, there's no defense attorney, there are only the grand jurors, the prosecutor as well as the witnesses that they call to testify. In that room is up to 23 people, and the 23 people vote on charges presented to them by the prosecution. Now the charges are given to them after the prosecution has presented evidence. Evidence in the grand jury chamber, as it's referred to, consists of testimony, it could be electronic communications, it could be videos, statements, but the prosecution controls the evidence that is presented to the grand jurors. When the prosecution is done presenting their evidence, they then ask the grand jurors to vote on whether or not they believe, and here's the standard, more likely than not.

David Jason Cohen: 

It's not proof beyond the reasonable doubt, it's whether it is more likely than not that the person accused committed that crime. And if the grand jurors vote by a majority that it is more likely than not that the person accused committed the crime, then that charge is contained in a document called an indictment. If the prosecution fails to either get the majority necessary to agree or does not present evidence that rises to the standard of more likely than not, then the grand jurors do not vote a charge. When it's all over, whatever charges remain are contained in what we all know to be called an indictment.

Molly Hendrickson: 

So if you are arrested and charged with a felony, do you have a right to testify in front of a grand jury? And if so, should you?

David Jason Cohen: 

That's always a tough question for defense attorneys, and sometimes it's difficult for clients, if the clients and the attorney disagree about that. What happens here in New York is once you know that there is a grand jury, potential grand jury sitting, then your lawyer must file a notice. If your lawyer files a notice it's called cross grand jury notice. First the prosecution would file a notice say, "Hey, we're gonna present this evidence to a grand jury." And here it's referred to as 19050 notice because that's a section in the criminal procedure law.

David Jason Cohen: 

Your lawyer then... And we do it all the time, files a cross grand jury notice telling the prosecution that our client wishes to testify in front of the grand jury. Now the prosecution cannot vote any charges against you until you have had an opportunity to testify in front of the grand jury. Once your lawyer makes that request to the prosecution, you have an absolute right to testify. If you're lawyer fails to make that request, then the grand jury can go on without you, and charges then can be voted without you ever testifying even if you wanted to. Failure to file cross grand jury notice results in your being kept away from the grand jury chamber.

Molly Hendrickson: 

So what about presenting other forms of evidence to a grand jury, like a friend's testimony or text messages or maybe even emails or voice messages?

David Jason Cohen: 

Okay, so we spoke about how you have to file the notice for you to testify and you did ask me whether or not one should testify. So just a quick brought back to that prior question, I think a lot of times, one has an opportunity to testify in the grand jury and should seriously consider it. Here at CFP Law, we prep our clients for the grand jury all the time, although many of them don't go in. If you want to put in evidence other than your client's testimony, for instance, the type that you just refered to, text messages, electronic communications, then you send a note through the prosecution, which as defence attorneys, we hate to have to rely on them, but then the prosecution makes a request to the grand jury and says, "Defense council would like you to see text messages from his client and the complainant."

David Jason Cohen: 

The person who is accusing my client of whatever crime they're putting before the grand jury. And ultimately the grand jurors can make a decision to hear, to see that testimony, to listen to it, to view the text messages, or they could decide that they do not wanna hear it. So in order to get that instruction in front of the grand jury or request, you must make that request in writing to the prosecution or the prosecutor assigned to the grand jury presentation.

Molly Hendrickson: 

So, most lawyers refuse to even consider having their client appear and testify before a grand jury. Why is that? And is that something that you agree with?

David Jason Cohen: 

Here at CFP law, we are a little more aggressive than most defense attorneys in the grand jury. The grand jury can present a wonderful opportunity to get the charges dismissed at a very early stage. Most lawyers are against having it. And as you say, Molly, don't even consider it. The rationale behind it is, your client has a Fifth Amendment right to remain silent and never has to answer any questions about his or her involvement or lack of involvement in a particular crime.

David Jason Cohen: 

Once your client agrees to testify in a grand jury, they have given up their Fifth Amendment right. They have gone on the record, they have sworn under oath to tell the truth, and then they are questioned, they give a statement and then the prosecution can question them, the grand jurors can question them. All of that, of course, is taken down by a stenographer. The stenographer sits and records every word your client says, and what we defense attorneys are worried about is that later on, if you find out other information that may contradict something your client says, you have already given your client's statement. You have in essence forfeited his right to remain silent.

David Jason Cohen: 

So, on one side, there's this idea, we can work around these charges right at the beginning and present a strong defense and potentially the grand jurors could say no crime has been committed and all charges can be dismissed immediately. On the other side is the idea of forfeiting your right to remain silent, the prosecution now has a full transcript in which you were sworn under oath to tell the truth, and they know exactly what you would say at any future trial, and that's the reason most defense attorneys do not even consider the possibility, but with a smart client, a savvy client and a good set of facts, grand jury can be a wonderful place to win a case.

Molly Hendrickson: 

So, David, whose decision is it? Is it always the lawyer's decision to make whether their client is going to testify in front of a grand jury. What if the client wants to, but the lawyer doesn't think it's a good idea? Who makes that call ultimately?

David Jason Cohen: 

It's an interesting question, Molly, because there's few things that have been debated more between clients and attorneys and even among the defense bar about who should make the ultimate decision. The law says it is an attorney's decision, and unfortunately, we have had dozens and dozens of clients who've come to us from other law firms saying, I never had a chance to testify in front of the grand jury, and we say, "Well, did you tell your lawyer?" "Yeah, I told my lawyer, and my lawyer said I'm not testifying." It's ultimately the lawyer's decision, but we have to understand, we have to work in tandem with our clients. Our client knows more about the facts than we do.

David Jason Cohen: 

They call us counsellors because we're gonna counsel them on what we believe and what we know is the right thing to do. At CFB Law, as the head of the Criminal Defense Division, I believe it's imperative to listen to your client, ask him or her why they believe they should testify, go over the story with them, listen to what they have to say, and ultimately, even if you disagree with the client, if the client is adamant and demands to go in, then you have to seriously consider allowing them to go in because you will have a relationship with this client for months or possibly years, and if it starts off with you disavowing what your client wants to do, the relationship may not get very further than the grand jury proceeding.

Molly Hendrickson: 

David, thanks for taking the time to talk to us today.

David Jason Cohen: 

Thank you so much for having me, Molly. Have a good day.

Molly Hendrickson: 

You too. That's gonna do it for this episode of Ask The Lawyers. My guest has been David Jason Cohen. If you wanna ask him about your situation, you can call the number on the screen. Thanks for watching, I'm Molly Hendrickson for Ask The Lawyers.

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