5.11 - 1. Presentation Of Inadmissible Evidence Before The Grand Jury

• Jurisdiction: New York

1. Presentation of Inadmissible Evidence Before the Grand Jury

Case law varies a bit about inadmissible evidence presented to the grand jury. If there is sufficient evidence to establish a prima facie case without the improper evidence, the court will deny a motion to dismiss for insufficient grand jury evidence.⁶⁴⁷ Some courts have dismissed indictments after excluding the inadmissible evidence and reviewing the legally admitted evidence.⁶⁴⁸ The wiser practice is for the prosecutor to exclude inadmissible evidence. That would include inadmissible hearsay, evidence violating the best evidence rule, evidence without sufficient foundation and irrelevant evidence.

Section 210.35(5) of the CPL states that a grand jury proceeding is defective when it otherwise fails to conform to article 190 “to such a degree that the integrity thereof is impaired and prejudice . . . may result.” This is a very high standard, not one to “be used by trial courts to dump cases.”⁶⁴⁹

“Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforceable by an individual.” And this is essentially because “no person is a party as such to a grand jury proceeding.”⁶⁵⁰ A grand jury proceeding is not in law an adversarial proceeding.⁶⁵¹ In those selective instances where one is entitled to test the grand jury process in the courts, there are strict procedural rules which effectuate important public interests.⁶⁵² For virtually the same sort of policy reasons, motions to suppress evidence do not exist at the grand jury stage. The exclusionary rules, except for illegal wiretapping, have no place at the investigator, pre-accusatory phase.⁶⁵³

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Notes:

^[647] . CPL § 210.30(1). See People v. Leary, 305 N.Y. 793, 113 N.E.2d 303 (1953); People v. Avant, 33 N.Y.2d 265, 271, 352 N.Y.S.2d 161 (1973).

^[648] . See, e.g., People v. Peetz, 7 N.Y.2d 147, 196 N.Y.S.2d 83 (1959); People v. Jenkins, 85 A.D.2d 265, 447 N.Y.S.2d 490 (1st Dep’t), appeal dismissed, 56 N.Y.2d 737, 451 N.Y.S.2d 740 (1982); People v. Weed, 254 A.D. 589, 3 N.Y.S.2d 8 (2d Dep’t 1938).

^[649] . People v. Darby, 75 N.Y.2d 449, 554 N.Y.S.2d 426 (1990).

^[650] . People v. McGrath, 46 N.Y.2d 12, 412 N.Y.S.2d 801 (1978); People v. Einhorn, 35 N.Y.2d 948, 365 N.Y.S.2d 171 (1974).

^[651] . United States v. Calandra, 414 U.S. 338, 344 (1974); People v. Brewster, 63 N.Y.2d 419, 422, 482 N.Y.S.2d 724 (1984); see People v. Mitchell, 82 N.Y.2d 509, 605 N.Y.S.2d 655 (1993); Darby, 75 N.Y.2d 449...