5.31 - C. Legal And Ethical Constraints

• Jurisdiction: New York

C. Legal and Ethical Constraints

Inside the grand jury, the district attorney is a quasi-judicial public officer who has an obligation to protect not only the public interest but also the rights of the accused.⁷⁶²

The district attorney has a number of important legal and ethical limitations on his relationship with the grand jury. Since a fundamental concern of the grand jury process is fairness to the defendant and since the district attorney is the legal adviser to the grand jury, the district attorney must be moderate in his conduct. He must present evidence in an honest, unbiased manner and deal with witnesses in a fashion that minimizes potential allegations that he “set them up” for perjury or contempt prosecutions.⁷⁶³

The district attorney should present evidence honestly and without bias. The defendant and his counsel are not present in the grand jury room and cannot test the validity of evidence when it is offered. Since the district attorney is a legal adviser to the grand jury during the proceedings, he should ensure that the grand jury considers only admissible and competent legal evidence relating to the alleged offense.⁷⁶⁴

The district attorney’s obligation to be fair and unbiased does not include an obligation to present exculpatory evidence (evidence that tends to negate guilt).⁷⁶⁵ However, as a matter of fairness and practicality, the prosecutor should consider presenting exculpatory evidence to the grand jury. If the grand jury believes the exculpatory evidence and no indictment is returned, an unwarranted prosecution is avoided. The accused is thus spared the serious social and economic consequences of indictment. Moreover, scarce prosecutorial resources would not be further expended on a case where the chances of ultimately proving guilt beyond a reasonable doubt are problematic. It should be well noted, however, that “exculpatory evidence” means admissible evidence under general criminal trial rules pursuant to CPL §§ 70.10(1), 190.30(1) and 190.65(1). For instance, exculpatory statements by a defendant that are not an integral part of a single statement in which the defendant’s inculpatory statements are made and thus subject to the rule of completeness, constitute self-serving declarations, not admissions, and, as such, are excluded under traditional hearsay rules. Exculpatory versions of the facts may be presented to the grand jury by the defendant upon electing to testify under a waiver of immunity or through the testimony of others the defendant requests the grand jury to hear, in its discretion, under CPL § 190.50(6). The other witnesses, in turn, are subject to the prosecutor’s demand that they also sign waivers of immunity.⁷⁶⁶ Similarly, the prosecution is not required to submit evidence pertaining merely to witness credibility, an issue collateral to the basic issue before the grand jury, that is, whether there is legally sufficient evidence that a crime has been committed and reasonable cause to believe that the defendant committed it.⁷⁶⁷

The district attorney is the legal adviser to the grand jury as a whole, not to its members individually. Since the district...