5.49 - A. Institutional Principles

• Jurisdiction: New York

A. Institutional Principles

The United States Constitution and the New York Constitution refer to the grand jury as an existing institution. The institution’s essential features must be found by reference to its common law signature, that is, the general investigation of possible crime via compulsory process possibly followed by a specific criminal accusation against someone.⁸⁶⁰ “To the grand jury, and to it alone, is given the power of investigation without a definite charge.”⁸⁶¹ The court does not have this power. It must await the filing of a definite charge in an accusatory instrument against a named person. A prosecutor possesses no such power. For instance, there is no such thing as prosecutorial office subpoena power. A prosecutor may subpoena witnesses to a grand jury but only on behalf of the grand jury—or to the court on behalf of the court in a criminal action against a specifically charged, named defendant. A prosecutor may not transform either process into a function of his office.⁸⁶²

At its barest minimum, a grand jury proceeding commences when a prosecutor, on his own initiative, issues and serves its subpoena in good faith.⁸⁶³ The grand jury’s constitutionally enshrined common law investigative authority as an institution, encompassing, as it does, its right to every man’s evidence⁸⁶⁴ when particularly focused by its process directed to a named individual, largely accounts for the proposition that a grand jury proceeding is commenced the moment a prosecutor issues its subpoena in good faith.⁸⁶⁵ And it is good faith as commanded by an oath of office which goes surety for the flexibility that prosecutors must enjoy in harmonizing the jurisprudential theory underpinning the power of the grand jury as an institution with the practical realities of the world.⁸⁶⁶

What is the relationship between the judiciary and the grand jury as a common law institution with an independent common law, constitutional niche of its own? The grand jury belongs to neither the judicial nor the legislative nor the executive branch of government. A court’s supervisory power may be used to dismiss an indictment because of misconduct before the grand jury, at least where that conduct constitutes a violation of one of those few clear rules going to the heart of the grand jury’s functions as broadly set forth by the legislature. This supervisory power may not be used in the fashion of a court prescribing procedures for the trial of criminal cases. No such supervisory power exists. A judge’s direct involvement in grand jury matters is largely confined to empaneling it and administering its oath of office. A grand jury requires no authorization from its constituting court to initiate an investigation, nor does the grand jury require the approval of the court to vote an indictment. In its day-to-day functioning it is to operate without interference from the judiciary. But it is also true that the grand jury cannot itself compel the production of evidence or the appearance of witnesses. It must appeal to the court when compulsion is necessary. And the court will or will not lend its assistance depending on whether the compulsion sought would tread upon rights guaranteed by constitution, statute compatible therewith, or evidentiary privileges recognized by the common law. A court’s supervisory power will not serve to permit its reshaping of the grand jury institution or the substantial alteration of the traditional relationships among it, prosecutor and itself.⁸⁶⁷ For somewhat of an example, “there is no rule of law requiring the District Attorney to call the complainant or any other witness to testify before the Grand Jury. Further, neither a complainant nor a target has a right to be informed of the manner in which a Grand Jury presentment will be made.”⁸⁶⁸

Regarding constitutional rights and evidentiary privileges at the grand jury stage of the criminal process, such must be vindicated in a manner consistent with the nature of its proceedings and the public’s interest in their expedition. Consequently, the law recognizes few grounds affecting or sanctioning one’s refusal to produce documents or testify. Within a narrow range, the grounds that do exist are restricted and regulated by statute. The privilege against self-incrimination is one such ground.⁸⁶⁹ Aspects of the Fourth Amendment are also grounds—i.e., jurisdiction, overbreadth-burdensomeness and relevancy.⁸⁷⁰ The social worker,⁸⁷¹ psychologist-patient,⁸⁷² attorney-client,⁸⁷³ spousal⁸⁷⁴ and priest-penitent⁸⁷⁵ privileges are all properly raised at the grand jury phase. Also, there are those confidentiality objections that are the result of modern statutes dealing with special areas of concern—constitutional and special interest legislation—such as wiretapping,⁸⁷⁶ news sources⁸⁷⁷ and the confidentiality of certain types of government records, like those pertaining to misbehaving judges.⁸⁷⁸

There are a number of reasons besides the expedition of its proceeding in the public interest for the restriction of pre-accusatory attacks on grand jury proceedings. Avoidance of mini-trial chaos is one. “Normally, there is no...