Relates to the presence of a superior court judge at certain stages of a grand jury proceeding involving the submission of a criminal charge against a police officer for a felony charge specified in article 120, 121 or 125 of the penal law while acting in the course of his or her official duties.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7194
SPONSOR: Lentol TITLE OF BILL: An act to amend the criminal procedure law, in
relation to grand juries
This measure is being introduced at the request of the Chief Judge of
the State. This measure would amend provisions of sections 190.25 and
210.20 of the Criminal Procedure Law in relation to operation of the
grand jury and disclosure of its proceedings.
Recent cases where grand juries voted not to bring charges against
police officers involved in deadly encounters with civilians have gener-
ated a crisis of confidence in the grand jury system. To some, the grand
juries functioned as designed, to others the failure to indict served to
intensify concern that the grand jury process is, flawed. The public
debate, however, has been founded on an incomplete understanding of
these grand jury proceedings because secrecy rules prevent public access
to those proceedings. This lack of transparency has served to inhibit
informed discussion on the role of the grand jury in cases of signif-
icant public interest and, more broadly, has exacerbated tension between
the police and the communities they serve. Public calls to require
special prosecutors in cases where police officers clash with civilians
are inevitable where grand jury proceedings are conducted in secret. No
matter how fair and dedicated, prosecutors are subject to the perception
that the grand jury serves as an unchecked arm of law enforcement.
The current measure is designed to restore the public's faith in the
grand jury process for the types of cases that typically generate public
mistrust. It does so by reaffirming and strengthening the supervisory
role of the court in grand jury proceedings and by amending secrecy
rules to allow greater access to certain proceedings that are of signif-
icant public interest.
The institution of the grand jury has a long and rich history. Devel-
oped in England in the twelfth century to do the bidding of the monarch
and subsequently to serve as a bulwark between the state or sovereign
and the accused, it is now firmly embedded in the United States Consti-
tution as part of the Fifth Amendment. However, the Federal constitu-
tional right to a grand jury is not binding on the States (Hurtado v.
California, 110 U. S. 516 (1884)). Thus, in New York State, the grand
jury derives its authority, not from the Federal Constitution, but from
the State Constitution and the Criminal Procedure Law (N.Y. Const. Art.
I §§ 6, 14; Wood v Hughes, 9 NY2d 144, 149 (1961)).
Although the Criminal Procedure Law vests the district attorney with
significant discretionary authority over the grand jury process, the
grand jury is foremost a process of the court and not the district
attorney. The grand jury is impaneled by a superior court, constitutes a
part of such court and is to be drawn and impaneled for such terms as
established by the Chief Administrative Judge in consultation and agree-
ment with the Presiding Justice of the appropriate Appellate Division
(see CPL 190.05, 190.10; see also 28 NYCRR 128.17 and 200.13).
Grand jury secrecy is also required by statute (CPL 190.25(4)), and
there are many sound reasons supporting secrecy: to prevent tampering
with the grand jury's investigation, to prevent the target from fleeing
to avoid prosecution, to encourage reluctant witnesses to cooperate, and
to protect those who are not indicted. In most cases, secrecy rules do
not inhibit public understanding of the criminal justice process because
when a grand jury votes to bring charges, there is ample public informa-
tion about the case through the discovery process, public proceedings
and trials. However, where a grand jury votes to dismiss the charges,
there are no further proceedings and grand jury proceedings remain
secret, thus denying the public even a minimum level of access to the
criminal justice process. While, ordinarily, this is not inappropriate,
in cases of significant public interest the secrecy rules may become an
obstacle to meaningful understanding of the criminal justice process
and, on balance, counter-productive to assuring public faith in the
institutions of government. Accordingly, this measure is drawn to
address those cases by authorizing a court to provide limited disclosure
of grand jury proceedings in dismissed cases of significant public
interest.
Section one of the measure amends paragraph three of section 190.25 of
the Criminal Procedure Law to provide that a judge must be present at
grand jury proceedings involving charges against a police officer for
felony assault, strangulation or homicide where the officer was acting
in the course of his or her official duties. The measure leaves
unchanged the district attorney's fundamental role in presenting
witnesses, determining what evidence to introduce and what charges the
grand jury will consider. With a judge presiding over the proceedings,
however, the court will make evidentiary rulings, advise the grand jury
on legal questions, and provide legal instructions to the jury. By this
measure, the court determines whether the charges submitted are
supported by legally sufficient evidence, and it expressly authorizes
the court to advise the grand jury, where appropriate, that additional
witness may be called to testify.
Section two of the measure adds a new subdivision 4-a to section 190.25
of the Criminal Procedure Law to allow limited public access to grand
jury records in cases that end in complete dismissal of all charges.
Before permitting disclosure, the court must first find that the public
is likely aware of the criminal investigation, knows the identity of the
subject of the investigation (or the subject has consented to disclo-
sure), and that there is significant public interest in disclosure. Upon
making this determination, the court may disclose the criminal charge or
charges submitted to the grand jury, the legal instructions with which
it was provided, the testimony of all public servants who testified
before the grand jury and of all persons who provided expert testimony,
and the testimony of all other persons who testified before the grand
jury, redacted to prevent discovery of their names and such other
personal data or information that may reveal or help to reveal their
identities. Disclosure may be further limited or denied completely upon
a reasonable likelihood that disclosure may lead to discovery of the
identity of a witness who is not a public servant or expert witness,
imperil the health or safety of any grand juror or witness appearing
before the grand jury; jeopardize any current or future criminal inves-
tigation, threaten public safety or otherwise be against the interest of
justice.
This measure would have no meaningful fiscal impact and would take
effect immediately.
LEGISLATIVE HISTORY:
None. New bill.
