Monday, February 9, 2009

Prosecutors Must Give a Grand Jury Clear Instructions

Perhaps a DA may get a Grand Jury to indict a ham sandwich, but only after clearly instructing the Grand Jury as to the law. In Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007 (2009 NY Slip Op 00921 [4th Dept 2/6/09])the Court held that the failure of the prosecutor to provide a Grand Jury with clear and correct instructions on the law, rendered invalid he Grand Jury's action. The Court held that

It is "incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe" (Morgenthau v Cuttita, 233 AD2d 111, 113, lv denied 89 NY2d 1042; see Matter of Grand Jury of Onondaga County [appeal No. 1], 101 AD2d 1023). Here, we agree with appellant that the special prosecutor's instructions concerning appellant's duties were vague and inadequate. "Without a [clear and adequate charge] as to . . . [appellant's] duties, it was not only impossible for the Grand Jury to determine that [appellant] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [appellant]" (Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284, 285; see Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 100 AD2d 692). Indeed, we agree with appellant that the conclusions of the grand jury with respect to the alleged violation of those duties were in fact contradictory to the special prosecutor's instructions concerning appellant's duties.

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