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Court Discusses Role of Counsel at Grand Jury Proceeding


A man indicted for drug crimes such as cocaine possession with intent to sell, denied that he had sold cocaine, but testified to his crack possession of three vials for his own use. A police officer testified that he observed the accused man receive money from an unidentified woman and then drop a vial of crack cocaine, which the woman picked up from the ground. A New York Criminal Lawyer said the officer further testified that he arrested the accused man within five minutes, finding four dollars and crack possession.

The accused man testified that he received the vials from three guys whom he knew. When asked to name the three men, he inquired whether he could speak to his lawyer. He was permitted to do so and replied that the guys are not really involved in what he was accused of. A New York Criminal Lawyer said when the question was repeated, the accused man answered without further consulting his attorney. Presumably in an attempt to establish that the accused man’s cocaine possession with intent to sell, the assistant district attorney asked him how he obtained the money. The man testified that he received welfare, had saved some three hundred dollars while in a program of work release from State prison where he had been until three months beforehand, and also received money from his family. At one point in the accused man’s testimony, the assistant district attorney inquired whether the money he spent to go to movies was welfare money.

A New York Drug Possession Lawyer said the assistant district attorney reviewed the accused man’s prior criminal law violations that include four felony and seven misdemeanor convictions. In detail the convictions include four robberies, one invalid use of a credit card, a fare beat, a trespass, and criminal possession of controlled substances. The assistant district attorney repeatedly emphasized the robbery convictions. The assistant district attorney then asked the accused man to tell the grand jury what happened on the occasion of his arrest for marijuana possession. The accused man explained that he was arrested when he took a bag of marijuana out of his pocket to give to a friend whom he owed money. The assistant district attorney finally asked him to tell the grand jury what he had been arrested for on the occasion in 1990 when he pled guilty to criminal possession of a controlled substance.

When the accused man was asked for the reasons of his previous guilty pleadings, he generally replied that he pled guilty to those crimes because he committed them.

He volunteered that he did not stay in one place long because the police lock people for anything. The assistant district attorney was prompted to ask whether the accused man had ever been locked up for a crime that he did not commit. The accused man’s answer was incoherent.

The assistant district attorney began another question, which he interrupted with an admonition to the defense attorney to not talk to the accused man while being asked questions. The assistant district attorney continued to question the accused man about his guilt on all other occasions when he was arrested. The assistant district attorney requested to reflect on the record that the defense attorney is instructing the client how to answer the questions.

After the accused man testified, the assistant district attorney recalled the officer who had initially testified. The assistant district attorney paraphrased the accused man’s testimony and asked the officer if it was the accurate testimony. The officer replied that the man’s testimony was not accurate.

The law provides, in pertinent part that any person who appears as a witness and has signed a waiver of immunity in a grand jury proceeding, has a right to an attorney. The attorney for such witness may be present with the witness in the grand jury room. The attorney may advise the witness, but may not otherwise take any part in the proceeding. The statute represents a balance between concern for fairness to the potential accused before the grand jury and concern that the presence of counsel for the accused would interfere improperly with the grand jury’s proceedings. The balance was achieved by limiting the role of counsel to being present with the witness to advise the witness, but otherwise to not participate in the proceedings. Such advice as counsel gives the witness before the grand jury may not interfere improperly with the proceedings of the grand jury.

The role of counsel before the grand jury in protecting against harmful conduct by the prosecutor is necessarily limited by the statute which inhibits the defense counsel from taking any role in the proceeding beyond giving advice to the client. Unlike a trial, where the defense counsel can raise objections, the accused before the Grand Jury is not in a position to object, and, under these circumstances, nor is his attorney.

When the prosecutor does engage in abuse of the defendant before the grand jury, or otherwise oversteps the bounds of propriety by asking questions improper in form or in their connotation to the grand jury, or calling for irrelevant, privileged or otherwise improperly prejudicial answers, the defense counsel must seek the assistance of the court supervising the grand jury proceeding.

Even though the witness has counsel present in the grand jury room, the presence of counsel for the witness does not relieve the prosecutor of the duty of fairness to the witness. Because the statute explicitly limits counsel’s role within the grand jury to advising the witness, the witness is placed in the unenviable position of being at the prosecutor’s mercy.

Apart from the assistant district attorney’s characterization of communications between counsel and client within the grand jury as providing answers, the court does not find that the accused sought improper assistance from his attorney. On each occasion when the assistant district attorney noted the consultation on the record, it appears to have been proper. However, accused man’s counsel failed to seek the assistance of the court when appropriate, and failed to advise the accused man to decline to answer the questions that may have been immaterial to the investigation, or have called for privileged answers.

When the accused man was asked to name the men from whom he obtained the cocaine found in his possession, he reasonably may have asked his counsel whether the question was within the scope of the grand jury inquiry as he understood it at the time he waived his privilege against self-incrimination. When the defense counsel apparently consulted with the accused man, the accused man was asked whether he had been arrested for criminal sale of a controlled substance prior to his pleading guilty to criminal possession of a controlled substance. The question was an improper, insofar as witness may be properly impeached only on the basis of bad acts or convictions, and not upon the unsubstantiated allegations of an arrest. The defense counsel could have properly advised the accused man not to answer the question until a ruling could be obtained from the supervising judge.

When the assistant district attorney admonished counsel not to speak with the accused man while being asked also involved an improper question, which was whether the man had ever been jailed for a crime that he did not commit. The question was simply immaterial to the grand jury’s investigation into the man’s alleged vial of cocaine possession with intent to sell. Again, counsel could have properly advised the accused man not to answer the question until a ruling could be obtained from the supervising judge as to whether it was a proper question about matters material to the investigation.

The Queens Criminal Attorneys from Stephen Bilkis and Associates are well-versed with criminal laws that would enable you to win your crime related lawsuits. Whether you have been charged with a drug offense, sex crimes or theft, we will ensure that your rights are protected. Working with a Queens Drug Lawyer gives you better chances of finding justice that you deserve for the drug crimes committed against you.

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