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Defense Counsel, Not Defendant, Has the Ultimate Authority to Determine Whether Defendant Should Testify Before the Grand Jury

The First Department (after noting that the record supported closing the courtroom for the undercover officer’s testimony, even though the trial court did not discuss alternatives) determined the trial court properly found defense counsel had the ultimate authority to decide whether defendant should testify before the grand jury and therefore properly denied defendant’s request to testify against the advice of his attorney:

Criminal Court … properly determined that defense counsel had the ultimate authority to decide whether his client should testify before the grand jury, and properly denied defendant’s request to testify against the advice of his attorney. Defendant’s argument “incorrectly equates the right to testify before the grand jury with the right to testify at trial” … . “[U]nlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant . . . with respect to strategic and tactical decisions like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority in their lawyers” … . The strategic decision to testify before the grand jury requires the “expert judgment of counsel” …, because it involves weighing the possibility of a dismissal, which, in counsel’s judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses. People v Brown, 2014 NY Slip Op 02683, 1st Dept 4-17-14

 

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