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No Prosecutorial Misconduct Where Prosecutors Told the Grand Jury that the Witness Defendant Asked the Grand Jury to Call Would Not Provide Relevant Evidence/Prosecutor’s Role in Grand Jury Explained in Some Detail

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the prosecutors did not impair the integrity of the grand jury proceedings by suggesting a witness the defendant asked the grand jury to subpoena would not provide relevant testimony. The court explained the prosecutor’s role in the grand jury:

CPL article 190 governs the conduct of the grand jury and the parties which appear before that body, and it requires that all grand jury proceedings remain secret to protect the essential functions of those various actors (see generally CPL 190.05; 190.25 [4] [a]). Under this statutory regime, the exclusive “legal advisors of the grand jury are the court and the district attorney” (CPL 190.25 [6]), and their decision to present certain items of evidence and to exclude others is for the most part limited only by the rules of evidence applicable at trial (see CPL 190.30 [1]…).  In the same vein, the prosecutor enjoys “broad powers and duties, as well as wide discretion in presenting the People's case” to the grand jury … . Indeed, the prosecutor “determines the competency of witnesses to testify,” and he or she “must instruct the jury on the legal significance of the evidence” … .

Notably, though, due process imposes upon the prosecutor a “duty of fair dealing to the accused and candor to the courts,” thus requiring the prosecutor “not only to seek convictions but also to see that justice is done” … . This duty extends to the prosecutor's instructions to the grand jury and the submission of evidence … . The prosecutor also cannot provide “an inaccurate or misleading answer to the grand jury's legitimate inquiry” …, nor can the prosecutor accept an indictment that he or she knows to be based on false, misleading or legally insufficient evidence … .

Even under those principles, “[a] Grand Jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution” … . That being so, the prosecutor need not tread too lightly in pressing the People's case or rebutting the defendant's assertions. For example, where the defendant chooses to testify, the prosecutor may, within limits, ask probing or even skeptical questions of the defendant about issues raised by his or her testimony … . Similarly, in the role of legal advisor, the prosecutor need not instruct the grand jury on the full extent of its investigatory and deliberative powers … . The prosecutor may decline to instruct the grand jury about a variety of defenses, and he or she need not disclose certain forms of exculpatory evidence or reveal to the grand jury the circumstances surrounding the authorities' investigation of the case … . These examples illustrate that, in occupying a “dual role as advocate and public officer” … , the prosecutor is not obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense. People v Thompson, 10, CtApp 2-20-14

 

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