Indictment Dismissed For Potential Bias Of Grand Juror

The Criminal Procedure Law does not contain a specific provision to challenge a grand juror or an Indictment based on that grand juror’s familial relationship to a witness. But as the Third Department’s decision last week in People v Revette, 2008 NY Slip Op 01452 demonstrates, this does not mean an Indictment cannot be dismissed because of such a relationship.

The case involved a prosecution for arson. One of the grand jurors was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury. When the prosecutor was informed of this he asked the grand juror, “So you don’t think you could be fair and impartial? Your [sic] not just listening to him.” The grand juror simply responded, “I can stay.” The prosecutor then indicated they would evaluate the situation later before the grand jury deliberations and vote to see if the grand juror could be impartial.

In finding that the Indictment should have been dismissed under CPL 210.35(5), the Third Department stated that even though this statute contains no provision for dismissal because of a relationship between a grand juror and witness, dismissal is merited in “instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury.

The Court found that in the case before it that the grand juror’s response to the prosecutor’s question of whether she could be impartial was ambiguous, and the prosecutor never followed through with his suggestion that they would reevaluate the situation before grand jury deliberations began. Thus, the Court dismissed the indictment with leave to the People to resubmit the charges to a new grand jury.

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