Should a Defendant testify in front of a grand jury in New Jersey

As we have previously indicated, there is no one way for a lawyer to defend a client charged with a sex offense in New Jersey. Thus, taking the position that the defendant will never testify in front of the grand jury is ridiculous. However, such a tactic is very, very risky. Only an experienced sex crimes defense lawyer can make a proper determination as to whether or not this is the right move. There are a number of considerations.


The first of which is the facts of the case as presently known by the defense. Its not always easy to get a good picture of the State’s case pre-indictment. If plea discussions are underway (and they should be in every case regardless of the Defendant’s position) the defense attorney should have at least some pre-indictment discovery. This may take a while to get if it is ever received. Thus, one early source of information is a bail motion. The State will likely divulge at least a few facts about the case. While the defendant is another source of information, it is not always the most reliable source of information.


Knowing your prosecutor is very important. Of course, that doesn’t mean that you have to deal with this person every day. In fact, some of our best wins came from prosecutors that we had just met. Like any other group of people, there are many different types of prosecutors. If the prosecutor is the type that will stop at nothing to convict the defendant, than you might not want to put the defendant up in front of the grand jury. However, if the prosecutor has actually suggested that the defendant testify, then there is a much better chance for a no-bill (i.e. the grand jury will not indict the defendant). Of course, not every prosecutor is so overt. Most may fall somewhere in the middle. Thus, an experienced sex crimes defense lawyer knows that you have to not only size up the case but size up the prosecutor as well.


Before the client testifies in front of the grand jury, a dry run should be conducted. Even if the defense lawyer is a former prosecutor from many years ago, I don’t suggest that the defense lawyer conduct a mock examination of the defendant. The prosecutor is a stranger to the defendant that should be feared. Its hard to fear the person that has been paid to protect you. Thus, my preference is to bring in a recently retired former prosecutor to do the mock examination without any prior introduction. It would also help to have a few mock grand jurors to evaluate the performance of the defendant. If the defendant does not perform well, the same will likely be repeated in front of the grand jury.


If the defendant does testify, he or she still has a 5th amendment right at all times. Thus, the defense attorney should insist on being present outside the grand jury room. At any point, the defendant should be permitted to consult with the attorney prior to answering the question. Of course, this will agitate all involved so it should only be done in the most extreme circumstances. However, I’ve never seen a client have to actually come out and use this option. Sometimes the mere availability of such an option presents the necessity of using it.


While this isn’t a common option in most cases, it has been successful in every time this firm has utilized it. However, that is only due to the work that gets put into the decision making process itself.  If you need help with any sex crime, call our team of New Jersey Sex Crimes Attorneys today.

Posted on February 24, 2013, in The Pre-Trial Process and tagged , , . Bookmark the permalink. Leave a comment.

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