Do I have a right to testify at the Grand Jury and what is the difference between testifying before the Grand Jury and the Petit Jury?
The first consideration in this question is whether the individual has been charged with Aggravated Sexual Assault or Sexual Assault. Both crimes are governed by N.J.S.A. 2C:14-2. Aggravated Sexual Assault is a first degree crime. Sexual Assault is a second degree crime. Both are subject to the No Early Release Act (NERA), which requires that the individual serve 85{74bbbd36a4df8b83bd1805c8c4f34bcc3063e84848f392c2fd8bb03fcdaa883e} of their prison term before becoming eligible for parole.
A criminal defendant has an absolute right to testify before the Grand Jury. Rather, such an individual can request permission from the Prosecutor’s Office to testify in front of a Grand Jury.
This is a very complicated scenario in which the Defense has to weigh the cost and benefits of allowing his client to testify in front of the Grand Jury to prevent the client from being indicted.
Obviously, every case is different. A defense attorney has no ability to control his client’s testimony in the Grand Jury since the defense attorney cannot be present during the questioning.
This is a huge risk for any defendant and the attorney who represents him or her. Furthermore, if a defendant testifies before the Grand Jury, this will affect whether he testifies or not in a trial since the Grand Jury testimony would constitute prior testimony under oath.
A defendant has an absolute right to testify in front of a Petit Jury. By extension, a defendant has the absolute right to remain silent and not testify at his trial. Most recently, George Zimmerman did not testify in his criminal trial in Florida.
To review, a defendant does not have an absolute right to testify before a Grand Jury. However, such a defendant can seek permission from the Prosecutor’s office to do so. Ultimately, the Prosecutor will determine whether to grant such permission. It is a very dicey move by any defendant.
At a trial, a defendant always has the right to testify in his or her defense.