EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 4, 2014

The Eric Garner Case & the Legal Standards That Apply to New York Grand Juries

There's been a lot of discussion in the wake of the grand jury's decision not to indict an NYPD officer in connection with the death of Eric Garner. Having worked at an appellate court in New York for two years, I thought I would do a post laying out the legal standards applying to the case.

First, the speculation is that the NYPD officer was charged with second-degree manslaughter, criminally negligent homicide, and reckless endangerment. Let's lay out the elements of each of those crimes:

Second-Degree Manslaughter

Section 125.15 of the New York Penal Law states that

A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person; or 2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or 3. He intentionally causes or aids another person to commit suicide. Manslaughter in the second degree is a class C felony. 

In turn, Section 15.05(3) of the New York Penal Law states that

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

Criminally Negligent Homicide

Section 125.10 of the New York Penal Law states that

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony. 

In turn, Section 15.05(4) of the New York Penal Law states that 

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Reckless Endangerment

Section 120.25 of the New York Penal Law states that

A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.

 

Reckless endangerment in the first degree is a class D felony.

In turn, Section 120.20 of the New York Penal Law states that

A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.
Reckless endangerment in the second degree is a class A misdemeanor.

Second, let's turn to the burden of proof at a grand jury proceeding. Whenever I teach my students about grand juries, I always use some version of Judge Sol Wachtler's famous quote that, "if requested by the prosecutor, a New York Grand Jury would indict a ham sandwich." But what's the actual burden of proof?

Section 190.65 of the New York Penal Law states that

1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense. 2. The offense or offenses for which a grand jury may indict a person in any particular case are not limited to that or those which may have been designated, at the commencement of the grand jury proceeding, to be the subject of the inquiry; and even in a case submitted to it upon a court order, pursuant to the provisions of section 170.25, directing that a misdemeanor charge pending in a local criminal court be prosecuted by indictment, the grand jury may indict the defendant for a felony if the evidence so warrants. 3. Upon voting to indict a person, a grand jury must, through its foreman or acting foreman, file an indictment with the court by which it was impaneled. (emphases added).

In turn, Section 70.10 of the New York Penal Law states that

The following definitions are applicable to this chapter: 1. "Legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent. 2. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay

So, what is meant by reasonable cause? Consider State v. Pedraza, 853 N.Y.S.2d 476 (2007):

The "reasonable cause standard" has been held to be less stringent than even the "fair preponderance of the evidence" standard applied in many civil and some criminal proceedings and one itself far less stringent than the "clear and convincing" standard sought by Respondent's counsel....[T]he preponderance of the evidence standard, which is based on a "more likely than not" theory (CPL 410.70), is more stringent than that of "reasonable cause"....The issue at this hearing does not involve a violation; but, rather, whether there exists sufficient evidence to proceed to trial.

So, preponderance of the evidence means, "more likely than not," i.e., 50.1%. In turn, reasonable cause is a lower standard than preponderance of the evidence. This means that grand jurors could indict a defendant even if they are less than 50% convinced that (1) the defendant satisfied all of the elements of the crime charged; and/or (2) there is sufficient evidence to convict the defendant of the crime charged.

Take the Eric Garner case. Assume that some witnesses testify before the grand jury that the officer acted reasonably, and assume that other witnesses testify before the grand jury that the officer acted negligently or recklessly. Even if there are more witnesses testifying that the officer acted reasonably, and even if this testimony is more credible than testimony to the contrary, grand jurors can still indict. I'll refer to this as the "some evidence" standard. As noted in People v. Rooks, 158 N.Y.S.2d 985 (1957), there's reasonable cause to return an indictment as long as there is "some evidence of each of the elements of the crime, sometimes referred to as a prima facie case...." Beyond that, any evidence to the contrary, "this is the stuff which goes before a trial jury to explain or contradict the evidence which otherwise warrants a grand jury to charge one with crime." It is only when there is no evidence of an element of crime, or when evidence of an element isn't deserving of any credibility, that reasonable cause cannot be satisfied. 

-CM

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