Weinstein Won’t Exercise Right to Testify Before Manhattan Grand Jury: Is Lack of Access to Information or Other Grounds Real Reason for Refusal to Testify


According to a statement released by Harvey Weinstein’s counsel and widely reported throughout the media, the former producer, and arguably the most visible catalyst of the #Metoo movement, will not testify before a Manhattan Grand Jury where he will likely be charged with numerous violent felony offenses. According to Weinstein’s attorney, the accused mogul will not testify because prosecutors “unfairly denied [Weinstein] access to critical information about this case that [he][] needed to defend him[self] before the grand jury[][.] Mr. Weinstein’s attorneys decided that there was not sufficient time to properly prepare Mr. Weinstein.” Weinstein’s statement further read that due to “[n]ot having access to these materials is particularly troubling in this case, where one of the unsupported allegations is more than 14 years old and the Rape allegation involves a woman with whom Mr. Weinstein shared a 10-year consensual sexual relationship that continued for years after the alleged incident in 2013[.]”

Although some of the above statement likely has merit, keep in mind that prosecutors are not mandated to share all their evidence to a defendant at this stage in the legal process. A bit of a play to gain some favorable public support by asserting a lack of fairness on the prosecution’s part is certainly one defensive strategy, but not the sole or central reason Weinstein is not testifying. Instead, what is not contained within the four corners of a press release or public statement is likely why Weinstein is shrewdly refusing to exercise his right to testify.

If convicted of either First Degree Rape or First Degree Criminal Sexual Act, Weinstein faces a mandatory five year minimum and is exposed to as long as twenty-five years in a New York State prison. Simply, Weinstein can’t fix any of his past alleged mistakes, but he can minimize his exposure going forward by being less aggressive at this stage and more defensive. Remember, Weinstein’s situation is not unique. New York allows any defendant to testify before a Grand Jury. Potentially, a defendant can seek to have certain evidence presented on his or her behalf whether physical or testimonial. That said, even if the evidence and witnesses are favorable, a defense attorney may advise a client to hold off on putting such information before a Grand Jury or prosecutor because the District Attorney, not a judge, has the practical control of the Grand Jury’s reigns.

Before addressing how prosecutors are the gatekeepers controlling the evidence and message in a Grand Jury, know that the legal threshold in such a proceeding is far less than that of a trial jury. Proof beyond a reasonable doubt is pushed aside to the far lesser reasonable cause to believe one of the felonies was committed. As a criminal defense attorney and former prosecutor in Manhattan, I have been on both the delivery and receiving end of bare bone presentations, albeit squarely legal ones. The adage that a Grand Jury can indict a ham sandwich comes not from a bodega, but practitioners in the criminal courts for a very good reason.

Recognizing this minimal standard, the other issue a defendant, including Weinstein, faces is that while you have a right to an attorney, he or she cannot object to or ask questions as if the matter was before a judge or trial jury. A criminal attorney’s role is far more limited. Objections can be made and brought to the attention of a Grand Jury Judge, but within the room, it is the prosecutor and Grand Jurors who arguably run the show. Complicating matters, as Assistant District Attorneys are permitted and in fact ask leading questions of the defendant and an accused’s counsel cannot reply to get the client back on track, blunt the force of a bad answer or prevent the client from locking him or herself into adverse statement. Somewhat neutered, a defendant’s attorney has no ability to re-direct or cross examine the People’s witnesses even if the proceeding can be challenged through motion practice.

Although not likely part of a conversation with Weinstein, a Grand Jury can “mercy kill” a case. “Can” and “would” are quite different in the context of Weinstein and there is no fathomable way that the Grand Jury would do so for him. Simply, no good would come of a man testifying who’s only viable defense at this stage is consent. A skilled prosecutor would poke, prod, attack, question, re-ask, and push Weinstein to break out as many inconsistencies as possible and to cuff him into testimony that would adversely impact Weinstein in the long run. Moreover, because defense counsel is not asking questions and cross examining witnesses, such a defense would lack the necessary component of challenging the complainants.

Sometimes, whether you, as an accused, have compelling evidence or mediocre defenses, the Grand Jury is the place to present those defenses. Other times, such as the situation where Weisntein finds himself, waiting for trial is the best and only way a defense can succeed when all the tools of your arsenal are available.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors.

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