So I’ve been following the facts on a series of cases picked up by the Batavian and Daily News. The very short story, with some extrapolation, is that a grand jury stenographer contracted by the district attorney was apparently using the AudioSync feature in our modern stenotypes. This caused the defense attorneys to seek dismissals of the indictments. As best I can tell, and after writing Batavian author Howard Owens and one of the attorneys, who had stated it was a Judiciary Law misdemeanor, I pieced together the following with regard to grand jury recording law in New York:
Criminal Procedure Law 190.25(4) makes it very clear that grand jury proceedings are secret. Judiciary Law 325 gets into how it shall be lawful for a stenographer to take grand jury proceedings, and doesn’t explicitly allow audio recording. Penal Law 215.70 talks about unlawful disclosure and lists the crime as a class E felony. Finally, Penal Law 110 tells us an attempted E felony becomes an A misdemeanor.
What can we further infer from all that? Well, as best I can tell, the indictments are only dismissed if it’s shown that the recording altered the testimony or proceedings in some way, and the defense is given the burden of proving that. As of writing, no indictment has been dismissed because of recording. That said, this opens up a serious concern for grand jury stenographers across New York. Recording the grand jury proceedings may be construed as attempted unlawful disclosure, and thanks to Judiciary Law 325, it may be difficult or impossible to argue that such recording is in the course of your lawful duties. Like Frank Housh in the video linked above, I was shocked that we could work in this industry for years and not ever be told the law surrounding that. Admittedly, I was a grand jury stenographer in New York City for months, and while I understood that not recording was a condition of my employment, I did not know that recording could theoretically give rise to a criminal prosecution. It is up to us to keep ourselves and each other informed, and now we know. This is not a joke, and you could go to jail for up to one year and have a criminal record for up to ten years on an A misdemeanor.
That caution stated, as of writing, there has been no prosecution of any grand jury stenographer for that specific reason, so it seems that the district attorneys or assistant district attorneys involved in these cases disagree with defense’s contention that this rises to the level of a misdemeanor. It also appears that recording of the proceedings does not automatically invalidate indictments.
The court rules Part 29 and Part 131 did not come up in my correspondence with anyone involved in this matter, but they are tangentially related and may be worth a review. And remember, nothing written here pertains to federal grand jury proceedings. We are talking strictly the New York State courts.
Any future updates to this matter will be posted right here.