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February 5, 2010

New York- Unsealing Grand Jury Minutes For Prosecution Of Malicious Prosecution Case

By Michael H. Joseph

Michael Joseph won an important decision concerning the availability of grand jury minutes to a Plaintiff in a malicious prosecution action.

To establish a claim for malicious prosecution, a plaintiffs must show that (1)the defendant initiated a prosecution against plaintiffs, (2) the matter terminated in plaintiffs’ favor, (3) there was no probable cause for the criminal proceeding and (4) the proceeding was motivated by actual malice.

Where the Plaintiff has been indicted, the defendants always claim that the Plaintiff is unable to demonstrate a lack of probable cause because an indictment creates a presumption of probable cause. However, where an indictment was the product of fraud, perjury, and the suppression of evidence a Plaintiff sufficiently rebuts any presumption of probable cause
Therefore, to prove his case, malicous prosecution Plaintiffs must establish what occurred in the grand jury. This poses a problem because the transcripts are automatically sealed.

In a ground breaking decision in the case of People v. Manganiello, Michael Joseph, convinced the Court to unseal the grand jury minutes because the Plaintiff had a compelling need for disclosure of the grand jury minutes to rebut the presumption of probable cause associated with a grand jury indictment. While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep’t 1991).While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep’t 1991).

Grand jury minutes may be provided to a civil litigant where there is a compelling and particularized need for access. Ruggiero v. Fahey, 103 A.D.2d 65 (N.Y.A.D. 2 Dep’t 1984); Richburg v Morgenthau 184 App Div 2d 316 ( N.Y.A.D. 1 Dep’t 1992). In the Manganiello case, the Court held that allegations that certain witnesses committed perjury before the grand jury were sufficient to establish a compelling need for access.

 
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