If the defendant is charged by felony complaint, which of the following is true in the grand jury setting?

• A. The defendant may testify and may have counsel present
• B. The defendant may not testify or have counsel
• C. The defendant must testify and counsel cannot attend
• D. The defendant may testify but cannot have counsel present

Answer: (A)

In New York, when a felony is charged by complaint and is presented to a grand jury, the defendant’s status is that he may be called as a witness and may have counsel present if he testifies. The grand jury proceeding is investigatory and the defendant isn’t on trial there, but if the prosecutor puts the defendant on the stand, the defendant has the option to testify and may be advised by counsel. Counsel’s presence is allowed to help protect the defendant’s rights during testimony, and testifying is not mandatory.

That’s why the statement that the defendant may testify and may have counsel present is the best choice: it reflects the option to testify and the right to have legal advice during grand jury testimony. The other options wrongly imply that the defendant cannot testify or cannot have counsel, or that testifying is mandatory with no counsel, which does not align with how the grand jury process operates.