Grand Jury Clears NFL QB Deshaun Watson – How do Pennsylvania and New Jersey use Grand Juries in Criminal Proceedings? 

Recently, Houston grand jury declined to indict NFL star Quarterback Deshaun Watson on 10 criminal complaints filed against him last year, which alleged a range of illegal sexual act including his exposing himself, purposely touching therapists’ hands with his penis and sexual assault.  After hearing the evidence, grand jury declined nine cases and prosecutors didn’t even present the tenth — stating that it did not believe the evidence presented by prosecutors had shown probable cause to support criminal charges.   This case presents a great example to explain the grand jury system in Pennsylvania and New Jersey where our criminal defense law firm represents persons charged with crimes and offenses. 

What does a Grand Jury do in Pennsylvania? 

When many people think of the word jury they think of a group of citizens tasked with determining a person’s guilt or innocence following a trial. While this is correct, a grand jury is convened in a similar way to a “petit” jury (jury used at a trial). 

In Pennsylvania, there are “investigating”  and indicting grand juries. Investigating grand juries do not have the power to indict (formally charge) a person with a crime(s). A Pennsylvania grand jury is composed of 23 citizens who, after hearing evidence, determine if sufficient evidence exists to find that a crime was more than likely committed within its jurisdiction. A grand jury’s typical jurisdiction is its county, such as Philadelphia, but Pennsylvania does have multi county investigating grand juries though extremely rare. If 12 or more of the 23 grand jurors agree that sufficient evidence exists, it issues a written document known as a “presentment”.

A presentment summarizes the evidence and recommends that the assigned prosecutor file charges against the person(s) who is the target or subject of the grand jury’s investigation. While a prosecutor is not required to act on a grand jury’s recommendation they do in most cases. The grand jury’s presentment often serves as the prosecutor’s “affidavit of probable cause” which Pennsylvania requires in order to file criminal charges.

The work of a state grand jury is secret and a defendant along with his/her defense counsel only becomes aware of its findings upon an indictment. Once indicted or charged, the defendant and his/her attorney only have 60 days to prepare a case for trial unless a Court grants a motion for a continuance. Until June 2012, grand juries did not exist in Pennsylvania. The previous grand jury system was actually abolished as unnecessary in 1976. After 1976 until 2012, the preliminary hearing process took the place of grand juries but the Pennsylvania Supreme Court in June 2012 granted their approval following motions by state prosecutors.

Grand juries are not permitted in all cases and to utilize this rarely used system in place of a preliminary hearing, a prosecutor must formally represent to the Court that the grand jury is needed because of the threat of witness intimidation. Defense attorneys prefer preliminary hearings over the grand jury process.

At a Pennsylvania grand jury a defense counsel is not permitted to cross examine testifying witnesses or present evidence. Witnesses, however, testifying before grand jury are permitted to consult with counsel at any time following a question. While defense counsel do not have an absolute right to be in grand jury hearing room, judges will more than likely allow it. Answers to questions will frequently create a self-incrimination issue under the Fifth Amendment along with a right to counsel issue under the Sixth Amendment. This is one of the major differences between federal and state grand juries.

The bottom line is that Grand Juries are rarely used in Pennsylvania to indict persons for crimes and offenses.  In most cases, a person facing criminal charges within the Commonwealth will appear before a lower court judge at a Preliminary Hearing.  This judge will determine if enough evidence exists for a matter to proceed to trial.  If you receive a subpoena for a Pennsylvania grand jury it is important to immediately consult with an attorney. I do not recommend ever appearing for a grand jury without an attorney as any statement you make could later be used against you at a trial.

What does a Grand Jury do in New Jersey? 

Unlike Pennsylvania, New Jersey maintains a grand jury system for all of its serious offenses, otherwise known as crimes, within the Garden State. A New Jersey grand jury is composed of its citizens, who are selected from voter registration, driver’s licenses, and tax lists. These 23 individuals, known as grand jurors, hear evidence presented by a county prosecutor and determine if there is sufficient evidence to formally charge an individual with a crime.

The Burden of Proof to Indict at a New Jersey Grand Jury

If a grand jury finds that there is sufficient evidence, they return a finding known as a “True Bill”, which triggers a proceeding within the criminal division of the Superior Court for that particular county. An indictment isn’t a finding of guilt, but rather that enough evidence exists for a person to stand trial on a particular charge, otherwise known as an “indictable crime” within the Garden State.   

Examples of Indictable Crimes in New Jersey include:

• Crimes Of The First Degree – Some Drug and Illegal Narcotic Offenses—Heroin, Cocaine (5 ounces or more) , Homicide (murder, manslaughter) and Rape
• Crimes Of The Second Degree-some sex crimes, aggravated arson, burglary, kidnapping, some illegal gun and firearm offenses (Graves Act), some theft offenses, and some drug and illegal narcotic offenses crimes—Heroin or Cocaine (more than 1.5 ounces but less than 5 ounces and other Schedule I or II).
• Crimes Of The Third Degree – arson, some illegal gun and firearm offenses (Graves Act) some type of robbery and theft offenses, certain DWI Offenses, and some drug and illegal narcotic offenses crimes—Heroin or Cocaine (less than 1.5 ounces but less than 5 ounces and other Schedule I or II
• Crimes Of The Fourth Degree – stalking, certain robbery offenses, some DWI offenses, and forgery

The Prima Facia Burden of Proof at a Grand Jury

There is a Prime Facia burden of proof at a grand jury which is the same standard that Pennsylvania uses at a preliminary hearing (This is also the same evidentiary standard New Jersey and Pennsylvania judges use to issue search warrants.

The Commonwealth, unlike the state of New Jersey, doesn’t maintain an indicting grand jury system for most of its criminal offenses. Pennsylvania uses indicting grand juries only where the district attorney’s office petitions the court to proceed through an indicting grand jury because of situations involving witness intimidation or some other circumstance which makes a preliminary hearing impractical.

If the grand jury does not find that there is sufficient evidence (aka “No Bill”), it may find that enough evidence exists to charge a person with a less serious offense (disorderly or petty disorderly) and remand the case to municipal court which is a court of limited jurisdiction.  This is what happened in the Watson case, but it doesn’t appear that prosecutors will pursue the cases against him any further within the lower courts. 

Motion to Dismiss the Indictment for Lack of Prima Facie Evidence

Once a grand jury indicts, the only recourse for an accused individual is for his or her attorney to consider a motion to dismiss the indictment based on insufficient evidence to establish a Prima Facia case against the accused. Keep in mind however that a New Jersey criminal trial court will only dismiss an indictment only where the grand jury’s decision was based on “manifestly deficient or defective” grounds.

This is a very high evidentiary standard to overcome for the defense and, in most situations, a trial court won’t overturn the decision of a grand jury. While an accused can appeal a trial court’s decision denying a motion to dismiss to an appellate court, a New Jersey appeals court will find in most cases that it is within the discretion of the trial court to make this determination. Remember that a grand jury doesn’t determine guilt, but only that a clearly innocent person does not face prosecution because of some over-zealous prosecutor, partisanship, or some personal vendetta. See New Jersey Constitution, Article 1, Paragraph 8.

What are the obligations of a New Jersey Prosecutor before a Grand Jury?

The state, through the prosecutor, isn’t required to even inform the grand jury that the accused didn’t have a motive for committing the crime for which the state seeks the indictment.  There is also no obligation for the prosecution to present evidence which could impeach the credibility of the witness testifying before the grand jury (i.e. the witnesses prior criminal history). The prosecution is only required to present “clearly exculpatory evidence” such as physical evidence of unquestioning reliability which demonstrates that the accused didn’t commit the alleged crime. The standard for “clearly exculpatory” evidence is high, and the New Jersey Constitution allows trial courts to act with substantial caution before concluding that the prosecution’s decision to not present this evidence amounted to an error which will allow them to dismiss the indictment entirely.

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