How to Dismiss an Indictment in a New Jersey Criminal Court

Our criminal defense law firm represents person charged with crimes and offenses in New Jersey and Pennsylvania.  These states share borders, bridges and often sports teams (the Sixers will be in Camden—book it).  While New Jersey and Pennsylvania share many things, they have very different criminal procedures. 

What States utilize the Grand Jury system? 

New Jersey, unlike Pennsylvania, maintains an indictment system under its crimes code. The Garden State is one of 23 jurisdictions that exclusively employs this type of criminal prosecution system and the others are the following:  Alabama, Alaska, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New York, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia. 

These states all require a grand jury for all serious crimes such as aggravated assault, robbery, burglary, most illegal gun and firearm offenses, and all homicides.  These are otherwise known as indictable offenses in New Jersey. 

In a state like Pennsylvania where a grand jury and an indictment isn’t required, probable cause to charge a defendant is determined at a preliminary hearing.  At a preliminary hearing, a lower court judge will listen to arguments from both sides before determining whether or not the case should proceed to a criminal trial (aka held for trial.)

What you need to know about a Grand Jury in New Jersey

Rules 3:6 governs Grand Juries in New Jersey.  This rule indicates that no person other than the Grand Jurors, the Prosecutor, the Clerk of the Grand Jury, along with witnesses under examination, may be present while the Grand Jury is in session.

The stenographer is also present to record the proceedings. Following the proceedings, a stenographer record is made of all testimony, comments by the prosecuting attorney and all colloquy between prosecuting attorneys, witnesses, or members of the Grand Jury.  After an indictment is returned, at the request of a Defendant, a transcript of the Grand Jury proceedings is made available.  The Prosecutor may also request a copy.

What it takes for a Grand Jury to indict

To return an indictment, twelve (12) or more Grand Jurors must agree.  The Judge overseeing the proceedings may order the indictment be kept secret until the Defendant is in custody or released pending trial. Grand Jurys in New Jersey cannot exceed twenty-three (23) persons and the presiding Judge must inquire as to their backgrounds, which may reveal potential biases or other issues that could affect their impartiality.  If your criminal defense lawyer wants to challenge the indictment, it is necessary for them to obtain a copy of the Grand Jury proceedings to determine the basis for any Motions. 

Motion to Dismiss an Indictment

Once the grand jury has acted or voted to indict a person in New Jersey, an indictment is only dismissed on the clearest and plainest ground and only when the indictment is manifestly deficient or defective.  This means that prosecutor evidential obligation is to present a prima facie case that the accused has committed a crime. 

In other words, a criminal court  trial judge should not dismiss  an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.  A trial judge must evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime has occurred and that the defendant committed it.  This is a very high evidentiary standard for the defense to overcome. 

 With that said, there are situations where it is necessary for your criminal defense lawyer to consider a Motion to dismiss an indictment, despite a Grand Jury returning one.  Indictment is not a conviction, but simply that the State has met its initial burden of proof that it was more probable not that a crime occurred, and the person charged committed that crime. 

Indictable crimes are very serious in New Jersey, as a person faces the possibility of a state prison sentence.  A Motion to dismiss an indictment is used if the evidence was insufficient to support the charges within the indictment and it can be based on several factors, including the State’s failure to properly instruct the Grand Jury and/or the State’s witnesses misleading the Grand Jury.

It is important to understand that even if a Court dismisses the indictment, it can dismiss it without prejudice.  This allows the State to re-present the matter to a second Grand Jury in an attempt to correct the deficiencies which led to the dismissal.

A Motion to dismiss an indictment must focus on the elements of the crimes in question.  The defense must argue that the State failed to present any evidence to support all of the elements within a specific crime. If for example, recklessness is an element of an offense and the State does not present it to the Grand Jury or does not establish it, a person cannot be convicted of a crime in which recklessness is an element.

In the event that the State re-files or re-presents the evidence to a second Grand Jury, it is important that your attorney focus on any new evidence presented.  If the State fails to present any new evidence, then the defense can rely on the Court’s previous ruling to dismiss the indictment.

For more information about grand juries in New Jersey and preliminary hearing in Pennsylvania please contact our criminal defense law firm! We look forward to representing you and your family during this difficult time!

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