Understanding criminal grand juries and a motion to dismiss an indictment in New Jersey

What states use grand juries in criminal prosecutions? 

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.  Grand Juries have received a lot of attention lately mostly because two Texas Grand Juries failed to return indictments (no bill) against current Cleveland Brown Quarterback Deshaun Watson.  Watson is now suspended for at least 6 games despite maintaining his innocence and the two grand juries finding that there was insufficient evidence for any of the 24 alleged sexual assault cases to go to trial.  If Watson’s case had occurred in a state like Pennsylvania, he would have gone through a preliminary hearing.   

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.)

Grand Juries in New Jersey

Rules 3:6 governs Grand Juries in New Jersey.  These rules indicate 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.

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

 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.  This is similar to a civil preponderance standard, and the standard used in Pennsylvania’s preliminary hearings.

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! 

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