Role of Defense Attorneys in Grand Jury Proceedings

Though the United States Supreme Court determined in Hurtado that there is no Constitutional right to a grand jury indictment, the New Jersey Constitution has provided such a right since 1844. This right is today embodied in Article 1 paragraph 8 of the State Constitution and applies to all charges that were criminal offenses at common law. See Board of Health of Weehawken Twp. v. New York Cent. R. Co., 10 N. 294, 1952. All the same, even in New Jersey the role of the lawyer in grand jury proceedings remains somewhat limited.

All matters before a Grand Jury in New Jersey are brought by the Prosecutors Office today. In the Matter of the Grand Jury Appearance Request by Larry S. Loigman, Esq., 183 N.J. 133, 789 A.2d 173 (App. Div. 2002). Prosecutors are given great leeway here, they may charge a defendant with any offense at their discretion and need not charge lesser included offenses. State v. Medina, 349 N.J. Super, 107 (App. Div. 2002); State v. D.A.V. 348 N.J. Super. 107 (App. Div. 2002). Still, a Grand Jury has authority to investigate criminal activities on its own initiative and file charges even though no such complaint was signed against a defendant. Regardless of who initiates a Grand Jury investigation, there is no specific right for a defendant or defense counsel to take part in the proceeding. Thus, the primary role of a defense attorney in regards to the grand jury is filing motions to dismiss improper indictments.

New Jersey courts have determined that grand jurys mission is to clear the innocent, no less than to bring to trial those who may be guilty." State v. Hogan, 144 N. 216, 228 (1996) (quoting State v. Hart, 139 N.J. Super. 565, 568 (App. Div. 1976); United States v. Dionisio, 410 U.S. 1, 16-17 (1973). That Court further ordered that the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Id. at 236. The State Supreme Court has imposed a limited duty on prosecutors to disclose to the grand jury evidence which satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Id. at 237 (citing State v. Smith, 269 N.J. Super. 86 (App. Div. 1993), cert, denied, 137 N.J. 164 (1994).

These two prongs have been narrowly defined by later courts, but were originally set out in Hogan. The Hogan Court discerned that evidence directly negates the guilt of the accused if it can squarely refute an element of the crime in question." Ibid. (emphasis in original. The Hogan Court also stated that a court must evaluate the quality and reliability of the evidence within the context of the nature and source of the evidence, and the strength of the States case," to determine whether evidence is clearly exculpatory. Ibid.

Should a defendant make a showing establishing both of these two prongs, a grand jurys indictment may be dismissed. The Hogan Court held that the credible testimony of an unbiased, reliable witness met the prongs of the aforementioned test and must be submitted to a grand jury. In State v. Gaughran, the Court held that physical evidence of unquestioned reliability demonstrating that a defendant did not commit the crime alleged also satisfied the requirements. 260 N.J. Super. 283, 287; 615 A.2d 1293 (1992).

A number of other seemingly important pieces information have been found inadequate to require presentation to the grand jury. Both an accuseds denial of involvement in a crime and evidence of recantation are not required to be brought before to a grand jury. In State v. Scherzer the Appellate Division denied the possibility that the testimony of defense expert witnesses could be necessary information to a grand jury. In State v. Cook the Appellate Division held that testimony by two witnesses that a person other than the defendant perpetrated the alleged crime need not be presented where 3 other witnesses identified the defendant. Finally, in State v. Evans the Law Division held that a co-defendants statement absolving the defendant and claiming complete responsibility for a crime need not be presented to the grand jury.

The Court in Hogan remarked that New Jersey courts have not been reluctant to scrutinize grand jury proceedings where the decision-making process was fundamentally unfair. supra, Hogan at 229. New Jersey Courts have demonstrated a greater willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors' ability to make an informed decision whether to indict. State v. Murphy, 110 N.J. 20, 35 (1988). In State v. Gaughran, the Court noted there was no issue as to the sufficiency of the evidence before the grand jury, but rather whether the failure to present exculpatory evidence stripped the Grand Jury of its function to protect the innocent from unfounded prosecution."