On August 3, 2022, a three-judge appellate panel decided the Hudson County case of State v. Terrell Tucker. The principal issue under N.J.S.A. 2C:35-5 was whether the prosecutor’s expert could provide an opinion about the defendant’s guilt during the grand jury presentation.
Judge Gooden Brown wrote for the Appellate Division in relevant part: The holding in Cain arose in the context of a jury trial, and the opinion is silent on whether it applies to grand jury proceedings. On the one hand, grand jurors and petit jurors differ in key respects and serve separate and distinct roles. “The grand jury’s role is not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced. Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury.” Additionally, “the grand jury’s core purpose is to ‘determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.'” Thus, unlike a petit jury, “the grand jury need not be exposed to all evidence that could be used at trial to create a reasonable doubt regarding the defendant’s guilt.” Unlike at a trial, a defendant has no right to present evidence or confront the witnesses against him at a grand jury proceeding.”
However, grand and petit juries are similarly tasked with considering evidence and making independent determinations whether to indict or convict, respectively. That said, the Cain Court’s analysis regarding the “profound influence” of expert testimony from law enforcement officers “on the deliberations of the jury” is no less applicable to grand juries. Such expert testimony regarding an accused’s state of mind will likely infringe on the grand jury’s independent decision-making function by improperly influencing its ultimate determination. Moreover, such testimony would adversely affect the fairness and integrity of a grand jury proceeding, much like it would a jury trial.
Because the case law regarding grand jury presentations is stacked heavily in favor of the prosecution, most trial courts rely on the language from Hogan to deny every motion to dismiss an indictment. This contributes to grand juries being used as rubber-stampers by prosecutors as opposed to the independent bodies they were originally intended to be.
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