On March 4, 2020, the New Jersey Supreme Court decided the Bergen County case of State v. Jerome Shaw, Jr. The principal issue under N.J.S.A. 2C:1-9 is whether approval from the Assignment Judge is required to present a case to the grand jury for a third time after they refused to indict on two prior occasions.
Chief Justice Rabner wrote for the unanimous Court in relevant part: We begin from a different starting point than most other jurisdictions. Not only is the grand jury an arm of the court in New Jersey, but the Judiciary also exercises supervisory authority over grand juries under the doctrine of fundamental fairness. Our sparing use of that authority in the grand jury context reflects important concerns.
Limits on re-presentations should enhance the grand jury’s historic and independent role as a buffer between the State and potential defendants. That accords with the grand jury serving as a “democratic safeguard to our judicial system.”
When a grand jury declines to indict, repeated and nearly identical presentations to another grand jury can undermine the grand jury’s screening function — to shield the innocent from prosecution. The practice can also be seen as forum shopping for a desired outcome, which can increase the risk that an innocent person will be charged. In certain circumstances, such an approach can amount to an abuse of discretion and raise due process concerns. It can also deprive a defendant of a fundamentally fair grand jury proceeding.
Other considerations weigh against imposing extensive limits. As noted earlier, grand jury presentations are distinct from trials. To establish probable cause, prosecutors understandably make abbreviated presentations. Beale, § 8:6 at 8-57. Beyond that, if a grand jury improperly decides not to indict in the face of ample evidence, that decision cannot be appealed, but it can be rectified through a revised presentation. Ibid. Grand juries also have the power to continue to investigate even after they return a no bill. Thompson, 251 U.S. at 413-14.
While the existence of grand juries was once a fundamental right that our revolutionary heroes fought for, it has by and large become a rubber stamp for prosecutors’ offices. This is due in no small part to the secrecy of grand jury proceedings and the fact that neither judges, nor defendants, nor defense attorneys are privy to the proceedings, aside from the cold record of the transcribed portions of the proceedings. Even then, those portions are only available to the defense after getting advanced permission from the prosecutor and paying a substantial fee for the transcriptions.
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