Chief Justice Rabner continued in relevant part: We recognize that due process concerns are more likely to surface only in limited situations, such as a third or fourth presentation of similar facts in search of essentially the same indictment. In light of all of the above considerations, we hold that if grand juries decline to indict on two occasions, the State must obtain advance approval from the Assignment Judge before prosecutors can submit the same case to a third grand jury.
We rely on our supervisory authority over the administration of criminal procedures, under Article VI, Section 2, Paragraph 3 of the State Constitution, to require that practice. See State v. Henderson. We acknowledge and accept the Attorney General’s representation that the office is not aware of a case presented to a third grand jury, after multiple no bills, without additional evidence.
To determine whether prosecutors can make a third presentation to a grand jury, Assignment Judges should consider the following factors: (1) whether there is new or additional evidence to present — which would counter the notion that re-presentation is an arbitrary act; (2) the court’s assessment of the strength of the evidence in light of the probable cause standard — to help guard against an unjust proceeding; and (3) the conduct of the prosecution — specifically, whether there is evidence of misconduct in the prior presentations. Those core issues directly address concerns about fundamental fairness in this context and appear to be a better fit than the factors set forth in Abbati.
We agree with the Appellate Division that defendant’s indictment should not be dismissed. Only one grand jury declined to indict; the second grand jury returned an indictment that the trial court dismissed on unfounded legal grounds. The above framework therefore does not apply to this case.
In any event, the prosecution presented materially new evidence to the third grand jury. An expert in burglary investigations testified about the significance of the items defendant and his father possessed; among other things, the expert explained how certain items were consistent with a burglary scheme. In addition, the evidence viewed as a whole was quite strong and plainly established probable cause. Finally, we do not find that the prosecution engaged in misconduct in the prior grand jury presentations. See Shaw. For the reasons outlined above, we affirm the judgment of the Appellate Division.
The Chief uses broad language that leaves prosecutors with a great deal of leeway. If a prosecutor wanted to present a case several times within this framework, their approach is simple: withhold some evidence during each presentation. Since factor (1) reads new “or additional” evidence to present, they are free to do so. An opinion that had a meaningful effect on our due process rights would require (1) “new evidence of which the state and its agents were not aware of at the time of a previous presentation.”
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