Vol. L · No. I FOL. LArticles
Avery & Avery, Esqs. Ridgefield, NJ John S. Avery, Esq.
What Is a Grand Jury (and How NJ Indictments Work)
By John S. Avery, Esq.
The grand jury is one of the oldest institutions in American criminal procedure, and one of the most misunderstood. In NJ, every indictable (felony-equivalent) charge must be presented to a grand jury before formal indictment. The grand jury is not a trial; it is a probable-cause screening proceeding. The proceedings are secret. The defendant is generally not present. The defense lawyer is not present. The standard is probable cause, not beyond a reasonable doubt. This post explains how the grand jury works in NJ, why it matters, and what defense counsel can do about it.
General-information post on NJ grand-jury procedure. Not legal advice. Free consultation: (201) 943-2445.
Constitutional and Statutory Foundation
The grand jury is rooted in:
- Fifth Amendment to the U.S. Constitution: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” (federal application — does not apply to states)
- Article I, Paragraph 8 of the NJ State Constitution: “No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury…”
- R. 3:6 — NJ Court Rules — grand-jury procedure
- N.J.S.A. 2A:73-1 et seq. — grand-jury statutory framework
The state constitutional grand-jury right is robust — every indictable matter must be presented unless the defendant waives.
How a NJ Grand Jury Operates
Each county has at least one grand jury at any given time, sworn for a fixed term. The grand jury has 23 members; 12 affirmative votes are required to return an indictment. The prosecutor presents the State’s case; the grand jury hears and votes.
The procedural arc:
- Charging complaint — police charge an indictable offense in municipal court at first appearance
- Preliminary hearing or waiver — under R. 3:4-3, the defendant may demand a probable-cause hearing in municipal court or waive
- Pre-indictment conference — the prosecutor may extend a plea offer
- Grand-jury presentation — if no resolution, the prosecutor presents the case to a grand jury
- True bill or no bill — 12 affirmative votes return a true bill (indictment); fewer is a no bill (case ends or returns for further investigation)
- Filing the indictment — the indictment is filed in the Superior Court Criminal Part; the defendant is arraigned
What Defense Counsel Can Do
The grand-jury proceeding itself is secret and one-sided. The defense lawyer is not present. But there is meaningful work:
1. Pre-Indictment Resolution
Many indictable matters resolve before grand-jury presentation — through a downgrade to a DP-tier complaint, through Pretrial Intervention, or through plea to a complaint-only charge. Defense counsel’s pre-indictment work focuses on this off-ramp.
2. Submitting Defense Materials to the Prosecutor
The defense may submit exculpatory or mitigating materials to the prosecutor for grand-jury consideration. State v. Hogan, 144 N.J. 216 (1996) addresses the prosecutor’s Brady-equivalent obligation to present clearly exculpatory material to the grand jury.
3. Defendant Testimony Before the Grand Jury
Under R. 3:6-7, the defendant may testify before the grand jury, with counsel present in a limited capacity. Whether to do so is a tactical decision. Most defendants do not testify; the grand jury indictment standard is so low that defense testimony rarely prevents indictment, and the testimony locks in a position that may complicate trial defense later.
4. Post-Indictment Motion to Dismiss
After indictment, defense counsel may file a motion to dismiss under R. 3:25-1 for grand-jury defects: insufficient evidence, Hogan violation (prosecutor failed to present clearly exculpatory evidence), defective instructions on the law, prosecutorial misconduct in the grand jury room.
The motion to dismiss is rare in success — State v. Vasky, 218 N.J. Super. 487 (App. Div. 1987) sets the high bar — but it is the defense lawyer’s principal post-indictment grand-jury tool.
Common Misconceptions
”The grand jury decides if I’m guilty.”
No. The grand jury decides only whether there is probable cause to charge. It is not a trial. Guilt is decided by a petit jury (or the court at a bench trial) after indictment.
”If I’m indicted, I’m convicted.”
A common saying — “a grand jury could indict a ham sandwich” — captures the low standard. Indictment is the start of the criminal proceeding, not the end of it.
”The defendant has to testify.”
The defendant has a right not to testify under the Fifth Amendment and the NJ analog. Testifying is a tactical option, not an obligation.
”My lawyer can argue to the grand jury.”
In NJ, defense counsel does not appear before the grand jury except in the limited capacity authorized by R. 3:6-7 when the defendant testifies.
What Happens After Indictment
Post-indictment:
- Arraignment in Superior Court Criminal Part
- Discovery production under R. 3:13-3
- Pretrial conference — plea negotiation, motion calendar
- Pretrial motions — suppression, identification, Miranda
- Trial or plea
Grand-jury procedure ends at indictment. The bulk of the defense work happens after.
Frequently Asked Questions
Is the grand jury record available to the defense?
After indictment, R. 3:6-7(b) entitles the defense to grand-jury transcripts on a showing of particularized need.
Can the grand jury issue subpoenas?
Yes — N.J.S.A. 2A:73-2. The investigative grand jury has substantial subpoena power, used in white-collar and complex investigations.
How long does a grand jury serve?
Standard NJ grand juries serve for a fixed term, typically 16 weeks. Investigative grand juries can be impaneled for longer.
Can the prosecutor re-present a no-billed case?
Yes, with leave of the court under R. 3:6-9(b) — the re-presentation requires authorization.
Free Consultation
For NJ indictable defense and pre-indictment resolution:
- Call: (201) 943-2445
- Office: 559 Bergen Boulevard, 2nd Floor, Ridgefield, NJ 07657
- Online: Free consultation request