New Jersey Attorney General Law Enforcement Directive 2006-5

Grand Jury, Indictment, New Jersey Constitution, New Jersey Attorney General Law Enforcement Directive 2006-5It happens. Not often, not even occasionally, but sometimes it happens. Indeed, “rarely” best describes a grand jury decision not to indict. Accordingly, in a rare occurrence, a Union County grand jury did not indict a police officer for allegedly shooting a man who attacked him. This post will summarize the right to a Grand Jury indictment in the context of New Jersey Attorney General Law Enforcement Directive 2006-5.

Shortly after 7 p.m. on Sept. 20, 2016, an assailant with a two-foot knife threatened residents in Clark, NJ, per the news. He allegedly threatened an elderly woman walking her dog. Subsequently, he chased other residents who came to help her.

Eventually authorities arrived, one off-duty officer on foot (Officer A), and one on-duty officer (Officer B). Officer B approached while in his car, and the assailant slashed his face through the open window. Seeing this, Officer A approached the armed assailant.

Officer B joined Officer A on foot, and both officers ordered the assailant to drop the knife. Ignoring the officers and continuing to advance, the assailant came about five to 10 feet away from Officer A. Consequently, Officer A fired a single shot. Struck in the abdomen, the assailant stopped advancing, dropped the knife and began complying with the officers’ commands.

The Prosecutor’s Office presented the officer-involved shooting to a Union County grand jury. Subsequently, the grand jury returned a no-bill, declining to indict and finding the shooting was legally justified.

New Jersey Constitution:
Grand Jury and Indictment

No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury. N.J. Const. art. 1, ¶ 8

In all criminal prosecutions the accused shall have the right…to be informed of the nature and cause of the accusation… N.J. Const. art. 1, ¶ 10

The grand jury is of ancient origin. In our justice system, the grand jury safeguarded citizens against unwarranted criminal accusations. Additionally, it served as an accusatory body, advancing the public interest in the discovery of evidence.

The grand jury safeguards a defendant from criminal accusations unless it finds sufficient cause, or probable cause, for the charge. Probable cause means a prima facie case of the state’s evidence satisfying each element of the crime charged. Additionally, the State need not persuade the Grand Jury beyond a reasonable doubt. Instead, the Grand Jury need only find the defendant more likely than not committed each element of the crime. Finally an indictment memorializes this finding, and justifies subjecting a defendant to trial and other aspects of the ordeal.

New Jersey Attorney General Law Enforcement Directive 2006-5

New Jersey Attorney General Law Enforcement Directive 2006-5 and its 2015 revision (Directive) require the investigation of use-of-force incidents and their presentation to a grand jury. This Directive applies to any use-of-force by a law enforcement officer involving death or serious bodily injury to a person. Additionally, it applies to the use of deadly force with no injury. Furthermore, it applies where any injury to a person results from the use of a firearm by a police officer.

The Directive applies to the use of such force by an officer while acting in the performance of official duties. Additionally, the Directive applies to the use of force by an off duty officer acting as an authority. But it does not apply to a criminal investigation of the use of force by an officer not acting in the performance of official duties or exhibiting evidence of his law enforcement authority.

Conflict of Interest Inquiry

First, the Directive and its amendment calls for a comprehensive conflict of interest inquiry. It prohibits investigations to determine the lawfulness of police use of force by police agencies. Instead, it requires a County Prosecutor or the Division of Criminal Justice to conduct and directly supervise the investigation.


Second, it requires confidentiality of the investigation. Unless authorized by a superior, the investigation must not be shared either directly or indirectly with any law enforcement or civilian witness to the use-of-force event, including the officer under investigation. Any unauthorized disclosure must also be investigated and, among other administrative decisions, may be presented to a Grand Jury.

Additional Limitation of Conflicts

Third, the Directive prohibits a department or agency that also employs the officer under investigation from participating in the investigation.

Grand Jury Review

Fourth, the Directive requires Grand Jury review if the use of force resulted in death or serious bodily injury. Alternatively, the Directive requires Grand Jury review in the interests of justice. But the Directive waives Grand Jury review only where the undisputed facts indicate the use of force was legally justifiable. Nevertheless, a decision not to present the investigation to a Grand Jury triggers extensive documentation and internal review.

Grand Jury Proceedings

Fifth, the Grand Jury has the authority only to issue either a true bill or no bill. For example, the Grand Jury returns a “true bill” when it has found a basis to indict. But “no bill” means the Grand Jury has declined to indict. Therefore, the Directive requires the prosecutor to provide the Grand Jury with the model instructions for the relevant crimes. Additionally, unlike almost all other grand jury presentations, the prosecutor must also provide all applicable justification defenses.

Public Statement

Sixth, the Directive requires the ranking government official to prepare a public statement when the use-of-force will not be presented to the Grand Jury, or when the Grand Jury returns a “no bill.” The statement must include:

  1. specific findings of the investigation concerning the factual circumstances of the incident,
  2. specific findings concerning the lawfulness of the police use of force under the New Jersey Code of Criminal Justice,
  3. a statement explaining the details of the comprehensive conflicts inquiry, and
  4. a statement explaining that the ranking government official reviewed the matter and complied with all relevant provisions of this Supplemental Directive.

Administrative Review

Seventh, the ranking government official must submit the use-of-force investigation for administrative review when the grand jury presentation will not be made, or when the grand jury returns a “no bill,” declining to indict.

Community Engagement

Finally, County Prosecutors must engage with members of their communities about the New Jersey Attorney General Law Enforcement Directive 2006-5. The programs should explain the

  • investigative process,
  • police officer’s statutory and constitutional rights,
  • significance of the presumption of innocence, and
  • the burden on the State to disprove a justification defense beyond a reasonable doubt.

New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the right to Grand Jury and Indictment. Call Now—(856) 812-0321