Grand Jury Indictment In New Jersey

New Jersey Grand Jury Charge

In addition to reading this post, please watch this video from the New Jersey Judiciary about the Grand Jury Indictment.

Constitutional Right To Grand Jury Indictment

The New Jersey Constitution prohibits the prosecutor from filing criminal charges in Superior Court without approval of the Grand Jury. Therefore, the requirement for the government’s executive branch to file a grand jury indictment is an individual right. This does not apply, however, to every complaint filed in municipal courts across the state.

Thus, the N.J. Constitution provides,

“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 (emphasis added).

“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 (emphasis added).

What does the right to Grand Jury Indictment mean?

To understand the significance of the right to Grand Jury Indictment, consider the following procedural context.

Who may file a complaint?

Any person can file a complaint in court alleging an offense.1 The complaint is a written statement of essential facts constituting the offense charged. Additionally, the complaining witness must attest to the facts in the complaint.2 But filing a complaint is not enough to compel another person to appear in court. Instead, that depends on who filed the complaint and whether an arrest warrant or summons will issue.

Who filed the complaint?

If a private citizen filed the complaint, then the law requires a judicial finding of probable cause that an offense was committed and that the defendant committed it before issuing an arrest warrant or summons. Additionally, if the court is going to issue an arrest warrant, it must also find legal justification for it.3 Absent a finding of probable cause, however, the judge must dismiss the complaint.4

If a law enforcement officer filed the complaint, however, the law allows the officer to issue a summons without involving the courts.5 But if the the officer wants an arrest warrant then the court must find not only probable cause but also the legal justification under the Court Rules for the its issuance. Absent this justification, however, the court must issue a summons.6 The next step assesses whether the most serious allegation is a crime or a petty offense.

What is the most serious offense charged?

Grand Jury Indictment In New JerseyMunicipal Court subject matter jurisdiction generally only includes offenses with a maximum penalty of no more than 6 months incarceration. Thus, New Jersey law designates these as Disorderly Persons and Petty Disorderly Persons Offenses. If the municipal court is going to retain subject matter jurisdiction, then generally the only step that remains is service of process either personally, by ordinary mail, or by simultaneous mailing.7

If the most serious offense charged carries a penalty that exceeds 6 months incarceration, however, then the Municipal Court must transfer the complaint to the County Prosecutor and Criminal Division Manager in the Superior Court immediately upon issuance.8 But this does not mean the complaint has been filed in the Superior Court. In addition to all the foregoing procedures, before a prosecutor files charges in the Superior Court, he must get the approval of a grand jury.

What procedures govern the grand jury?

To begin, the Assignment Judge for each county must summon the grand jury, which consists of 23 people.9 Additionally, the Assignment Judge must inquire, when appropriate, to determine whether any prospective grand jurors are biased. Subsequently, a judge must charge the grand jury.10 Furthermore, the Assignment Judge appoints a foreperson and a deputy foreperson with the power to administer oaths and endorse all indictments.11 In the absence of a clerk, the foreperson or deputy foreperson must make and keep minutes and record the vote of each juror by name on each considered matter. Moreover, the record shall not be made public except on order of the Assignment Judge.12

If a majority of grand jurors find enough evidence to satisfy the elements of the offenses charged, then it must give its approval to the prosecutor and return the indictment in open court.13 But if the grand jury does not find enough evidence, then it must withhold its approval, thus preventing the prosecutor from proceeding in Superior Court.14

What is the function of an indictment?

The indictment gives notice of pending criminal charges to the defendant. Additionally, under New Jersey law, notice of a crime provides satisfactory notice for lesser included offenses, too.

In order to provide adequate notice to the accused, the ‎indictment must:

  1. inform the ‎defendant of the offense charged against him, so that he may adequately prepare his ‎defense;
  2. be ‎specific enough to allow the defendant to avoid later prosecution for the same offense; and
  3. be specific enough to prevent the trial jury from convicting ‎the defendant of an offense the grand jury did not consider or charge.

‎Consequently, all these requirements safeguard freedom for all individuals. Indeed, no man should be brought to trial for a crime unless a grand jury has first found a sufficient ‎basis for the charge.

Have you been charged with offenses pending a grand jury indictment?

New Jersey Trial Advocate Michael A. Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide confidential consultations in all cases where the State plans to file or already has filed an indictment against you.



1 The municipal court administrator or deputy court administrator shall accept for filing every complaint made by any person. R. 7:2-1(b). See also R. 3:2-1(a) (crimes).
2 The complaining witness shall attest to the facts contained in the complaint by signing a certification or signing an oath before a judge or other person so authorized by N.J.S.A. 2B:12-21. R. 7:2-1(a).
3 R. 7:2-2(b)(2).
4 R. 7:2-2(a)(1).
5 R. 7:2-2(a)(2).
6 R. 7:2-1(e).
7 R. 7:2-4.
8 R. 3:2-1(b).
9 R. 3:6-1.
10 R. 3:6-2.
11 R. 3:6-4.
12 R. 3:6-5.
13 R. 3:6-8(a).
14 R. 3:6-8(b).