NJ Law Enforcement Directive 2006-5 and Grand Jury Waiver

Michael Smolensky

NJ Law Enforcement Directive 2006-5I blogged previously about NJ Law Enforcement Directive 2006-5 and it’s 2015 supplement (Directive).

Ordinarily it requires a grand jury to review use of force by law enforcement. The grand jury must determine whether the use of force was legally justified.

But recently internal governmental review without a grand jury presentation determined a New Jersey state trooper who shot a woman’s tire was justified, per the news. In this case, authorities decided not to convene a grand jury to review the officer’s use of force.

Narrative

A tow truck driver and State Police trooper tried to assist a disabled car. The motorist, however, drove toward the trooper while on foot, per the news. Consequently, the trooper drew his weapon and ordered the woman to stop. Although she obeyed, the car began moving backwards while he was trying to pull her from it. So the woman drove the car forward, bumping the trooper. Therefore, the trooper fired three shots into the rear driver’s side of the car. But the woman continued to drive, and the trooper had to chase her in his SUV. After a short distance, the motorist stopped. Therefore, the trooper pulled her out through the passenger-side door and arrested her.

NJ Law Enforcement Directive 2006-5

NJ Law Enforcement Directive 2006-5 sets forth procedures for the government to follow:

  • after any use of force by a law enforcement officer involving death or serious bodily injury to a person, or
  • where deadly force is employed with no injury, or
  • where any injury to a person results from the use of a firearm by a law enforcement officer.

Law enforcement officer means any law enforcement officer operating under the authority of the laws of the State of New Jersey.

Depending on a variety of factors, either one of two agencies will oversee the use of force investigation. They are the County Prosecutor or the Director of the New Jersey Division of Criminal Justice (Director).

Ordinarily, the Directive calls for a grand jury to determine whether the shooting was legally justified. But it also allows the government to waive grand jury review. The Directive provides in pertinent part,

Where the undisputed facts indicate that the use of force was justifiable under the law, a grand jury investigation and/or review will not be required, subject to review by and prior approval of the Division of Criminal Justice, except…where the final decision will be made by the Attorney General or his designee. In all other circumstances, the matter must be presented to a grand jury.

County Prosecutor’s Recommendation of Waiver

For investigations overseen by the County Prosecutor, the decision to waive grand jury presentation triggers review by the Director. Accordingly, a County Prosecutor must recommend waiver to the Director. The recommendation must summarize the results of the investigation. Additionally, it must provide a legal analysis of the facts. After reviewing the Prosecutor’s report, the Director may require the Prosecutor to supply additional information or analysis. Furthermore, the Director may direct the prosecutor to conduct more investigation and provide a supplemental report.

The Director, not the County Prosecutor, makes the final decision whether to waive grand jury review. Along the way, the Director may defer to the County Prosecutor’s recommendations as to local community interests. But to determine the existence of a dispute, the Director must independently assess the Prosecutor’s findings. Additionally the Director must independently assess whether presentation to a grand jury would serve the interests of justice.

Director’s Recommendation of Waiver

For investigations overseen by the Director, the decision to waive grand jury presentation triggers review by the Attorney General. Accordingly, the Director must recommend waiver to the Attorney General. The recommendation must summarize the results of the investigation. Additionally, it must provide a legal analysis of the facts. After reviewing the Director’s report, the Attorney General may require the Director to supply additional information or analysis. Furthermore, the Attorney General may direct the Director to conduct more investigation and provide a supplemental report.

The Attorney General, not the Director, makes the final decision whether to waive grand jury review. The Directive requires the Attorney General to review the recommendation similar to the Director’s review of a County Prosecutor’s recommendation.

New Jersey Criminal Defense Lawyer Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the right to grand jury. Call Now—(856) 812-0321.