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Bar News - September 17, 2014

Opinion: With Changes Afoot, What Role for Grand Jury in the Modern Age?


To eliminate the unnecessary delay caused by first filing felonies in the Circuit Court, a statewide committee will be convened to make recommendations for legislative changes necessary to authorize filing felony charges in the Superior Court in the first instance.

– Draft Felony Caseflow Management Plan NH Superior Court

Superior Court Chief Justice Tina Nadeau’s draft caseflow management plan and forthcoming legislative proposals from the advisory committee process she initiated last year invites the bar, scholars, legislative leaders and the public to examine the process for initiating felony charges in our superior courts, with an eye toward making the process easier and cheaper for courts to manage.

It is realistic to examine this process in an era where the demands for public goods, including court administration, vastly outstrip the public resources to pay for those goods. At the same time, however, these proposals necessarily will affect institutions and practices with deep historical roots that reflect important values.

The initial presentment of some felony criminal complaints in the circuit courts, then “binding over” the charges to the superior court, sometimes holding a probable cause hearing, then waiting for the grand jury to indict, before the “real” criminal process of discovery and trial preparation starts, makes little economic sense in a world where the grand jury rejects few indictments and most cases end in a plea. The new plan alludes to a formal charging process that emerged from the mists of our collective history to inhabit a very changed world.

Unlike its federal counterpart, the New Hampshire Constitution does not expressly mention the grand jury or even use the word “indictment.” The legislature has provided minimal structure for the grand jury process (RSA Ch. 600, RSA §601:1), and a single court rule (NH R. Crim. Proc. 8) governs it.

In my experience, New Hampshire grand juries function like their federal counterparts: refusing to “true bill” indictments when they find probable cause lacking and functioning as investigators in some cases, especially public integrity cases, some homicides and sometimes when allegations of criminal wrongdoing arise in the course of conflicts between branches of government. Furthermore, New Hampshire statutes (RSA 601:2, RSA 601:3-a) roughly parallel current federal legislation and court rules in providing a mechanism to waive indictment to facilitate a prompt resolution by guilty plea.

On initial inspection, the new court rules and the caseflow management plan signal, at least, a de-emphasis on the use of grand juries to initiate criminal charges. There is a large literature on grand juries; some authors approve highly of the institution, some do not. In thinking about the functions of grand juries, however, three areas of concern counsel that the legislature and public proceed with caution.

First, how will a direct filing system insure the integrity of the charging decision? Much of the criticism of grand jury focuses on how rarely it vetoes the prosecutor’s charging decision. How would a direct filing process address the situation of the criminal defendant who believes that he or she was charged unfairly? Is it important that the grand jury, a body independent of the court and the prosecutor, used to be responsible for weighing whether charges should go forward?

In a direct filing system, can the superior court winnow baseless charges at an early stage of the process without either becoming an arm of the prosecution, disrupting the presumption of regularity that traditionally attaches to the prosecutor’s exercise of discretion, or making the decision too late, after a defendant’s reputation has been sorely damaged by the charge? It is realistic to expect that the court will need to either encourage waivers of indictment or to discourage the number of challenges to criminal charges, but can it take those actions without burdening defendants’ constitutional right (possibly incorporated from the US Constitution) to an independent evaluation of the charge?

The second concern arises in the area of investigations. The grand jury is not part of the legislative, judicial or executive branch. As a result, it is peculiarly well situated to undertake sensitive investigations and act as a neutral body during inter-branch conflicts. If we diminish the grand jury for some purposes, do we undermine its ability to undertake that important function?

A third concern is that upsetting the institutional checks and balances on charging may not be needed to encourage frank, prompt and productive plea negotiations at the conclusion of criminal investigations. It may be that defendants, their counsel and prosecutors engage in a nuanced balancing of legal, economic and psychological factors that is more influenced by the strength of the evidence, the strength of the charge and the likelihood of success at trial than by the charging process itself. If that is true, then a direct filing system runs the risk of disrupting the grand jury process without promoting prompt resolution of new charges.

It may well be that it is time to reform the process for initiating felony charges in New Hampshire. We will be well-served if the conversation about reform respects the form, function and history of the charging process, not just short-term realism. As the process moves forward, it also is important to engage the legislature and the public in this discussion to protect its confidence in the institutions designed to serve our state.

Charles Putnam

Charles Putnam is a clinical professor of justice studies at UNH. He served as a member of the New Hampshire Attorney General’s Office from 1986 to 2001. The views expressed here are his own and do not represent the university or the AG.

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