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Bar News - January 21, 2015

Criminal Law: DEBATE: Should the Defense Play a Role in the Grand Jury Process?

In light of mainstream criticism of grand juries and the decline of public trust in the system, attorneys debate whether New Hampshire should alter the way grand juries work.

Grand Jury Works for NH

By Kent Smith

A grand jury is a group of citizens (generally 23) who hear sworn testimony from state's witnesses. After presentation of evidence, chosen solely by the prosecutor, the jury deliberates in secret. The prosecutor need not present all available evidence, or even any exculpatory evidence, provided that a miscarriage of justice does not result.

Typically no record is made of either the testimony or the deliberations. The jury's task is to determine whether a crime has probably been committed, and whether the suspect was probably the one who committed it. Its decision is made by majority vote, provided a quorum is present.

The jury can either return an indictment, or no true bill. An indictment is a finding by the jury that there is sufficient reason to proceed to trial, not a finding of guilt.

People in New Hampshire who are alleged to have committed serious crimes have a statutory and constitutional guarantee to be tried for those offenses only if a grand jury returns indictments against them.

Are there other ways to start the criminal justice process?

Indeed there are. In many states, the prosecutor can elect to begin the process either by presentation to a grand jury, or by filing a charge against a person directly with the court, commonly called "an information." When an information is filed in serious cases, a hearing before a judge is required. Evidence can be presented by both the defense and the state at the hearing, with the judge determining whether probable cause to continue the prosecution exists.

Here in New Hampshire, the accused get both a presentation to a grand jury and a probable cause hearing (except where the indictment is not preceded by an arrest. In those cases, a contested bail hearing is always available).

Other states (e.g., Hawaii and Wisconsin) have more elaborate schemes, which are designed to distance the prosecutor from the process by appointing independent people or bodies to advise the grand jury and the prosecution on the appropriate way to proceed. These procedures generally are cumbersome, time-consuming, and more expensive.

Are grand juries really "putty in the prosecutors hands"?

Not always. True bills are occasionally not returned for reasons known only to the grand jury panel members, because the process is secret, but most of the time, indictments are returned. This may not be as much a result of any manipulation by the prosecutor or bias of the grand jury as it is a reflection of the strength of the evidence presented to the jury.

Criminal cases are, after all, vetted by the police officer, who makes a decision about whether to arrest; the police supervisor, who decides whether to send the case to the prosecuting agency; and the prosecutor, who has an ethical duty to desist if she or he does not believe there is probable cause to proceed.

By the time a case is presented to the jury, it has been thoroughly scrutinized by several people and judged sound. Analogously, it is rarely claimed (Massachusetts excepted) that the drug analysts at state labs are biased and fudge their results, and yet nearly 100 percent of the suspected illegal drug samples sent to labs for analysis are found to contain illegal drugs. That's because guess what? they really are illegal drugs.

Can a prosecutor really indict a ham sandwich?

A better question is: Should a prosecutor indict a ham sandwich? Even the dullest prosecutor soon realizes that when a grand jury returns an indictment on a sandwich, it does not mean a petit jury is going to find the sandwich guilty.

A wise prosecutor who has exculpatory evidence in hand will always present it to the grand jury, knowing that if a grand jury thinks the exculpatory evidence makes it improbable that someone committed a crime, a jury trial is unlikely to produce a guilty verdict, beyond a reasonable doubt. Just like anyone else, prosecutors don't like to look silly: Indict in haste, repent at leisure.

Why do grand juries become controversial?

For two reasons: first, when they indict people; second, when they don't indict people.

The public loses confidence in the grand jury scheme when people believe a citizen has been unjustly indicted, or, as we have seen in recent cases in Ferguson, Missouri, and Brooklyn, New York, when they fail to indict someone the public believes has committed a crime. It is easy to become suspicious of a system that is little known and poorly understood. Few lawyers, let alone citizens, have any direct experience with the grand jury.

How do we keep the trust of the public in the grand jury system?

When a questioned decision, either to indict or not to indict, is made by a grand jury, it is imperative that prosecutors not remain silent and refuse to comment. Rather, there is a pressing need for them to explain the process a grand jury uses to make its decisions. Just because grand jury proceedings and deliberations are secret doesn't mean that the grand jury procedure and process need be concealed.

Should we change to a different system?

No, and not solely because of the hurdles in changing the Constitution and the statutes. No system of deciding who to indict or who not to indict is ever going to be completely free from controversy. Someone in the citizenry is always going to be aggrieved, depending on whose ox is being gored.

Shifting responsibility for the conduct of a grand jury away from the prosecutor and to some other person or body simply transfers the debate about improper conduct to them. If a prosecutor is shown to have manipulated a grand jury to produce an unfair result, then the solution is to change the prosecutor, not the system.

Producing a starting point for a criminal prosecution by our system of grand juries is a good compromise between choosing defendants by lottery and a grueling dissection of the facts. After all, we already have an expensive, time-consuming, and cumbersome process to figure out "whodunit." It's called a jury trial.

Kent Smith

Kent Smith is a prosecutor in Hillsborough County South Superior Court in Nashua. He was admitted to the New Hampshire Bar in 1986.

Restoring a Robust Grand Jury

By Mark Sisti & Jared Bedrick

Criticizing grand juries is the new vogue for mainstream and social-media attacks on our criminal justice system. Despite their traditionally secretive nature, grand jury minutes of recent high-profile cases have been plastered far and wide for all to examine and none to embrace.

Whether a true bill is returned or rejected, prosecutors will be said to have presented too much evidence or not enough, and the grand jury will not escape being labeled as arbitrary a vestigial roadblock manipulated by the prosecutor to frustrate equal justice for political convenience. The rhetoric goes far beyond the tired "ham sandwich" line of yesteryear.

But are these characterizations founded? There was a time when grand jury was not so controversial.

In Costello v. United States, the United States Supreme Court suggested that the grand jury came to us from England as "a fair method for instituting criminal proceedings against persons believed to have committed crimes." The grand jurors were laypeople acting in secret, "free from control by the Crown or judges," and unfettered by evidentiary or procedural rules; permitted to "act on their own knowledge... [and] to make their presentments or indictments in such information as they deemed satisfactory."

Since the time of its adoption in the United States, it has been the "the sole method for preferring charges in serious criminal cases" and its enshrinement in the Constitution confirms its "high place... as an instrument of justice."

It's no surprise, then, that the Founders, who feared tyranny above all else, saw the grand jury as a buffer between the government and its people or, as the New Hampshire Supreme Court suggested in Powell v. Pappagianis, "an engine of discovery which may protect the innocent as well as disclose the identity of the wrongdoer."

One might wonder whether these courts have seen the news. No matter your political or social stripes, it's clear that confidence in the grand jury has hit a new low. So what needs to change for grand juries to earn back the public's trust?

In New Hampshire, this is a perfect time for criminal practitioners to reflect on the first principles of our grand jury process. Talk of felony-first prosecution in the Superior Court and other proposed reforms aim to achieve "better justice faster," but have mainly targeted deadlines and scheduling or streamlining processes.

We believe that increasing the utility of the grand jury is one solution to resolving cases quicker, more efficiently, and more fairly, that has been largely overlooked.

The grand jury process is largely uncontrolled by design, and seems to be anecdotally at least a mere formality, if not a nuisance. Defense attorneys generally cannot foster a client's expectation that a grand jury will fail to return a true bill, and we suspect few prosecutors fret about the same.

Yet it's not uncommon to come across a case that contains one or two pieces of evidence that will ultimately support a not-guilty finding, dismissal, or (most efficiently) nol pros. Our proposition is this: that minimal defense participation in the grand jury process can identify those cases early enough to spare considerable judicial resources and earn the public's trust that full and fair presentations are made in every case, not just those that are high-profile or involve a police defendant.

The model for minimal defense participation can be found in a case from 1988 in which the state had sought murder charges against a man based on a tip from a person in the New Hampshire Hospital suffering from frequent hallucinations. The defense petitioned the superior court to compel the state to make the grand jurors aware of the tipster's mental health history. The ensuing litigation highlighted the tension between the state's prosecutorial autonomy and the court's obligation to supervise grand jury proceedings.

Having determined that the evidence was exculpatory, a superior court justice ultimately resolved the issue by determining that the court's supervisory role extended far enough to require the jurors simply to be aware of the evidence; however, he did not seek to control the state's presentation of that evidence. The state in that case did exactly what we hope to see in a reformed grand jury process: it furnished the evidence to the grand jury unadorned allowing them to draw their own conclusions. No true bill was returned.

This anecdote illustrates that even minute defense participation can make the process fair by empowering the grand jury with more information. Not only is this entirely consistent with its time-honored investigatory function, but improves the efficiency and fairness that the modern system so demands.

Fortunately, the new Initial Appearance pilot rules in Strafford and Cheshire County superior courts make instituting this reform simple. By calling for a pre-indictment, post-discovery conference (the "Initial Appearance"), these rules will bring common practice one question shy of realizing this reform: "Does the defense wish to submit evidence to the grand jury?" With this question on the "Initial Appearance" form, the lawyers can then ask the judge for a preliminary finding whether the evidence is exculpatory, such that it should be submitted to the grand jury. The manner of presentation need not be discussed, as that evidence need only be submitted as the State sees fit, with or without explanation.

In the large majority of cases, the exculpatory evidence will be testimonial. In that case, the name of the witness and a brief description of the testimony will be all that's necessary to be placed before the grand jury, who will then have the option to investigate by issuing a subpoena for that witness's testimony.

The purpose of our proposed reform is not interference, but empowerment. The grand jury need only be made aware of evidence it could investigate, not that it must investigate. This preserves the secrecy of the proceedings and the State's control over them, while also allowing the institution to once again "prove[] its worth not only in ferreting out crime but also in absolving those enveloped in a cloud of rumors and suspicion."

Mark Sisti

Jared Bedrick

This relatively small tweak asks very little in the way of judicial resources (if anything at all), yet to the public and practitioners alike, it would represent a substantial step toward securing fairness in a practice that loses more of the public's confidence each day.

Mark Sisti has been a private defense attorney since 1988, after leaving his position as the deputy director of the NH Public Defender. He has tried numerous cases to juries and judges on behalf of those accused of crimes ranging from homicide to disorderly conduct in his 35 years of practice. Jared Bedrick is an associate at the Sisti firm, where he devotes his practice to criminal defense.

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