                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                     State v. Jerome Shaw, Jr. (A-59-18) (081652)

Argued November 18, 2019 -- Decided March 4, 2020

RABNER, C.J., writing for the Court.

        In this appeal, the Court considers whether there should be any limits on the
number of times a prosecutor can submit a case to a grand jury to seek an indictment after
a prior grand jury declined to indict.

       At about 1:00 a.m. on October 21, 2012, a sergeant with the Upper Saddle River
Police Department came upon a pickup truck blocking a road and facing a house. The
sergeant noticed a rifle case in the back seat and called for backup. Soon after, Officer
Edward Riedel and another officer arrived. Riedel noted that the driver, Jerome Shaw,
Sr. (Shaw Sr.), and his son and passenger, defendant Jerome Shaw, Jr., were dressed in
black clothing and shoes, and each had gloves, a black mask, and black goggles at his
feet. Both the driver and passenger consented to a search of the rifle case. Inside it,
Riedel found a large mallet, five crowbars, two sets of pliers, zip ties, a pipe wrench, and
knee pads. Many of the tools were new and still had price tags attached. Riedel spoke
separately to Shaw Sr. and defendant. Each said they were involved in construction work
but relayed a different story. The police arrested both men. Defendant had a flashlight in
his pocket along with a list of addresses: four homes in Upper Saddle River and two in
Mendham. Defendant and his father resided in New York.

       In February 2013, the State presented the case to a grand jury. Riedel, the sole
witness, recounted much of the above information. The grand jury declined to authorize
the proposed charges. The State resubmitted the case to a second grand jury in March.
Once again, Riedel was the only witness, and he presented similar testimony with some
additional facts. This time, the grand jury voted to indict. The trial court, however,
dismissed the true bill as a violation of the “multiple presentation rule.”

       In April 2013, the prosecution presented the case a third time to another grand
jury. Riedel presented largely the same testimony. In addition, the prosecution called an
expert in burglary investigations who explained the significance of certain items found at
the scene, including that experienced burglars often purchase new tools before
committing a burglary because paint chips can yield a possible forensic match. The
grand jury returned a ten-count indictment charging Shaw Sr. and defendant.
                                             1
        Defendant argued that the prosecution presented essentially the same evidence
before the third grand jury and that the indictment should therefore be dismissed. The
trial court found that the State had offered new and different expert testimony and did not
violate the “multiple presentation rule.”

       The Appellate Division affirmed. 455 N.J. Super. 471, 492 (App. Div. 2018). It
expressed confidence that the Court “would place some limits on successive
resubmissions.” Id. at 488. But the appellate court found that resubmission in this case
did not deprive defendant “of fundamental fairness.” Id. at 476, 490.

        The Court granted defendant’s petition for certification limited to a single issue:
whether defendant’s indictment should have been dismissed because the State presented
its case to three grand juries. 236 N.J. 632 (2019).

HELD: Invoking its supervisory authority, the Court holds that if grand juries decline to
indict on two prior occasions, the State must obtain advance approval from the
Assignment Judge before it can submit the same case to a third grand jury. To decide
whether to permit a third presentation, Assignment Judges should consider whether the
State has new or additional evidence to present; the strength of the State’s evidence; and
whether there has been any prosecutorial misconduct in the prior presentations. Based on
the circumstances of this case, which did not violate defendant’s right to a fundamentally
fair grand jury presentation, the Court affirms the judgment of the Appellate Division and
declines to dismiss defendant’s indictment.

1. The grand jury’s role has evolved over the centuries to serve dual functions: to decide
if there is probable cause to believe that a crime has been committed and to protect
citizens against unfounded criminal prosecutions. Federal prosecutors seek indictments
from the grand jury for serious offenses, consistent with the Fifth Amendment. The Fifth
Amendment’s Grand Jury Clause, however, does not apply to the states, and a majority of
states no longer require grand jury indictments. Only eighteen states and the District of
Columbia still require a grand jury indictment for serious offenses. (pp. 10-13)

2. New Jersey has retained the use of the grand jury, which is a judicial, investigative
body that serves a judicial function, not a law enforcement agency or an alter ego of the
prosecutor’s office. State and county prosecutors have the responsibility and authority to
present cases to a grand jury and seek an indictment. Grand juries, in turn, investigate
allegations and decide whether the State has presented sufficient evidence to establish
probable cause that a crime has been committed and that the accused committed it. That
said, grand jury presentations are not full-fledged trials at which the State must prove a
defendant’s guilt beyond a reasonable doubt. (pp. 13-15)

3. Judicial review of the grand jury is generally limited. When a grand jury has acted, an
indictment should be disturbed only on the clearest and plainest grounds, and only when
                                             2
the indictment is manifestly deficient or palpably defective. If, on the other hand, a grand
jury declines to indict, the State has no right of appeal. The Judiciary’s power of review
is rooted in the doctrine of fundamental fairness, which is an integral part of due process.
The doctrine protects citizens against unjust and arbitrary governmental action, and
specifically against governmental procedures that tend to operate arbitrarily. It is applied
sparingly, only when the interests involved are especially compelling. (pp. 15-17)

4. The common law imposed no restrictions on a prosecutor’s discretion to resubmit a
case to the same or another grand jury. The federal government and most states still
follow that approach. More than a dozen states restrict the prosecutor’s ability to
resubmit cases to grand juries, and most of those states require court approval to
resubmit. Existing case law in New Jersey neither bars prosecutors from resubmitting a
case to a grand jury nor imposes limits on multiple presentations. (pp. 18-20)

5. The Court discusses the important concerns that have led it to exercise its supervisory
authority over the grand jury process, which it has used sparingly and only when
necessary to ensure the fairness and integrity of grand jury proceedings. Some concerns
weigh in favor of imposing limits to enhance the grand jury’s role as a buffer between the
State and potential defendants; others weigh against imposing extensive limits. In light
of those considerations, the Court holds that if grand juries decline to indict on two
occasions, the State must obtain advance approval from the Assignment Judge before
prosecutors can submit the same case to a third grand jury. The Court acknowledges and
accepts the Attorney General’s representation that the office is not aware of a case
presented to a third grand jury, after multiple no bills, without additional evidence. To
determine whether prosecutors can make a third presentation to a grand jury, Assignment
Judges should consider the following factors: (1) whether there is new or additional
evidence to present -- which would counter the notion that re-presentation is an arbitrary
act; (2) the court’s assessment of the strength of the evidence in light of the probable
cause standard -- to help guard against an unjust proceeding; and (3) the conduct of the
prosecution -- specifically, whether there is evidence of misconduct in the prior
presentations. (pp. 20-22)

6. The Court agrees with the Appellate Division that, here, defendant’s indictment
should not be dismissed. Only one grand jury declined to indict; the above framework
therefore does not apply to this case. In any event, the prosecution presented materially
new evidence to the third grand jury. In addition, the evidence viewed as a whole was
quite strong and plainly established probable cause. Finally, the Court does not find that
the prosecution engaged in misconduct in the prior grand jury presentations. (p. 23)

       The judgment of the Appellate Division is AFFIRMED.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
                                             3
       SUPREME COURT OF NEW JERSEY
             A-59 September Term 2018
                       081652


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

           Jerome Shaw, Jr., Jerome Shaw,
             Jerone Shaw, Jr., and Rome,

                Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division.

     Argued                        Decided
 November 18, 2019               March 4, 2020


Douglas R. Helman, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Douglas R.
Helman, of counsel and on the briefs, and Anderson
D. Karkov, Designated Counsel, on the briefs).

Nicole Paton, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Nicole Paton, of counsel and on
the briefs and William P. Miller, Special Deputy
Attorney General/Acting Assistant Prosecutor, on the
briefs).

CJ Griffin argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(American Civil Liberties Union of New Jersey

                          1
            Foundation and Pashman Stein, Walder, Hayden,
            attorneys; Jeanne LoCicero and Alexander Shalom, of
            counsel and on the brief, and CJ Griffin, on the brief).

            Regina M. Oberholzer, Deputy Attorney General,
            argued the cause for amicus curiae Attorney General
            of New Jersey (Gurbir S. Grewal, Attorney General,
            attorney; Regina M. Oberholzer, of counsel and on the
            brief).


        CHIEF JUSTICE RABNER delivered the opinion of the Court.


      In this appeal, we consider whether there should be any limits on the

number of times a prosecutor can submit a case to a grand jury to seek an

indictment after a prior grand jury declined to indict.

      Grand juries decide whether there is sufficient probable cause to return

an indictment. At the same time, they serve as a check on the power of the

State to bring criminal charges. Although the grand jury is an arm of the court,

it is an independent body, so courts are reluctant to intercede directly in the

indictment process. This Court has acted only when necessary to ensure the

fairness and integrity of grand jury proceedings.

      Repeated grand jury presentations about the same conduct present one of

those rare circumstances, because the practice increases the risk that an

innocent person may be charged with a crime. We therefore invoke the

Court’s supervisory authority and hold as follows: if grand juries decline to


                                         2
indict on two prior occasions, the State must obtain advance approval from the

Assignment Judge before it can submit the same case to a third grand jury. To

decide whether to permit a third presentation, Assignment Judges should

consider whether the State has new or additional evidence to present; the

strength of the State’s evidence; and whether there has been any prosecutorial

misconduct in the prior presentations.

      Based on the circumstances of this case, which did not violate

defendant’s right to a fundamentally fair grand jury presentation, we affirm the

judgment of the Appellate Division and decline to dismiss defendant’s

indictment.

                                         I.

                                         A.

      At about 1:00 a.m. on October 21, 2012, a sergeant with the Upper

Saddle River Police Department, who was on routine patrol, came upon a Ford

pickup truck blocking West Saddle River Road. He braked hard to avoid

hitting the truck and then told the driver to park in the driveway of the home

the truck was facing. Two men were in the truck: the driver, Jerome Shaw,

Sr. (Shaw Sr.); and his son and passenger, defendant Jerome Shaw, Jr.

      The sergeant noticed a rifle case in the back seat and called for backup.

Soon after, Officer Edward Riedel and another officer arrived. Riedel noted

                                         3
that both men were dressed from head to toe in black clothing and shoes. Each

also had a pair of gloves, a black mask, and black goggles at his feet.

      Both the driver and passenger consented to a search of the rifle case.

Inside it, Riedel found a large mallet, five crowbars, two sets of pliers

including one for cutting, different types of zip ties, a pipe wrench, and knee

pads. Many of the tools were new and still had price tags attached.

      Riedel spoke separately to Shaw Sr. and defendant. Each said they were

involved in construction work but relayed a different story. Defendant claimed

he and his father were working on a residence in New Jersey, but when pressed

for details he was unable to identify the address, town, or type of construction

work. Shaw Sr. said he was doing commercial construction work at a strip

mall somewhere in the area of Route 17.

      The police arrested both men. Riedel found a flashlight and a rock about

the size of a tennis ball in Shaw Sr.’s pocket. Defendant also had a flashlight

in his pocket along with a handwritten list of addresses on a piece of paper:

four homes in Upper Saddle River and two in Mendham. Defendant and his

father resided in New York.

                                        B.

      On February 28, 2013, the State presented the case to a grand jury.

Riedel, the sole witness, recounted much of the above information. The grand

                                        4
jury declined to authorize the proposed charges -- conspiracy to commit

burglary, multiple counts of attempted burglary, and multiple counts of

possession of a weapon for an unlawful purpose -- and returned a no bill.1

         The State resubmitted the case to a second grand jury on March 20,

2013. Once again, Riedel was the only witness, and he presented similar

testimony with some additional facts. This time, the grand jury voted to indict.

The trial court, however, dismissed the true bill on its own motion. The judge

later explained that prosecutors cannot “go to the grand jury more than once on

the same facts” without violating what she called “the multiple presentation

rule.”

         On April 16, 2013, the prosecution presented the case a third time to

another grand jury. Riedel presented largely the same testimony. In addition,

the prosecution called Captain Timothy Condon as a witness. Condon testified

as an expert in burglary investigations and explained the significance of certain

items found at the scene. For example, he explained that paint chips can

remain on a crowbar used in a break-in. Condon noted that experienced

burglars therefore often purchase new tools before committing a burglary and

then discard them to avoid a possible forensic match afterward; construction


1
  When a grand jury authorizes an indictment, it returns a “true bill.” When it
declines to indict, it returns a “no bill.” Wayne R. LaFave et al., 3 Criminal
Procedure § 8.2(a) (4th ed. updated 2019).
                                           5
tools, by contrast, are often well-worn from regular use. Condon also testified

that zip ties can be used to restrain people in a home during a break-in.

        The grand jury returned a ten-count indictment charging Shaw Sr. and

defendant with one count of third-degree conspiracy to commit burglary,

N.J.S.A. 2C:5-2 and 2C:18-2; six counts of third-degree attempted burglary --

one for each home listed on the handwritten note -- N.J.S.A. 2C:5-1 and

2C:18-2(a)(1); and three counts of third-degree possession of a weapon for an

unlawful purpose -- a sledgehammer, mallet, and prybar, respectively --

N.J.S.A. 2C:39-4(d).

                                         C.

        Defendant argued that the prosecution presented essentially the same

evidence before the third grand jury and that the indictment should therefore

be dismissed. The trial court found that Captain Condon offered new and

different expert testimony and did not violate “the multiple presentation rule.”

The judge accordingly denied the motion to dismiss.

        Defendant later pled guilty to conspiracy to commit burglary and a

disorderly persons offense for possession of burglary tools.2 The court

sentenced defendant to five years in prison, with two years to be served



2
    Shaw Sr. pled guilty to the same charges and is not involved in this appeal.

                                          6
without parole, to run concurrently with a North Carolina sentence defendant

was already serving. 3

      The Appellate Division affirmed defendant’s conviction. State v. Shaw,

455 N.J. Super. 471, 492 (App. Div. 2018). In its thoughtful opinion, the

Appellate Division observed that “no New Jersey statute or common law

precedent . . . categorically bars a prosecutor from choosing to resubmit a case

to a new grand jury after one has previously voted a no bill, or requires the

State to present new evidence as a condition of resubmission.” Id. at 484. The

court also surveyed practices in other jurisdictions. Id. at 485-87.

      The Appellate Division considered reasons for and against imposing

limits on a prosecutor’s ability to resubmit a case. Id. at 487-88. Ultimately,

the Appellate Division deferred to this Court: “[W]e are confident our Court

would place some limits on successive resubmissions, in order to respect the

grand jury’s screening function to shield the innocent; control the abusive

exercise of prosecutorial discretion; and assure defendants fundamental

fairness.” Id. at 488.




3
  At the time of the plea, the trial court said it intended to impose a twenty-
month, rather than a twenty-four month, parole bar as part of the sentence. In
addition, the judgment of conviction makes no mention of any period of parole
ineligibility. We do not disturb the Appellate Division’s decision to remand
for reconsideration of the minimum period of parole ineligibility.
                                          7
      In this case, the Appellate Division noted that two out of three grand

juries returned an indictment and “the State presented new and material

evidence to” the third grand jury. Id. at 489. The court found no abuse of

prosecutorial discretion and concluded defendant did not show that

resubmission “deprived him of fundamental fairness.” Id. at 476, 490.

      We granted defendant’s petition for certification limited to a single

issue: whether defendant’s indictment should have been dismissed because the

State presented its case to three grand juries. 236 N.J. 632 (2019). We also

granted leave to the Attorney General and the American Civil Liberties Union

of New Jersey (ACLU) to participate as friends of the Court.

                                        II.

      Defendant argues that his motion to dismiss the indictment should have

been granted. He contends that, after the first grand jury failed to return a true

bill, later indictments for the same offenses, without new evidence, violated

his right to fundamental fairness. Defendant urges this Court to use its

supervisory powers to limit the number of times a prosecutor may resubmit a

case to a grand jury. He submits that judges should look to the factors set

forth in State v. Abbati, 99 N.J. 418, 435 (1985), which we discuss later, to

decide whether the State may re-present a case after a no bill. Applying those




                                        8
factors, defendant contends that the third grand jury presentation was

fundamentally unfair.

      The ACLU likewise argues that there should be a limit on the number of

times a matter may be resubmitted to a grand jury. To preserve the grand

jury’s role to safeguard citizens against unfounded prosecutions and also allow

prosecutors “a second chance to obtain an indictment in difficult cases,” the

ACLU proposes the following standard: if two grand juries return a no bill,

prosecutors should not be permitted to resubmit the matter to a third grand jury

unless there is new evidence that was previously unavailable to the prosecutor

and the Assignment Judge approves the third presentation.

      The State asserts that resubmitting this matter to multiple grand juries

did not violate defendant’s right to fundamental fairness. The State maintains

there was overwhelming evidence of probable cause, despite the initial no bill,

and no abuse of discretion in re-presenting the case. In addition, the State

contends there is no need for the Court to set a standard for resubmissions. In

any event, the State notes that the factors outlined in Abbati should not apply

prior to trial and would not warrant relief here regardless.

      The Attorney General agrees that the State properly exercised its

discretion to present this case to a third grand jury after the trial judge

erroneously dismissed the second grand jury’s indictment. Like the State, the

                                         9
Attorney General contends there is no need for additional oversight of the

grand jury process. In the alternative, the Attorney General proposes a non -

exclusive list of ten factors for courts to consider if the prosecution presents a

matter to more than two grand juries without any new evidence.

                                        III.

                                        A.

      The grand jury’s role has evolved over the centuries to serve “dual

function[s]”: to decide “if there is probable cause to believe that a crime has

been committed and [to protect] citizens against unfounded criminal

prosecutions.” United States v. Sells Eng’g, Inc., 463 U.S. 418, 423 (1983)

(quoting Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972)). In that way, the

grand jury today operates as both a sword and shield. See United States v.

Navarro-Vargas, 408 F.3d 1184, 1190-91 (9th Cir. 2005) (en banc).

      The origin of the modern grand jury can be traced to the twelfth century

in England. Sara Sun Beale et al., Grand Jury Law & Practice § 1:1 at 1-2 (2d

ed.). Twelve out of every 104 men in a township or village would be called on

to answer whether any local person had been “accused of or reputed to have

committed certain crimes.” Beale, § 1:2 at 1-5 to -6 (quoting Roger D. Groot,

The Presentment Jury Before 1215, 26 Am. J. Legal Hist. 3 (1982)). Early

grand juries heard no evidence and did not decide whether an accusation was

                                        10
true or false. Id. at 1-6. They instead reported on crimes and suspicions they

either knew or had heard about, id. at 1-4, and “[a]nyone accused was required

to undergo trial by ordeal,” id. at 1-5. The earliest grand juries, then, operated

“not . . . as a shield to protect the accused, but as a sword to be wielded on

behalf of the Crown.” Navarro-Vargas, 408 F.3d at 1190.

      By the late fourteenth century, the “accusing” jury had grown into a

“grande inquest,” in which the sheriff summoned twenty-four people of

substantial rank to hear accusations by third parties as well as testimony.

Beale, § 1:2 at 1-8 to -9. If the grand jury believed the charges, it could

endorse an accusation as a true bill. Ibid.

      In 1642, Lord Coke interpreted language in the Magna Carta to

guarantee the right to a grand jury indictment. Id. at 1-9. And decades later,

the independence of grand juries began to take hold in English law. See ibid.

In 1681, for example, despite considerable political pressure, grand juries

blocked King Charles II from trying the First Earl of Shaftesbury and one of

his followers, Stephen Colledge, for treason. Id. at 1-9 to -10; Andrew D.

Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80

Cornell L. Rev. 260, 281-82 (1995). The King, though, ultimately obtained an

indictment of Colledge from a sympathetic grand jury, and the Earl, fearing the

same fate, fled the country. Leipold, 80 Cornell L. Rev. at 282.

                                        11
      All of the English colonies in North America adopted the grand jury

system to institute criminal charges. Beale, § 1:3 at 1-11. After the

Revolution, the federal government and each new state did likewise. See U.S.

Const. amend. V (“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand

Jury . . . .”); Beale, § 1:4 at 1-15 to -16.

      As in England, grand juries took on “an important and historic” role in

curbing the power of the government. See State v. Fortin, 178 N.J. 540, 638

(2004). In colonial times, grand juries frustrated the enforcement of unpopular

British laws. Beale, § 1:3 at 1-14 to -15. When royal prosecutors sought to

prosecute by information instead, colonists enacted the right to indictment in

local law. Id. at 1-15. Years later, in the Civil War era, grand juries in the

North were slow to indict people for charges related to the abolition of slavery.

Navarro-Vargas, 408 F.3d at 1194; Leipold, 80 Cornell L. Rev. at 286.

      Today, federal prosecutors seek indictments from the grand jury for

serious offenses, consistent with the Fifth Amendment. The Fifth

Amendment’s Grand Jury Clause, however, does not apply to the states.

Branzburg, 408 U.S. at 688 n.25 (“[I]ndictment by grand jury is not part of the

due process of law guaranteed to state criminal defendants by the Fourteenth

Amendment . . . .”).

                                          12
      A majority of states no longer require grand jury indictments and allow

crimes to be prosecuted by information. Wayne R. LaFave et al., 4 Criminal

Procedure § 15.1(g) (4th ed. updated 2019). Typically in such cases, there is a

judicial finding about whether the charges are supported by probable cause.

Fortin, 178 N.J. at 638. Only eighteen states and the District of Columbia still

require a grand jury indictment for serious offenses. LaFave, 4 Criminal

Procedure § 15.1(d).

                                         B.

      New Jersey has retained the use of the grand jury. The grand jury

process at common law “was made a part of the law of this State by virtue of .

. . the Constitution of 1776.” Bd. of Health of Weehawken Twp. v. N.Y. Cent.

R.R. Co., 10 N.J. 294, 303 (1952). The Constitution of 1844 expressly

guaranteed the right to “presentment or indictment of a grand jury” at Article I,

Paragraph 9. Id. at 304. In much the same language, the modern Constitution

of 1947 continued the right to indictment by grand jury:

            No person shall be held to answer for a criminal
            offense, unless on the presentment or indictment of a
            grand jury, except in cases of impeachment, or in cases
            now prosecuted without indictment, or arising in the
            army or navy or in the militia, when in actual service in
            time of war or public danger.

            [N.J. Const. art. I, ¶ 8.]


                                         13
      Today, grand juries operate in all twenty-one counties and at the state

level. They continue to serve a dual purpose: to determine if probable cause

exists and to “stand[] between the defendant and the power of the State” and

protect “defendant[s] from unfounded prosecutions.” Fortin, 178 N.J. at 638;

see also State v. Murphy, 110 N.J. 20, 29 (1988) (noting that grand juries both

“bring[] the guilty to trial” and “protect[] the innocent” (quoting Case Note,

111 U. Pa. L. Rev. 1000, 1003 (1963))). Grand juries, whose members are

drawn from a cross-section of the community, also “represent[] a democratic

safeguard to our judicial system.” Fortin, 178 N.J. at 638.

      In New Jersey, the grand jury “is an arm of the court.” In re Grand Jury

Appearance Request by Loigman, 183 N.J. 133, 141 (2005). It “is a judicial,

investigative body” that serves “a judicial function,” “not a law enforcement

agency or an alter ego of the prosecutor’s office.” Ibid.

      State and county prosecutors have the responsibility and authority to

present cases to a grand jury and seek an indictment. N.J.S.A. 2B:22-6

(empowering the Attorney General and designees); N.J.S.A. 2A:158-5 (vesting

county prosecutors with the same power). Grand juries, in turn, investigate

allegations and decide whether the State has presented sufficient evidence to

establish probable cause that a crime has been committed and that the accused

committed it. State v. Hogan, 144 N.J. 216, 227 (1996).

                                       14
      That said, grand jury presentations are not full-fledged trials at which the

State must prove a defendant’s guilt beyond a reasonable doubt. Prosecutors

typically make abbreviated presentations to the grand jury that are designed to

satisfy the lower standard of probable cause. See Beale, § 8:6 at 8-56 to -57.

Prosecutors may also present hearsay testimony before the grand jury. State v.

McCrary, 97 N.J. 132, 146 (1984).

                                       C.

      Judicial involvement with and review of the grand jury is generally

limited. Under federal law, the grand jury’s “relationship with the Judicial

Branch has traditionally been . . . at arm’s length.” United States v. Williams,

504 U.S. 36, 47 (1992). Courts do not preside over or control its day-to-day

functioning. See ibid. The United States Supreme Court has also declined to

extend the exclusionary rule to grand jury proceedings, United States v.

Calandra, 414 U.S. 338, 349-52 (1974), or require prosecutors to present

exculpatory evidence, Williams, 504 U.S. at 55.

      Although this Court has supervisory authority over the grand jury to

remedy unjust practices, Hogan, 144 N.J. at 231, we have “recognized the

grand jury’s independence” and have been “reluctan[t] to intervene in the

indictment process,” id. at 228. When a grand jury has acted, “[a]n indictment

should be disturbed only on the ‘clearest and plainest ground[s],’” State v.

                                       15
Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade Waste Ass’n, 96

N.J. 8, 18-19 (1984)), and “only when the indictment is manifestly deficient or

palpably defective,” Hogan, 144 N.J. at 229. If, on the other hand, a grand

jury declines to indict, the State has no right of appeal. See Beale, § 8:6 at 8-

57. Even an “erroneous refusal” to indict cannot be reviewed by the courts.

See ibid.

      The Judiciary’s power of review is rooted in the doctrine of fundamental

fairness, which is “an integral part of due process.” State v. Saavedra, 222

N.J. 39, 67 (2015) (quoting State v. Miller, 216 N.J. 40, 71 (2013)). The

doctrine “protect[s] citizens . . . against unjust and arbitrary governmental

action, and specifically against governmental procedures that tend to operate

arbitrarily.” Doe v. Poritz, 142 N.J. 1, 108 (1995) (emphasis omitted). It is

applied “sparingly,” only when “the interests involved are especially

compelling.” Ibid.

      The doctrine has been invoked to ensure that grand jurors have been

present or informed of the evidence at each session in order to vote to indict,

State v. Del Fino, 100 N.J. 154, 164-65 (1985), and to require prosecutors to

bring to the court’s attention “evidence of partiality or bias” held by grand

jurors, Murphy, 110 N.J. at 33. Unlike federal law, the Court has also invoked

its supervisory authority to impose “a limited duty on prosecutors” to present

                                        16
evidence to the grand jury “that both directly negates the guilt of the accused

and is clearly exculpatory.” Hogan, 144 N.J. at 237.

      Principles of fundamental fairness also underlie a court’s inherent

authority to dismiss an indictment with prejudice after one or more hung

juries. Abbati, 99 N.J. at 427. To guide trial judges as they make that

decision, the Court outlined five factors to consider:

            (1) the number of prior mistrials and the outcome of the
            juries’ deliberations, so far as is known; (2) the
            character of prior trials in terms of length, complexity,
            and similarity of evidence presented; (3) the likelihood
            of any substantial difference in a subsequent trial, if
            allowed; (4) the trial court’s own evaluation of the
            relative strength of each party’s case; and (5) the
            professional conduct and diligence of respective
            counsel, particularly of the prosecuting attorney.

            [Id. at 435.]

Judges must also consider the prosecutor’s reasons to retry the case and the

impact of another trial upon the defendant. Ibid.

      Prosecutorial vindictiveness in the indictment process may also run afoul

of due process and warrant court intervention. See Blackledge v. Perry, 417

U.S. 21, 28 (1974); State v. Gomez, 341 N.J. Super. 560, 571-72 (App. Div.

2001).




                                       17
                                        IV.

      With those concerns in mind, we consider the limits on a prosecutor’s

authority to resubmit cases to a grand jury.

                                        A.

      The common law imposed no restrictions on a prosecutor’s discretion to

resubmit a case to the same or another grand jury. See United States v.

Thompson, 251 U.S. 407, 413-16 (1920); Commonwealth v. McCravy, 723

N.E.2d 517, 521 (Mass. 2000) (“[A]t common law, a prosecutor retained the

discretion to resubmit a charge to a grand jury after having been dismissed by

a previous grand jury.”).

      The federal government and most states still follow that approach. See

Thompson, 251 U.S. at 414-15 (declining to require court approval before a

prosecutor can resubmit charges to a grand jury); LaFave, 4 Criminal

Procedure § 15.2(h) (“The longstanding federal rule is that resubmissions are

permissible, without court approval, even when the prosecutor presents no

additional evidence to the second grand jury.”); Beale, § 8:6 at 8-56 (“[M]ost

jurisdictions recognize that the prosecutor may resubmit charges to either the

same grand jury or to a successor.”).

      More than a dozen states restrict the prosecutor’s ability to resubmit

cases to grand juries. See Beale, § 8:6 at 8-60 n.10 (citing Alaska Stat.

                                        18
§ 12.40.080; Ark. Code Ann. § 16-85-513(c); Colo. Rev. Stat. § 16-5-

204(4)(e); Ga. Code Ann. § 17-7-53; Idaho Code § 19-1403; Ind. Code § 35-

34-2-12(d); Iowa R. Crim. P. 2.3(4)(i); Minn. R. Crim. P. 18.06; Neb. Rev.

Stat. § 29-1416(2); Nev. Rev. Stat. § 172.255(4); N.M. Stat. Ann. § 31-6-11.1;

N.Y. Crim. Proc. Law § 190.75(3); Okla. Stat. tit. 22, § 383; Or. Rev. Stat.

§ 132.430(2); S.D. Codified Laws § 23A-5-18).

      Most of those states require court approval to resubmit. Id. at 8-62.

Some allow resubmission only when the prosecution can present additional

evidence. Id. at 8-62 to -63. Georgia imposes limits only after two no bills.

Ga. Code Ann. § 17-7-53. New York bars resubmissions after a second no

bill. N.Y. Crim. Proc. Law § 190.75(3). The Supreme Judicial Court of

Massachusetts declined to limit the government’s authority to resubmit to a

second grand jury but noted that it “would bear consideration” “[w]hether

submission of the same evidence to multiple grand juries would be inconsistent

with” the grand jury’s purpose. McCravy, 723 N.E.2d at 522.

      Outside of the grand jury context, other states have addressed due

process concerns when prosecutors repeatedly seek to file similar charges

against the same defendant. See, e.g., Commonwealth v. Thorpe, 701 A.2d

488, 490-91 (Pa. 1997) (noting due process considerations when the

Commonwealth arrested a defendant a fourth time after failing to present a

                                       19
prima facia case on three occasions); State v. Brickey, 714 P.2d 644, 645, 647

(Utah 1986) (noting that the due process clause of the state constitution and

fundamental fairness bar prosecutors from “refiling . . . criminal charges

absent a showing of new or additional evidence or other good cause”).

      Existing case law in our state neither bars prosecutors from resubmitting

a case to a grand jury nor imposes limits on multiple presentations. Shaw, 455

N.J. Super. at 484; see also Rosetty v. Twp. Comm. of Hamilton Twp., 82 N.J.

Super. 340, 349 (Law Div. 1964) (commenting in dicta, in a civil case, that a

grand jury could review and reconsider charges after a no bill within the

statute of limitations), aff’d o.b., 96 N.J. Super. 66 (App. Div. 1967).

                                        B.

      We begin from a different starting point than most other jurisdictions.

Not only is the grand jury an arm of the court in New Jersey, but the Judiciary

also exercises supervisory authority over grand juries under the doctrine of

fundamental fairness. Our sparing use of that authority in the grand jury

context reflects important concerns.

      Limits on re-presentations should enhance the grand jury’s historic and

independent role as a buffer between the State and potential defendants. See

Fortin, 178 N.J. at 638. That accords with the grand jury serving as a

“democratic safeguard to our judicial system.” Ibid.

                                        20
      When a grand jury declines to indict, repeated and nearly identical

presentations to another grand jury can undermine the grand jury’s screening

function -- to shield the innocent from prosecution. The practice can also be

seen as forum shopping for a desired outcome, which can increase the risk that

an innocent person will be charged. See Shaw, 455 N.J. Super. at 487-88. In

certain circumstances, such an approach can amount to an abuse of discretion

and raise due process concerns. It can also deprive a defendant of a

fundamentally fair grand jury proceeding.

      Other considerations weigh against imposing extensive limits. As noted

earlier, grand jury presentations are distinct from trials. To establish probable

cause, prosecutors understandably make abbreviated presentations. Beale,

§ 8:6 at 8-57. Beyond that, if a grand jury improperly decides not to indict in

the face of ample evidence, that decision cannot be appealed, but it can be

rectified through a revised presentation. Ibid. Grand juries also have the

power to continue to investigate even after they return a no bill. Thompson,

251 U.S. at 413-14.

      We recognize that due process concerns are more likely to surface only

in limited situations, such as a third or fourth presentation of similar facts in

search of essentially the same indictment. In light of all of the above

considerations, we hold that if grand juries decline to indict on two occasions,

                                        21
the State must obtain advance approval from the Assignment Judge before

prosecutors can submit the same case to a third grand jury.

      We rely on our supervisory authority over the administration of criminal

procedures, under Article VI, Section 2, Paragraph 3 of the State Constitution,

to require that practice. See State v. Henderson, 208 N.J. 208, 278 (2011);

Hogan, 144 N.J. at 231; Murphy, 110 N.J. at 36. We acknowledge and accept

the Attorney General’s representation that the office is not aware of a case

presented to a third grand jury, after multiple no bills, without additional

evidence.

      To determine whether prosecutors can make a third presentation to a

grand jury, Assignment Judges should consider the following factors: (1)

whether there is new or additional evidence to present -- which would counter

the notion that re-presentation is an arbitrary act; (2) the court’s assessment of

the strength of the evidence in light of the probable cause standard -- to help

guard against an unjust proceeding; and (3) the conduct of the prosecution --

specifically, whether there is evidence of misconduct in the prior

presentations. Those core issues directly address concerns about fundamental

fairness in this context and appear to be a better fit than the factors set forth in

Abbati. See Doe, 142 N.J. at 108-09; Abbati, 99 N.J. at 435.




                                         22
                                       V.

      We agree with the Appellate Division that defendant’s indictment should

not be dismissed. Only one grand jury declined to indict; the second grand

jury returned an indictment that the trial court dismissed on unfounded legal

grounds. The above framework therefore does not apply to this case.

      In any event, the prosecution presented materially new evidence to the

third grand jury. An expert in burglary investigations testified about the

significance of the items defendant and his father possessed; among other

things, the expert explained how certain items were consistent with a burglary

scheme. In addition, the evidence viewed as a whole was quite strong and

plainly established probable cause. Finally, we do not find that the

prosecution engaged in misconduct in the prior grand jury presentations. See

Shaw, 455 N.J. Super. at 491.

                                      VI.

      For the reasons outlined above, we affirm the judgment of the Appellate

Division.



    JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.




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