Author Clark & Noonan, LLC
Posted August 17, 2020
Category Sex Crimes Defense
What to Do When You Are a Suspect in a Sexual Assault or Sexual Contact Investigation in New Jersey – Pre-Charge and Pre-Arrest (Continued)
I haven’t been charged – am I in the clear? Direct presentment.
We now confront the situation where you have refused to talk to the police and they decided not to charge or arrest you. You may think you are in the clear, but that is not always the case. For various reasons, the police have chosen not to sign a criminal complaint and lock you up. The allegation may be old, the DNA evidence may have come back negative, or the alleged victim may have recanted (taken their story back). Just because the police did not formally charge you does not mean you are going to avoid indictment. Often times, the police will choose not to charge a defendant but, instead, conduct an investigation and send it directly to the grand jury.
This is called a direct presentment.
A direct presentment means the assistant county prosecutor is going to present the police investigation to the grand jury and let them decide if they want charges against you filed. A grand jury consists of 23 citizens of the New Jersey County where the alleged crime occurred. They will decide if there is enough evidence to indict you. If a majority believes there is some evidence of a crime they can originate charges for a sexual offense against you. If a majority does not believe there is sufficient evidence of a sexual assault or sexual contact, then they can “no bill” or dismiss the case.
Grand Jury Process in a Criminal Case
At this point, it may be important to say a few words about the grand jury process because it is often misunderstood by people who don’t work in the criminal justice system.
The grand jury does not determine whether or not you are guilty of these allegations. They are simply a step in the process to determine whether or not there is sufficient evidence to proceed further with a case against you. In New Jersey, you have no right to testify in front of a grand jury and no right to even be informed that a grand jury is hearing a case against you.
Many people believe that the prosecutor can manipulate a grand jury to indict anyone they want to indict. Although there may be a kernel of truth in that statement, the prosecutor does not necessarily want to get stuck with a case that will be hard for them to prove at trial. The standard of proof at grand jury is simply “some evidence” that a crime occurred. To convict you later at trial, the prosecutor is going to have to prove that you are guilty “beyond a reasonable doubt”. The “beyond a reasonable doubt” standard is the highest standard of proof in our criminal justice system and not always easy to meet in a sexual assault case where the only evidence is a statement from the alleged victim.
Should I Testify Before the Grand Jury?
One of the more controversial questions for criminal defense attorneys is whether or not you should testify before the grand jury if you are given the opportunity. I say “if you are given the opportunity” because you have no right to testify and can only give testimony if “invited” by the prosecutor.
I know attorneys who believe it is mal-practice to allow their clients to testify before the grand jury. After all, your attorney cannot be present when you testify and you have to waive your right against self-incrimination before you enter the grand jury room. The prosecutor will have free reign to ask you questions, attack your credibility, and confront you with the evidence you may not have even been aware existed.
If you have already avoided speaking to the police about a sexual assault or sexual contact allegation why on earth would you now go in and give a statement that could later be used against you? Logic and reason would seem to dictate that you never go into the grand jury, right? The answer is a little more complicated than simply saying “always refuse to testify at a grand jury.” The correct answer is “it depends”.
Our firm has represented numerous clients accused of aggravated sexual assault, sexual assault, or sexual contact in New Jersey where we have solicited, on their behalf, an invitation to testify at the grand jury proceeding. I can think of at least 6 or 7 cases off the top of my head where clients were given the opportunity to testify and then the case was “no billed” by the grand jury as a direct result of their testimony.
In one case, I had a prosecutor tell me that my client would have definitely been indicted had he not testified so credibly in front of the grand jury.
The benefit to a “no bill” is that your case is dismissed. You do not have to incur any further legal expense or sweat out a jury trial where you may be facing anywhere from 18 months to life in prison depending on the charge. Testifying before a grand jury, however, is rarely going to be recommended by an attorney. In the rare cases I have mentioned, the prosecutor’s cases were so problematic that I was well aware my client’s testimony was going to be the push needed to get rid of the case. The reality is that your attorney will be in the position to let you know about this strategic option and whether it would make sense for you.
Obviously, a reliable criminal defense attorney is not going to let you testify before the grand jury where the prosecutor is hell-bent on an indictment and ready to grill you under oath. In the right case, testifying may be an option but the good news is you don’t have to decide that on your own nor should you.
Contact a Sexual Assault Defense Attorney in New Jersey
If you are accused or charged with sexual assault or sexual contact in New Jersey, we can help. Do not navigate this unfair process alone. Call Clark Clark & Noonan, LLC immediately at (732) 303-7857.