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Motion To Dismiss The Indictment In New Jersey

The Law On A Motion To Dismiss The Indictment

In seeking an indictment, the prosecutor has an obligation to present a prima facie case that the accused has committed a crime. State v. Hogan, 144 N.J. 216, 236 (1996). “The grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.” State v. Hogan, 144 N.J. at 227 (citing State v. New Jersey Trade Waste Association, 96 N.J. 8, 27 (1984)). “The absence of any evidence to support the charges would render the indictment ‘palpably defective’ and subject to dismissal.” State v. Morrison, 188 N.J. 2, 12 (2006) (citing State v. Hogan, 144 N.J. at 228-229 (1996)).

“The grand jury is an autonomous body charged not only to indict the apparently guilty but also to protect the apparently innocent.” State v. Butterfoss, 234 N.J. Super. 607, 610 (Law Div. 1988). While a prosecutor may assist a grand jury through the examination of witnesses and presentment of evidence, he may not “express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the grand jury in its findings-rather, the grand jury must act independently of any outside source.” State v. Hart, 139 N.J. Super. 565, 567-568 (App. Div. 1976). The indictment must be dismissed where the conduct of the prosecutor in obtaining the indictment impinges on the independence of the grand jury by improperly influencing the grand jury in its determination. Id. at 569. Stated another way, an indictment should be dismissed where a prosecutor’s questioning is of such a nature and quality as to “clearly infringe” upon the grand jury’s decision-making function. State v. Eckel, 429 N.J. Super. 582, 587 (Law Div. 2012)

Applying The Law To The Case

In a motion to dismiss, the defense attorney will have to apply the above case law to the specific facts and circumstances that were present in the grand jury. Some or all of the law which is cited above may or may not apply. Obviously a motion to dismiss is a highly specific, fact sensitive motion which should only be filed after a full consideration of all of the issues.

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