with which they were originally charged, no due process
violation occurs.
B. Challenging the Adequacy of Proofs
In State v. Holsten, 223 N.J. Super. 578, 585-86
(App. Div. 1988), the court held that although
testimony was largely or exclusively incompetent by
virtue of leading questions, testimony of the victim and
of the investigating police officer was sufficient to sustain
charges of possession of a firearm without a permit,
possession of a firearm with the purpose to use it
unlawfully against the person or property of another,
purposely or knowingly causing bodily injury with a
deadly weapon, and recklessly causing bodily injury with
a deadly weapon. The fact that the victim was hit with
a BB pellet gave rise to at least an inference of an unlawful
purpose sufficient to return an indictment.
In State v. Ciba-Geigy Corp., 222 N.J. Super. at 351-
52, the court determined that while dismissal of an
indictment is addressed to the sound discretion of the
trial court, it may only be dismissed on the clearest and
plainest grounds -- when the indictment’s insufficiency
is palpably shown. A presumption of validity attaches to
all grand jury proceedings until proof is submitted which
rebuts this presumption. Moreover, proof of alleged
irregularities in the internal operations of a grand jury
must be based on something more than “information and
belief.”
A grand jury may indict a defendant based largely or
wholly on hearsay testimony, especially when the grand
jury does not require the victims’ presence for a second
proceeding. State v. McBride, 213 N.J. Super. 255, 274
(App. Div. 1986).
An indictment may be based wholly on hearsay
testimony and other evidence not legally competent or
admissible at trial. See State v. Scherzer, 301 N.J. Super.
363, 428 (App. Div.), certif. denied, 151 N.J. 466
(1997); State v. Schmidt, 213 N.J. Super. 576, 583-84
(App. Div.), rev’d o.g., 110 N.J. 258 (1988). The alleged
inadequacy of the proofs presented to the grand jury
cannot be raised for the first time on appeal. R. 3:10-2;
State v. Stern, 197 N.J. Super. 49, 54 (App. Div. 1984).
VI. PRESENTMENTS
As previously stated, R. 3:6-9(a) provides that a
presentment may be made only upon the concurrence of
twelve or more jurors. A grand jury may investigate
conditions affecting the morals, health, sanitation, or
general welfare of a county, as well as of county
institutions, and may return a presentment thereon. In
re Presentment of Bergen County Grand Jury, 193 N.J.
Super. 2, 9 (App. Div. 1984). Not only may a grand jury
refer to public affairs and conditions, but it may censure
a public official where his or her association with the
deprecated public affairs or conditions is intimately and
inescapably a part of them. Criticism of a public official
is permitted only where it is integrally associated with the
main purpose of the report, i.e., to draw critical attention
to some undesirable condition in the affairs of the public.
In re Presentment of the Camden County Grand Jury, 124
N.J. Super. 16, 20 (App. Div. 1973) (citing In re
Presentment by Camden County Grand Jury, 34 N.J. 378
(1961)).The term “public official” as used in R. 3:6-9 means
a specific, identifiable individual and not an
undifferentiated group such as “numerous members” of
a particular police department. Id. at 18-21. If a public
official is censored, the proof must be conclusive that the
condemned activity is inextricably linked to the official’s
non-criminal failure to discharge his or her public duties.
R. 3:6-9(c); In re Presentment of Bergen County Grand Jury,
193 N.J. Super. at 7-8. Where a presentment is returned
concerning public affairs, special precaution must be
taken to protect against censure, embarrassment or
disgrace of public officials unless the evidence of official
impropriety is conclusive and falls short of the
commission of an indictable offense. See R.. 3:6-9(c);
State v. Porro, 152 N.J. Super. 179, 186 (App. Div.
1977).The assignment judge must examine the present-
ment and, if it appears that a crime has been committed,
he or she must refer the presentment back to the grand
jury for consideration of indictment. R. 3:6-9(c);
Investigation into Hamilton Tp. Bd. of Edu., 205 N.J.
Super. 248, 250 (App. Div. 1985). If it appears that the
presentment is improper, the assignment judge must
strike it. R. 3:6-9(c).VII. PROSECUTOR’S CONDUCT (See also,
PROSECUTORS, this Digest and THE ROLE OF
THE PROSECUTOR in the Prosecutors’ Grand
Jury Manual)
While a prosecutor may assist the grand jury, he or
she may not participate in its deliberations, express views
on questions of fact, comment on the weight or
sufficiency of the evidence, or in any way influence or
direct the grand jury in its findings. The grand jury must