exculpatory. State v. Hogan, 144 N.J. 216, 236-39
(1996). To negate defendant’s guilt, the evidence must
“squarely refute an element of the crime.” In determining
whether the evidence is clearly exculpatory, the quality
and reliability of the evidence must be examined in the
context of the nature and source of the evidence, and the
strength of the State’s case. This limited prosecutorial
duty to disclose exculpatory evidence to the grand jury is
only to be applied in exceptional cases. Ibid. Prosecutors
similarly have a limited duty to instruct the grand jury on
possible exculpatory defenses when the facts known to
the prosecutor clearly indicate the appropriateness of
such an instruction. State v. Hogan, 336 N.J. Super. 319
(App. Div. 2001).
A prosecutor may not use the grand jury solely to
prepare and preserve the testimony of a witness for the
trial of a pending indictment. State v. Johnson, 287 N.J.
Super. 247, 259-60 (App. Div.), certif. denied, 144 N.J.
587 (1995). However, such improper use of the grand
jury will not necessarily result in a reversal. In Johnson, the
court declined to reverse defendants’ convictions on that
basis because the State had not obtained an undue
advantage in the presentation of its case, because the
witness’ subsequent trial testimony suggested that she
was simply reluctant and not intimidated about
testifying before the grand jury, and because the use of
the witness’ grand jury testimony was not capable of
denying defendants a fair trial. Id. at 260-61.
A prosecutor may screen questions that the grand
jurors wish to ask of witnesses so long as the prosecutor
does not infringe upon the independence of the grand
jury. State v. White, 326 N.J. Super. 304, 305 (App.
Div.), certif. denied, 163 N.J. 397 (2000). The New
Jersey Court rules do not provide for a specific method of
witness examination before the grand jury, and allowing
the prosecutor to screen the grand jury’s questions helps
to prevent unintentional admission of prejudicial matters
and allows framing of the issues in an intelligent manner.
Id. at 313. The assignment judge’s instructions to the
grand jury can eliminate the potential problem of
prosecutors screening out legitimate questions. Id. at
314.
VIII. SUBPOENA (See also, DISCOVERY,
SUBPEONAS, this Digest and GRAND JURY
SUBPOENA in the Prosecutors’ Grand Jury
Manual)
Where the validity of a grand jury subpoena duces
tecum is challenged, the State merely needs to establish
the existence of a grand jury investigation and the nature
and subject matter of that investigation to overcome the
challenge. These matters need not be established by
affidavit or other formal proofs, but may be satisfied by a
simple representation by counsel to the court that a grand
jury investigation has commenced and an explanation of
the nature of the investigation. In re Grand Jury Subpoena
Duces Tecum, 167 N.J. Super. 471, 472-73 (App. Div.
1979). The State need only show that the requested
documents bear some possible relationship to the grand
jury investigation. Id. at 473.IX. VENUE
R. 3:14-1(k) provides that the county of venue for
purposes of trial of an indictment returned by the State
grand jury shall be designated by the assignment judge
appointed to impanel and supervise the State grand jury,
or grand juries, pursuant to R. 3:6-11(b). See N.J.S.A.
2B:22-7; State v. Zicarelli, 122 N.J. Super. 225 (App.
Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S.
875 (1973); State v. Mullen, 126 N.J. Super. 355 (App.
Div. 1974).X. JUDICIAL MISCONDUCT
In State v. Meneses, 219 N.J. Super. 483, 487-90
(App. Div., certif. denied, 110 N.J. 156 (1988), the court
held that the trial judge’s improper comments at the
outset of the trial, in response to defense counsel’s
opening statement that defendant was not permitted to
be at the grand jury presentation, was harmless error.
The trial judge advised the jury as part of his instructions
at the end of the case to disregard any comments the court
addressed to counsel.