act independently of any outside source. Thus, where an
assistant prosecutor informed grand jurors that their
refusal to indict was wrong, the jury’s subsequent
indictment on representment was improper. State v.
Hart, 139 N.J. Super. 565 (App. Div. 1976); see also State
v. Childs, 242 N.J. Super. 121, 129 (App. Div.), certif.
denied, 127 N.J. 321 (1990). However, without
expressing his or her own personal views on questions of
fact, a prosecutor may explain the significance of evidence
before the grand jury to aid its understanding of a
complex or unfamiliar matter. State v. Childs, 242 N.J.
Super. at 129.
In State v. Schamberg, 146 N.J. Super. 559, 562-65
(App. Div.), certif. denied, 75 N.J. 10 (1977), the
prosecutor told a target witness in the presence of the
grand jury that he had reason to believe that he had
perjured himself. The prosecutor then asked the witness
whether he desired to change his testimony. The court
criticized the prosecutor’s conduct but determined that
it did not impermissibly interfere with the independence
of the grand jury. While the prosecutor should not
attempt to influence the grand jury in its findings, he or
she is not expected to limit his or her participation to
innocuous presentation. There is no legal bar to the use
of vigorous and skillful questioning which will elicit and
compel truthful responses from reluctant witnesses. Ibid.
As an officer of the court, the prosecuting attorney
has a responsibility to bring to the attention of the
presiding judge any evidence of partiality or bias that
would affect the impartial deliberations of any of the
grand jurors. R. 3:6-3(a); State v. Murphy, 110 N.J. at 33;
see also State v. Marchitto, 132 N.J. Super. 511, 515-17
(App. Div.) (court has duty to investigate potential juror
bias), certif. denied, 68 N.J. 163 (1975); RPC 3.3
(attorney’s obligation of candor toward tribunal). Upon
such a disclosure, the court should determine whether
any partiality or bias exists and whether it justifies excusal
of the grand juror either from the particular case being
considered or from the panel. State v. Murphy, 110 N.J.
at 33.
Ordinarily, appellate courts defer to a trial court’s
findings of fact unless they were was based on inadequate
evidence, incorrect principles of law, or unless there was
a clear mistake of judgment. Thus, in formulating
remedies for violations of grand jury selection practices,
violations of procedural requirements warrant dismissal
of an indictment only when “they substantially
undermine the randomness and objectivity of the
selection mechanism or cause harm to the defendant.”
See State v. Ramseur, 106 N.J. at 232. “Unless the
prosecutor’s misconduct... is extreme and clearly
infringes upon the jury’s decision-making function, it
should not be utilized... to dismiss an indictment. [A]n
indictment should only be quashed on the clearest and
plainest grounds.” State v. Schamberg, 146 N.J. Super. at
564.However, even in the absence of such prejudice, a
conviction may be reversed if the prosecutor’s conduct in
obtaining an indictment amounted to an intentional
subversion of the grand jury process. See State v. Murphy,
110 N.J. at 35-36. In Murphy, the deputy attorneys
general demonstrated extremely poor judgment in not
advising the assignment judge that two of the grand
jurors had connections with insurance companies that
were allegedly victimized by defendant. The Law
Division found this conduct to be “contrary” to the
practice established for county-level grand juries.
However, the lack of clear direction in the Attorney
General’s Grand Jury Manual and the absence of any
directly applicable court rule combined to convince the
court that the prosecutor’s conduct, although strongly
disapproved, was not a willful and deliberate violation of
established procedures. In the future, however,
violations of the established procedures by a prosecuting
attorney will result in dismissal of an indictment prior to
trial. Ibid.In United States v. Mechanik, 475 U.S. 66, 70
(1986), the United States Supreme Court held that a
violation of Fed. R. Crim. P., which prohibits the
simultaneous presence of two witnesses before the grand
jury, constituted harmless error and thus did not require
a reversal and dismissal of the indictment.In State v. Schmidt, 213 N.J. Super. at 584, the court
held that the prosecutor’s instructions to the grand jury
regarding constructive possession were not incorrect,
although possibly imprecise and incomplete, and
therefore did not warrant dismissal of the indictment.In State v. Weston, 216 N.J. Super. 543, 547-48 (Law
Div. 1986), the court held that although the better
practice is to apply for subpoena duces tecum, it would not
grant a mistrial or dismiss the indictment where the
prosecutor subpoenaed defendant’s jail records. The
records did not disclose trial strategy, and could not have
infringed on defendant’s right to privacy or effective
assistance of counsel.In New Jersey, prosecutors have a limited duty to
present exculpatory evidence to a grand jury when the
evidence directly negates defendant’s guilt and is clearly