According to this article about Bridgegate:

Then, in a dramatic twist, Brennan called for any New Jersey citizen currently serving on a grand jury to exercise their legal right to summon him to testify before them and indict the governor.

"If anybody in the state of New Jersey is currently sitting on a grand jury, I implore you: Summon me before you," urged Brennan. "I will come before you with the transcripts and the evidence and you can get an indictment. Any grand jury, without prodding from the prosecutor, can call witnesses and demand evidence and demand this case be prosecuted...without the prosecutor's help."

Dennis Kearney, a former assistant prosecutor in Essex County who's now a partner in the criminal defense firm of Day Pitney, said such a move, while technically possible, would be unprecedented, and "very unlikely" to happen.

"The idea that a grand jury would 'go rogue'?" asked Kearney. "I've never seen it, and I go before grand juries for a living."

The phrase "demand this case be prosecuted" is rather ambiguous, and I'm not sure whether they mean that the jury could air Christie's dirty laundry in public until the prosecutor agreed to formally ask for an indictment, or that the jury could actually perform the indictment on its own.

Do grand juries have the power to indict people all by themselves, or does the prosecutor have to initiate the process? Are there any known examples of a grand jury "going rogue" as they describe?


1 Answer 1


Traditionally, anyone could bring a bill of indictment to a grand jury. This article from Creighton Law Review provides some historical context. Government prosecutors are the overwhelming norm now, but private prosecution used to be more common. Indeed, New Jersey still has limited authorization for private prosecution (Court rule 3:23-9(d)). The New Jersey rule governing the grand jury is 3:6, and rule 3:6-8(a) on return of indictment says:

An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreperson or the deputy foreperson rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has been released pending trial and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons.

Note that the jurors decide on an indictment and return the indictment to a judge, not the prosecutor. In the rules governing grand juries, the prosecutor is allowed to be present and to speak, but has no official controlling role, other than whatever leadership is granted by the foreman. I don't know whether it is universal that grand juries do what the prosecutor tells them to, such as indicting a ham sandwich, but at least theoretically they have the power to act independently. The rules actually do not say who can ask questions of a witness, which could lead one to conclude that of course it is the prosecutor (and that the prosecutor does everything, except vote on the indictment).

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