However, the grand jury’s deliberations are not adversarial like a trial before a judge or a petit jury. The defendant has no right to be present at the grand jury, or to have counsel participate or cross-examine witnesses. It is not open to the public. An indictment can be based on hearsay or other evidence that would not be admissible at trial. Probable cause is a far lower threshold than the reasonable doubt standard of proof that applies at trial. The prosecutor has wide discretion about what evidence to seek or present, and what (if anything) to tell the grand jurors (who likely are mostly not lawyers) about the relevant law.
There are, however, some limits under Massachusetts practice: a prosecutor cannot knowingly present false evidence to a grand jury, or impair the grand jury process by presenting evidence misleadingly. Thus, in Commonwealth v. O’Dell, an indictment was dismissed because the prosecutor presented only a selected part of the defendant’s statement that tended to incriminate him, but the whole statement in context did not. The presentation “tended to distort the meaning” of the defendant’s words, and thus was unfair. And in Commonwealth v. Walczak in 2012, the Supreme Judicial Court required a prosecutor seeking a murder indictment against a juvenile, when there were substantial mitigating circumstances, to instruct the grand jury on the elements of the crime and the legal significance of those mitigating circumstances – but the Walczak holding was limited to juvenile cases; only three Justices would have applied it to adults as well.
In Commonwealth v. Fernandes, the SJC splintered again in deciding whether and how to apply the Walczak rule to adults accused of murder. Most of the Court agreed it was good practice for prosecutors to give thorough instructions on the applicable law to the grand jury so that the jurors understand the lesser offenses and defenses that may be in play, but there were three main schools of thought on what should happen if such instructions are not given. Justice Budd, writing for herself, Justice Gaziano, and Justice Kafker, established a plurality rule that an indictment may be dismissed if a prosecutor fails to instruct the grand jury regarding compelling exculpatory evidence that probably would have presented a complete defense to the crime. Chief Justice Gants and Justice Lenk would have gone farther, requiring the prosecutors to instruct on mitigating evidence that might have influenced the decision to indict for murder rather than a lesser charge or none at all. On the other end of the spectrum, Justices Cypher and Lowy would dismiss an indictment only for affirmative prosecutorial misconduct, if the prosecutor has information that would clearly exonerate the defendant but withholds it from the grand jurors.
In Fernandes itself, the defendant was indicted for murdering her fiancé, and said at the time, “he hit me, so I hit him.” She described an altercation in which he had choked and beaten her and then pulled out “knives and guns” before she stabbed him. The police noticed that Ms. Fernandes had visible bruises, and there was evidence that her fiancé had been abusive in the past. On the other hand, there was also evidence that she had been violent toward him, and in fact had stabbed him another time previously. In short, there was evidence presented to the grand jury showing that Ms. Fernandes killed her fiancé, but also evidence that pointed to self-defense (which would be a complete defense to murder) or perhaps excessive use of force in self-defense (which would mitigate murder to the lesser crime of manslaughter). The grand jury was not instructed on the legal principles relating to self-defense, which a judge held rendered the grand jury process unfair. A majority of the Court ordered the murder indictment reinstated, based on Justice Budd’s determination that the exculpatory evidence was not sufficiently strong that a properly instructed grand jury would not have indicted Ms. Fernandes for the killing at all, and Justice Cypher’s opinion that affirmative misconduct was required to warrant dismissal.
I share Chief Justice Gants’s concern that the Court’s ruling will give prosecutors little incentive to give grand jurors full instructions on the relevant legal principles. The grand jury is not and should not be a mere arm of the prosecution. Some oversight by the courts is necessary to avoid the perception, as stated succinctly by former New York Judge Sol Wachtler, that a determined prosecutor can “indict a ham sandwich.” In order for the grand jury to be a real check on the prosecution, and the voice of the community at the outset of the criminal process, the grand jurors must know what the law is regarding the crimes they are being asked to charge. Presenting evidence without explaining why it matters renders that evidence meaningless. Prosecutors can suggest charges to the grand jury, but the jurors have the final say. They can decide in a given situation that a manslaughter charge is more appropriate than murder. That decision, in turn, significantly changes the balance of power later in the process. Some District Attorney’s offices routinely instruct grand juries on defenses and mitigating factors. It is not too much to ask for the others to do the same before commencing prosecutions for serious felonies. Under Justice Budd’s plurality opinion, an indictment would only ever be dismissed when both the law and the evidence probably (most likely) support a complete defense for the accused – and those are cases that prosecutors should not be pursuing anyway, based on their ethical obligations to pursue the interests of justice. When given the opportunity, the SJC should reconsider and apply this protection to felonies generally so that the grand jury process is fair and effective.