Lesser Included Instructions To Grand Jurors

The New Jersey Supreme Court has rejected a motion to dismiss a first degree murder indictment for the failure of the prosecutor to explain lesser murder charges

Defendant moved to dismiss the indictment claiming that, because the grand jury asked about lesser-included offenses, the prosecutor should have explained the lesser included offenses for murder. The court denied the motion, finding that the grand jury was not requesting instructions on lesser-included offenses, but rather “clarification.” The Appellate Division denied defendant’s motion for leave to appeal. The Court granted leave to appeal. 236 N.J. 631 (2019).

HELD: The prosecutor did not impermissibly interfere with the grand jury’s investigative functions. As the trial court found, the grand jury here sought clarification rather than specific instructions on lesser-included offenses for murder. The Court provides guidance as to when such instructions should be given.

The court deemed the matter one of public importance and declined to rule the issue moot. 

Guidance

Although no instruction as to lesser-included offenses was needed in this case, the Court notes that other cases may call for such instructions. When the grand jurors’ questions, considered in context, ask about lesser-included offenses and there is a rational basis for instructions on lesser-included offenses, the better practice for prosecutors is to provide them and advise the grand jury that the trial court may include instructions on lesser-included offenses whether or not the grand jury authorizes them. That will ensure that grand jurors are fully informed of the consequences of their decisions.