NEW JERSEY – Attorney General Gurbir Grewal Tuesday announced that the Office of Public Integrity and Accountability has established standard operating procedures (“SOPs”) to ensure that grand jury presentations of investigations involving fatal police encounters are conducted in a neutral, objective manner, and with appropriate transparency regarding the process.
In December 2019, Grewal issued Directive 2019-4, also known as the “Independent Prosecutor Directive,” which established a mandatory 10-step process for conducting independent criminal investigations in cases involving fatal police encounters. By state law, such investigations must be handled by the Attorney General’s Office. The Independent Prosecutor Directive established clear procedures to ensure thorough, impartial, and transparent investigations in such cases.
As set forth in the SOPs, there are three types of cases where, under both state law and the Independent Prosecutor Directive, the investigation must be presented to a grand jury, once complete, to make the ultimate decision about whether criminal charges will be filed: (1) use of force by a law enforcement officer resulting in death; (2) death of a civilian during an encounter with a law enforcement officer; and (3) death of a civilian in law enforcement custody where the death can be plausibly linked to the actions of an officer, whether through intentional use of force or reckless indifference to human life.
The Office of Public Integrity and Accountability (“OPIA”) handles such investigations and grand jury presentations on behalf of the Attorney General’s Office. The SOPs established today by OPIA are designed to ensure that such grand jury presentations will be conducted in accordance with the principles established by the Independent Prosecutor Directive.
“Investigations of fatal police encounters are among the most complex and sensitive matters that our office handles, and it is absolutely critical that we present these cases to the grand jury in a thorough, fair, and transparent manner,” Grewal said. “Now that the courts have authorized in-person grand juries, we are prepared to begin presenting these cases. The policies and procedures we put in place today reflect our commitment to conduct these proceedings in accordance with the highest standards and principles of justice.”
“In the months ahead, we will be presenting many cases involving fatal police encounters to the state grand jury, as we deal with the volume of pending cases that resulted from the COVID pandemic and the lengthy moratorium on in-person grand juries,” said OPIA Executive Director Thomas Eicher. “Despite the challenges we are facing, we are taking every step necessary to ensure that these grand jury presentations are handled with the utmost thoroughness, impartiality, and professionalism.”
The SOPs provide that before presenting a fatal police encounter to a grand jury, prosecutors should instruct the grand jurors on all criminal statutes potentially implicated by such incidents. These instructions must include a description of the legal elements of the following:
- Criminal Homicide (N.J.S.A. 2C:11-2)
- Murder (N.J.S.A. 2C:11-3)
- Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))
- Reckless Manslaughter (N.J.S.A. 2C:11-4(b))
- Death by Auto (N.J.S.A. 2C:11-5)
- Aggravated Assault (serious bodily injury, J.S.A. 2C:12-1(b)(1))
- Aggravated Assault (bodily injury with deadly weapon, N.J.S.A. 2C:12-1(b)(2))
- Official Misconduct (N.J.S.A. 2C:30-2)
In addition, the SOPs state that the grand jury should receive instructions on the following justification defenses:
- Use of Force in Self-Protection (N.J.S.A. 2C:3-4)
- Use of Force for the Protection of Other Persons (J.S.A. 2C:3-5)
- Use of Force in Law Enforcement (N.J.S.A. 2C:3-7)
The SOPs set forth key principles that must be applied before the grand jury. The first principle is “neutrality”—evidence must be presented in a neutral, objective manner that gives no indication as to the assigned prosecutor’s personal views about whether the subject-officer’s conduct was justified or whether an indictment is warranted. The SOPs further state that, to the extent possible, for the most relevant evidence, the grand jury should be presented with “direct evidence,” including body-worn camera footage and videotaped statements, rather than witness testimony summarizing such evidence.