It is often exceedingly difficult for a defense attorney to obtain access to the legal instruction given by the prosecutor to a grand jury. Under Fed. R. Crim. P. 6(e)(3)(E)(ii), discovery of grand jury proceedings may be granted where "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." But absent disclosure by the government of the transcript containing the colloquy between prosecutor and grand jury, the only argument that an erroneous instruction was provided must be made inferentially from the words of the indictment and the failure of the indictment to make out the essential elements of the charged offense (hence, the argument goes, the prosecutor must have misinstructed the body in order to have obtained the true bill).
Even more frustrating, when the high hurdle to discovering the legal instructions can be surmounted, there is commonly no remedy. Courts routinely have held that dismissal is not a proper remedy for faulty grand jury instructions, although there are scattered district courts which have dismissed indictments on that ground. See, e.g., United States v. Buchanan, 767 F.2d 477 (10th Cir. 1986) (no dismissal available), cert. denied, 494 U.S. 1988 (1990). But see United States v. Peralta, 763 F. Supp. 14 (S.D.N.Y. 1991) (distinguishing Buchanan and dismissing indictment); United States v. Vetere, 663 F. Supp. 381 (S.D.N.Y. 1987) (dismissing indictment).
However, a recent New Jersey Supreme Court case offers hope that there is relief available where the prosecution errs. In State v. Lisa, 194 N.J. 409 (2008), a defendant was indicted for reckless manslaughter when a teenaged victim died from a drug overdose while a guest in Lisa’s home. The prosecutor charged the grand jury that Lisa could be held criminally accountable for the girl’s death based on a civil liability standard found in the Restatement (Second) of Torts, which obligates one to exercise a duty of care where he has voluntarily assumed the care of another and secluded person and that aid from others was unavailable.
The Supreme Court, agreeing with the intermediate appellate court, held that reliance on a civil standard for criminal liability was improper because the use of civil standards which had not migrated into substantive criminal law provided insufficient notice to an accused and violated due process principles.
The Supreme Court rejected the argument that the evidence before the grand jury was insufficient to support a reckless manslaughter charge on some other theory, and the Court discussed the indictment. The State was free to re-present the case on some other theory of liability.
Achieving an indictment’s dismissal, particularly in a case which was brought with some notoriety, is a notable accomplishment and a setback for prosecutors, even if not the last word in a defendant’s fate. The Lisa case supports the vital principle that words – especially where delivered by a prosecutor in ex parte fashion to a grand jury – matter.