Committee on Grand Jury Proceedings Submits Final Report on Best Practices

Late last month the SJC announced that the Committee on Grand Jury Proceedings submitted its Final Report to the Justices on proposed best practices with respect to grand jury presentments. As provided in the release, these best practices “are designed to assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution.” When the Committee invited public comment late last year, the BBA Ethics Committee and Criminal Law Section Steering Committee offered comments.

Keep reading to learn more about the Best Practices and submitted comments!

The production of the best practices began in early 2017, when the Court, in Commonwealth v. Grassie announced the appointment of a committee to assist in gaining a better understanding of the current grand jury practices employed by district attorneys and the Attorney General. The Committee on Grand Jury Proceedings was made of up of representatives from the judiciary, the Attorney General’s Office, the Massachusetts District Attorneys Association, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and others with extensive experience in grand jury proceedings. The Court asked the committee “to report on the range of practices employed by the various district attorneys’ offices as well as the Office of the Attorney General with respect to grand jury presentments; the reasons supporting the different practices; the substance of the instructions that grand juries receive from those district attorneys who currently provide them; and any recommended best practices.”

The final report submitted to the Justices, which you can read here, addresses issues such as: what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on less serious offenses than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.

When the Committee solicited comments on the proposed best practices in the spring, it generated some debate in the legal community, and the BBA Ethics Committee and Criminal Law Section Steering Committee discussed them at length. The comments submitted by members of these Committees reflect a collection of views, from various interested BBA members. In general, however, many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices were welcome.

The Ethics Committee overall felt the best practices will be helpful in standardizing approaches to grand jury presentments and simply noted one ambiguity in the use of the phrase “be mindful.” Some Committee members felt the term was overly vague and open to interpretation. The final report seemed responsive to that concern, replacing the phrase “be mindful,” with “recognize.”

Members of the Criminal Law Section Steering Committee also commended the SJC Committee on Grand Jury Proceedings for its significant undertaking, noting that current practices vary greatly across the courts and expressing hope that the proposal would offer helpful guidance and encourage more predictability. A few members raised specific concerns about various provisions, including a suggestion that the definition of “target” in the target warnings be clarified, and that consideration be given to whether certain warnings were adequate for those without counsel. In addition, a member of the Criminal Law Section Steering Committee expressed a concern that the best practice related to the presentation of evidence seemed to suggest there was a presumption that all evidence obtained through a grand jury subpoena be given to the grand jury, a misinterpretation of existing case law. The Final Report makes clear that it is best practice to present the grand jury with all evidence received “unless the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

The Committee’s Chair, Superior Court Judge Robert L Ullmann, noted the best practices benefited from a range of public comment, and the BBA is very grateful, as always, to have had the opportunity to share the thoughts of our members!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association