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State v. Fortin2/3/2004
only two constituent elements that "must be presented to a grand jury and included in the murder indictment": a purposeful or knowing state of mind, and causation. 131 N.J. at 224. Although not defined as elements of capital murder under our decisional law, see, e.g., State v. Cruz, 171 N.J. 419, 427 (2002) (Cruz II), we also require that the capital "triggers" defined in N.J.S.A. 2C:11-3c be presented to a grand jury and specified in an indictment. R. 3:7-3(b).
On the other hand, under the Act, the prosecutor alone, not a grand jury, determines whether to charge the defendant with capital murder based on a finding that there is evidence to support the existence of an aggravating factor. If the prosecutor makes an affirmative finding of an aggravating factor, he must serve on the defendant a Notice of Aggravating Factors. The statute requires:
Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.
[N.J.S.A. 2C:11-3c(2)(e).]
The Martini I Court reasoned that the State Constitution does not require aggravating factors to be submitted to the grand jury in capital cases because those factors are not elements; they "merely enlarge the available sentencing options for certain defendants." 131 N.J. at 224. The Court found that because aggravating factors "affect only the severity of the sentence that a convicted defendant faces," the concerns underlying Paragraphs 8 and 10 of Article 1, did not come into play. Id. at 223. Those concerns are that a defendant must be "adequately informed of the alleged elements of the crimes" in order to "mount an informed defense" and that the defendant must not be subject to "prosecution of unfounded charges." Ibid.
The Martini I Court noted that in capital cases the defendant has the opportunity to challenge the sufficiency of the evidence supporting an aggravating factor in a summary proceeding before the trial court. Id. at 227 (citing State v. McCrary, 97 N.J. 132, 142 (1984)). The Court was satisfied that the notice provisions of N.J.S.A. 2C:11-3c(2)(e) and a McCrary hearing adequately provided capital defendants "the protections contemplated by the Constitution: adequate notice and well founded prosecutions." Id. at 227.
Clearly, however, those assurances of notice and a well founded prosecution are not adequate substitutes for the constitutional right of a grand jury presentation if aggravating factors are elements of the crime of capital murder. The grand jury serves an important and historic purpose in standing between the defendant and the power of the State, protecting the defendant from unfounded prosecutions. Hogan, supra, 144 N.J. at 227; State v. Del Fino, 100 N.J. 154, 164 (1985). The grand jury, which is comprised of members of a cross-section of the community, represents a democratic safeguard to our judicial system. State v. Gilmore, 103 N.J. 508, 526 (1986); State v. Zavala, 259 N.J. Super. 235, 241 (Law Div. 1992) (citing Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181, 187 (1946)). We rely on the common wisdom of ordinary citizens to make the important fact-finding decisions that must precede the filing of an indictment, even in murder cases.
A majority of States have abandoned the indictment requirement and permit prosecutions to proceed on the basis of an information filed by the prosecutor. See generally Wayne R. LaFave et al., Criminal Procedure § 1.3(m) (2d ed. 1999 & Supp. 2002). In those States, typically, there is a judicial heari
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