21 Sep 23

NJ Waiver of Indictment

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Last Updated on: 2nd October 2023, 05:52 pm


NJ Waiver of Indictment

In New Jersey, prosecutors generally need an indictment from a grand jury to pursue felony charges against you. However, in some cases you may choose to waive indictment and proceed by accusation to expedite the case. Understanding when waiver of indictment makes sense is critical.

What is Indictment in New Jersey?

The New Jersey Constitution provides that crimes punishable by over 1 year in prison (felonies) must be prosecuted by indictment. An indictment is a formal criminal charge issued by a grand jury after considering evidence presented by prosecutors.

This process can take weeks or months while prosecutors subpoena documents, question witnesses, and present evidence to the grand jury for consideration. Only if 12+ jurors vote to indict can felony charges move forward.

What is Waiver of Indictment?

You have the right to waive indictment under N.J.S.A. 2C:1-8. This means agreeing to skip the grand jury process and allow prosecutors to charge you by accusation instead.

To charge by accusation, the prosecutor simply files a criminal complaint and serves it on you. This moves the case forward to the pre-trial phase more quickly.

When Would Waiving Indictment Make Sense?

There are some situations where waiving indictment could potentially benefit you:

  • Avoid sitting in jail awaiting indictment
  • Expedite the case to start negotiating a plea deal sooner
  • Spare trauma for victims and witnesses from testifying before a grand jury
  • Prevent prosecutors from piling on additional charges

However, there are also risks involved that require careful consideration.

Downsides and Risks of Waiving Indictment

Important downsides of waiving indictment include:

  • Prosecutors only need a low “probable cause” standard to accuse, versus proof “beyond a reasonable doubt” to indict
  • You give up the right to have charges screened through the grand jury process
  • Judges may view waiver as a sign you acknowledge guilt
  • Prosecutors may take waiver as a sign of weakness and take a harder negotiating stance

Never waive indictment without thoroughly understanding the risks and getting advice from your criminal defense attorney.

Can a Waiver of Indictment be Withdrawn?

In most cases, a waiver of indictment cannot be withdrawn. Once you waive and agree to proceed by accusation, the charges will move forward unless the prosecutor voluntarily agrees to dismiss the case.

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However, if there is evidence your waiver was unknowing or involuntary, your attorney can file a motion to withdraw the waiver and require indictment.

Does Waiving Indictment Speed Up the Case?

Bypassing the grand jury can expedite the initial charging process. But prosecutors are still required to provide discovery and file pre-trial motions, which takes time. So waiver of indictment alone does not guarantee a speedy resolution.

Your attorney can file motions to push the case forward more quickly after charges are filed.

Waiving Indictment as Part of a Plea Deal

Prosecutors may agree to benefits like charge reductions or sentencing recommendations in exchange for your waiver of indictment. Bypassing the grand jury provides value to the prosecution.

If you plan to plead guilty anyway, your attorney may be able to negotiate a beneficial plea bargain in exchange for waiver.

Waiving Indictment on Probation Violations

If you waive indictment for the original criminal charges, that waiver may also cover subsequent probation violation allegations. This means prosecutors could file a violation of probation (VOP) accusation without another grand jury.

However, your lawyer may still be able to challenge the validity of your waiver if it was improperly obtained or does not apply.

Federal Waiver of Indictment

There is also a process for waiving indictment on federal felony charges to proceed by information instead. The same strategic considerations apply when weighing federal waiver.

Consult Your Attorney Before Waiving Indictment

While waiver of indictment may provide some advantages in unique cases, it also comes with major risks. Never agree to waive without first consulting privately with an experienced criminal defense lawyer.

Together, you can decide if bypassing the grand jury is the right strategic move, or whether you would benefit from having charges screened through the indictment process.