Massachusetts Grand Jury Indictments: How Superior Court Cases Begin

A Massachusetts grand jury indictment is the written accusation that begins a Superior Court prosecution after grand jurors find probable cause. The proceeding is secret and nonadversarial. The person under investigation ordinarily does not participate, although the prosecutor or grand jury may call that person as a witness or permit requested testimony.

Defense counsel acts at different stages. Before indictment, counsel may advise the recipient of a target letter or subpoena, move to quash an unreasonably broad document subpoena, and provide exculpatory material to the prosecutor. After indictment, counsel reviews the grand jury minutes and may file a motion to dismiss for insufficient evidence or misconduct that impaired the proceeding. This page explains the indictment requirement, what happens before the grand jury, how counsel responds to a subpoena or target letter, and the grounds for challenging an indictment.

The firm’s page on what to do when under criminal investigation before charges are filed explains how a lawyer advises a person contacted by the police, asked for an interview, searched, or subpoenaed before any complaint or indictment issues.

The Indictment Requirement (M.G.L. c. 263, § 4)

A grand jury indictment is a formal written accusation issued by a grand jury that has found probable cause to believe the defendant committed the charged offense. An indictment is not a finding of guilt. An indictment is a finding that enough evidence exists to charge the defendant formally and bring the case to trial in the Superior Court.

Under M.G.L. c. 263, § 4, a defendant charged with an offense punishable by imprisonment in state prison has the right to be proceeded against by indictment. The right to indictment does not apply when the offense is within the concurrent jurisdiction of the District Court and the Superior Court and the District Court retains the case. A defendant may waive the right to indictment. M.G.L. c. 263, § 4A.

The Fifth Amendment guarantees grand jury indictment in federal felony prosecutions. The United States Supreme Court has never applied the Fifth Amendment grand jury guarantee to the states. Hurtado v. California, 110 U.S. 516 (1884). In Massachusetts the right to indictment comes from Article 12 of the Massachusetts Declaration of Rights. The Supreme Judicial Court has held that no one may be convicted of a crime punishable by a term in state prison without first being indicted by a grand jury. Commonwealth v. Barbosa, 421 Mass. 547 (1995); Jones v. Robbins, 74 Mass. 329 (1857).

The Supreme Judicial Court has also held that Article 12 prohibits confinement in state prison of a defendant who was neither indicted nor waived indictment. Brown v. Commissioner of Correction, 394 Mass. 89 (1985). Any defendant facing a Massachusetts Superior Court prosecution for murder, rape, armed robbery, drug trafficking, or another serious felony will therefore have been indicted by a grand jury before the case is in that court.

How Cases Come Before the Superior Court

Direct Indictment

In serious felony cases, including murder, rape, armed robbery, drug trafficking, and major fraud, the District Attorney’s Office may present the case directly to a grand jury without first filing charges in District Court. The grand jury hears the prosecution’s evidence and votes on whether probable cause exists. The grand jury returns a true bill when at least twelve grand jurors vote to indict. The defendant is then arraigned in Superior Court, sometimes with no earlier court proceeding in the case. A person arrested for murder may remain in custody while the grand jury investigation proceeds.

In a direct indictment case, the first time defense counsel appears in court is at the Superior Court arraignment. There is no prior District Court record of the case. There has been no clerk-magistrate hearing, no District Court arraignment, and no pretrial conference. The Superior Court arraignment is the beginning of the formal criminal proceeding.

Transfer From District Court

Many Superior Court cases begin in the District Court and are transferred after indictment. A defendant may be arraigned in District Court on a felony charge that the DA’s Office elects to prosecute in Superior Court. The case then proceeds through one or more District Court appearances while the DA’s Office presents the evidence to a grand jury. The District Court case is transferred to Superior Court after the grand jury returns a true bill. The CORI entry created at the District Court arraignment remains on the record.

In a transferred case, the defense can see the prosecution’s theory and evidence before the Superior Court case begins. The discovery available in District Court includes police reports, 911 recordings, and witness statements. The District Court discovery shows what the grand jury presentation and the trial evidence are likely to include. Defense counsel who studies the District Court discovery early begins preparing the defense well before any Superior Court deadline.

The DA’s Election: District Court or Superior Court

Some offenses are punishable either in a house of correction or in state prison. Assault and battery with a dangerous weapon, some drug distribution charges, strangulation, and some firearms offenses fall in this category. The District Attorney’s Office may prosecute an offense within concurrent jurisdiction in either court. After an indictment, a Superior Court judge may impose a state prison sentence if the defendant is convicted. The defense should therefore prepare for trial and identify any suppression, discovery, or grand jury motion as early as possible.

The available sentence depends on the court in which the case is prosecuted. Under M.G.L. c. 218, § 26, the District Court and the Boston Municipal Court have original jurisdiction concurrent with the Superior Court over all misdemeanors except libel. The same concurrent jurisdiction covers all felonies punishable by imprisonment in the state prison for not more than five years and a list of specific offenses the statute names.

A District Court or Boston Municipal Court judge may keep a case that falls within the concurrent jurisdiction and dispose of it, or may bind the defendant over to the Superior Court. A District Court or Boston Municipal Court judge cannot impose a state prison sentence. M.G.L. c. 218, § 27; Commonwealth v. Lightfoot, 391 Mass. 718 (1984); Commonwealth v. Smith, 444 Mass. 497 (2005). The firm’s page on the Massachusetts District Courts sets out the rules on where a felony can be heard and what sentence each court can impose.

The Massachusetts Grand Jury Process

Composition and Selection

A Massachusetts grand jury is drawn at random from the jury pool of the county where the alleged offense occurred. The statutes provide for the selection of twenty-three grand jurors. The Massachusetts Rules of Criminal Procedure permit the court to select not more than twenty-three grand jurors, together with up to four alternates.

Mass. R. Crim. P. 5(a)(1). Thirteen grand jurors must be present for the grand jury to hear evidence, consider a proposed indictment, or take any other official action. An indictment may be found only on the concurrence of twelve or more grand jurors. Mass. R. Crim. P. 5(e).

The grand jury returns a no bill on a charge when fewer than twelve grand jurors vote to indict, and no indictment issues on that charge. Each case in which the grand jury returns a no bill is endorsed “no bill” and filed with the court on a daily return. An accused who is held on process is discharged unless held on other process. Mass. R. Crim. P. 5(f).

Grand jurors serve a fixed term. The term is six months in Suffolk, Middlesex, Worcester, Norfolk, and Bristol Counties and four months in Hampden, Essex, and Plymouth Counties. In each county, service continues until another grand jury is impanelled. M.G.L. c. 277, §§ 2 and 2B through 2H. A grand jury also serves until the first sitting of the next authorized grand jury unless discharged sooner or unless its service is extended to complete an investigation then in progress. Mass. R. Crim. P. 5(h).

A grand jury does not sit on a single case at a time. A grand jury hears many cases across its term, so the jurors who vote on an indictment may have heard the presentation weeks before the vote is taken.

The Presentation: What the Grand Jury Hears

The grand jury proceeding is ex parte and controlled by the prosecution. The prosecutor, the witnesses called by the prosecutor, and the grand jurors participate. The person under investigation is not present unless called or permitted to testify. No judge presides in the grand jury room, although a judge remains available to decide legal questions. A prosecutor may not attend deliberation or voting unless the grand jury asks. A prosecutor who attends at the grand jury’s request may answer only questions of law. Mass. R. Crim. P. 5(g).

The prosecutor presents the case through witness testimony and documentary evidence. Police officers typically testify about the investigation. Expert witnesses may testify on forensic evidence. The alleged victim may testify. In many cases the victim does not appear, and the police officer instead recounts the victim’s statements as part of the officer’s own testimony. An indictment may be based entirely on hearsay. A judge will not dismiss an indictment on the ground that it is based on hearsay. Mass. R. Crim. P. 4(c); Commonwealth v. Gibson, 368 Mass. 518 (1975).

The grand jury hears the evidence the prosecution chooses to present. There is no general rule requiring a prosecutor to bring all exculpatory evidence to the attention of a grand jury. Commonwealth v. O’Dell, 392 Mass. 445 (1984).

The prosecutor must still present some exculpatory evidence. The prosecutor should place exculpatory evidence before the grand jury when the evidence would greatly undermine the credibility of an important witness or would likely affect the grand jury’s decision to indict. A presentation that repeats part of a defendant’s statement while withholding the exculpatory part, so that what remains reads as an admission, impairs the integrity of the proceeding and can require dismissal of the indictment. O’Dell.

The Probable Cause Standard

The standard at the grand jury is probable cause, a substantially lower threshold than the beyond-a-reasonable-doubt standard that governs at trial. Under Commonwealth v. McCarthy, 385 Mass. 160 (1982), the grand jury must at the very least hear sufficient evidence to establish the identity of the accused and probable cause to arrest. The grand jury does not decide guilt or innocence. The grand jury decides only whether enough evidence exists to formally charge the defendant and bring the case to trial.

Most grand jury presentations result in indictments, because the probable cause standard is low and the proceeding is one-sided. A no bill, meaning a grand jury’s refusal to indict, is relatively rare. A grand jury typically returns a no bill because of a significant evidentiary problem with the case, the grand jury’s assessment that the complaining witness lacks credibility, or a witness whose account weakened the presentation.

Grand Jury Secrecy, Recording, and the Minutes

Grand jury proceedings are conducted in secret. Under Mass. R. Crim. P. 5(d), a person performing an official function in relation to the grand jury may not disclose matters occurring before it except in the performance of official duties or when the court directs. A judge may also order an indictment kept secret until after arrest. Rule 5(d) also provides that no obligation of secrecy may be imposed on any person except in accordance with law. The testimony and evidence presented to the grand jury are not disclosed to the defendant before indictment.

The proceeding is recorded. The entire grand jury proceeding, with the exception of the grand jury’s own deliberations, must be recorded in a manner that permits reproduction and transcription. The recording must include any legal instructions given to the grand jury by a judge or a prosecutor and a record of all those present. Commonwealth v. Grassie, 476 Mass. 202 (2017); Mass. R. Crim. P. 5(i).

After indictment, the defendant is entitled to the minutes of the grand jury, a transcript of the testimony and evidence presented, as part of discovery in the Superior Court case under Mass. R. Crim. P. 14.

The grand jury minutes identify every witness who appeared before the grand jury and preserve each witness’s testimony word for word. The minutes list the exhibits presented. Defense counsel can compare the grand jury testimony in the minutes with the anticipated trial testimony to find inconsistencies. The minutes also reveal the specific theory of the case the prosecution presented to secure the indictment. Defense counsel examines the minutes immediately on receipt and uses them to prepare cross-examination for trial and to identify potential grounds for a motion to dismiss the indictment.

The Target Letter

A person who is the target of a grand jury investigation may receive a target letter from the DA’s Office before the grand jury votes to indict. A target letter is a formal written notification that the recipient is a target of the investigation and that the grand jury is considering an indictment. A target letter typically identifies the right to counsel and the possibility of appearing before the grand jury.

A target letter means that the prosecutor is considering an indictment. Counsel can contact the prosecutor, determine what information is available, preserve helpful evidence, and evaluate whether the target should ask to testify. The decision whether to ask to testify requires a close assessment of the known evidence, the prosecution’s theory, and the risks and possible benefits of a recorded statement under oath.

Massachusetts law does not require a target warning. A person may be summonsed before a grand jury without being told that the prosecutor regards them as a putative defendant. Commonwealth v. D’Amour, 428 Mass. 725 (1999). A person who has received no target letter may therefore still be a target of the investigation.

Defense Strategy at the Grand Jury Stage

The Target’s Decision Whether to Seek to Testify

A defendant has no right to testify before a Massachusetts grand jury. In re a Grand Jury Subpoena, 447 Mass. 88 (2006); Commonwealth v. Gibson, 368 Mass. 518 (1975). The prosecutor or grand jury may deny a target’s request to testify. A target whom the prosecutor subpoenas, however, must appear and may assert the privilege against self-incrimination in response to particular questions.

A target who testifies after the prosecutor offers or grants the opportunity faces serious risk, because the prosecutor controls the questioning and the testimony is recorded. The target should decide whether to testify only after consulting counsel and reviewing the available information about the investigation.

Grand jury testimony is given under oath and recorded. Counsel should compare the proposed account with the available evidence, prior statements, and likely questions before a target requests an opportunity to testify. The Commonwealth may later seek to use the recorded testimony for impeachment or another evidentiary purpose, subject to the trial judge’s ruling.

A witness may consult counsel and have counsel present during questioning before the grand jury. Counsel may not object, argue, cross-examine a witness, or otherwise address the grand jury or prosecutor. M.G.L. c. 277, § 14A; Mass. R. Crim. P. 5(c). A witness may not refuse to appear because counsel is unavailable. The grand jury is also not a critical stage of the prosecution for constitutional right-to-counsel purposes. Gibson, 368 Mass. 518.

A target who has not been subpoenaed may decline to request testimony. A subpoenaed target must appear and should obtain advice about asserting the right to remain silent before answering potentially incriminating questions.

Grand Jury Subpoenas for Testimony

A person who is not a target but who is a witness with relevant knowledge may receive a grand jury subpoena for testimony. A grand jury subpoena is legally enforceable. The recipient must appear and answer questions unless a valid legal privilege applies. The Fifth Amendment privilege against self-incrimination applies before the grand jury. A witness can refuse to answer questions if the answers would tend to incriminate the witness. The invocation of the privilege must be specific. The witness must assert the privilege question by question rather than as a blanket refusal to testify.

A prosecutor who has reason to believe that a grand jury witness is a target of the investigation, or is likely to become one, must give the witness two warnings before the witness testifies. The prosecutor must advise the witness that the witness may refuse to answer any question if a truthful answer would tend to incriminate the witness.

The prosecutor must also advise the witness that anything the witness says may be used against the witness in a later proceeding. Commonwealth v. Woods, 466 Mass. 707, 719-720 (2014). The Supreme Judicial Court adopted the warning requirement under its supervisory power, not as a constitutional requirement. Id. at 720. The prosecutor does not have to tell the witness that the witness is a target. Id. at 717. A person who receives a grand jury subpoena should speak with a lawyer before appearing, whether or not anyone has said that the person is a target.

Grand Jury Subpoenas for Documents

A grand jury can also issue subpoenas for documents. A grand jury may subpoena business records, financial records, phone records, emails, and other documentary evidence. A document subpoena is served on the person or institution that holds the records and requires production of the specified documents to the grand jury. Document subpoenas are subject to challenge through a motion to quash when they are unreasonably broad or issued in bad faith. A motion to quash may also challenge a subpoena that seeks privileged materials, such as attorney-client communications or documents shielded by the Fifth Amendment act-of-production privilege.

The act-of-production doctrine was established in Fisher v. United States, 425 U.S. 391 (1976), and applied in United States v. Hubbell, 530 U.S. 27 (2000). Under the doctrine, the Fifth Amendment protects a target against a subpoena that would require the target to identify and produce documents whose existence is itself incriminating. Producing the requested documents can amount to admitting that they exist, that the target possesses them, and that they are authentic.

The act of production is testimonial and protected by the Fifth Amendment when the existence, possession, and authenticity of the documents are not a foregone conclusion already known to the government. See Your Right to Remain Silent in Massachusetts and Your Fifth Amendment Right to Refuse a Passcode in Massachusetts.

Resolving the Case Before Indictment

During the investigation, defense counsel may have an opportunity to prevent an indictment or resolve the case in District Court. Serpa Law Office contacts the assigned prosecutor, presents relevant exculpatory material, and seeks a District Court resolution when the facts and available charges support one.

A District Court or Boston Municipal Court judge has no authority to impose a state prison sentence in a case that remains in that court. M.G.L. c. 218, § 27; Commonwealth v. Lightfoot, 391 Mass. 718 (1984).

The limit on a District Court or Boston Municipal Court sentence does not change the charge. A felony prosecuted in District Court remains a felony. The Commonwealth may still seek an indictment and move the case to Superior Court. A person whose case is resolved before a complaint or indictment issues may avoid a court CORI entry, although an arrest or another agency record may still exist. The firm’s case results include matters resolved before indictment.

The Motion to Dismiss the Indictment

Insufficient Evidence: The McCarthy Standard

An indictment can be challenged through a motion to dismiss in the Superior Court on the ground that the evidence presented to the grand jury was legally insufficient to support it. Under Commonwealth v. McCarthy, 385 Mass. 160 (1982), the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest. The grand jury’s failure to hear any evidence of criminal activity by the defendant justifies dismissal of the indictment.

Apart from the McCarthy requirement, a court will not inquire into the competency or sufficiency of the evidence before the grand jury. The McCarthy motion is therefore not a weighing of the evidence. A McCarthy motion is a legal challenge to whether the presentation contained evidence of the defendant’s criminal activity at all.

Defense counsel may file a McCarthy motion when the presentation contains no evidence connecting the defendant to the offense or no evidence supporting an element of the offense. Defense counsel may also file the motion when the grand jury heard no evidence of the specific intent, knowledge, or other mental state that the charge requires.

Prosecutorial Misconduct Before the Grand Jury

A Massachusetts indictment can also be challenged through a motion to dismiss based on impairment of the integrity of the grand jury proceeding. Under Commonwealth v. Salman, 387 Mass. 160 (1982), a defendant may attack the validity of an indictment by a motion to dismiss where it appears that the integrity of the process has been impaired.

The knowing use of false testimony by the Commonwealth or one of its agents to procure an indictment is a ground for dismissal. A defendant who makes a substantial preliminary showing that false testimony was knowingly presented is entitled to an evidentiary hearing on the question.

In Commonwealth v. Mayfield, 398 Mass. 615 (1986), the Supreme Judicial Court set the standard that a motion to dismiss for impairment of the grand jury proceeding must satisfy. The defendant must show that false or deceptive evidence was given to the grand jury knowingly, or with reckless disregard of the truth. The defendant must also show that the evidence was presented for the purpose of obtaining an indictment and that the evidence probably influenced the grand jury’s determination to indict. Materiality alone is not enough. The defendant must show probable prejudice on the entire grand jury record.

Recognized grounds for a motion to dismiss for impairment of the grand jury proceeding include the knowing presentation of false testimony. The withholding of exculpatory evidence that would greatly undermine the credibility of an important witness or would likely affect the grand jury’s decision is also a recognized ground. Other recognized grounds include inflammatory or improper argument that went beyond the evidence and misstatement of the law applicable to the charged offense in instructions to the grand jury.

A judge dismisses an indictment for problems in the grand jury presentation only when the defense proves that the problems impaired the integrity of the proceeding. Not every error or impropriety before a grand jury warrants dismissal.

Defense counsel therefore examines the grand jury minutes, including the legal instructions given to the grand jury, for overreach, misleading characterizations of testimony, and misstatements of law. A judge who allows a motion to dismiss for impairment of the grand jury proceeding ordinarily dismisses the indictment without prejudice. The Commonwealth may then seek a new indictment, unless the presentation was so wilfully deceptive or otherwise egregious that reindictment should be barred. Commonwealth v. O’Dell, 392 Mass. 445 (1984).

Variance Between the Indictment and the Evidence

A motion to dismiss can also challenge a variance between the allegations in the indictment and the evidence the Commonwealth intends to present at trial. Under Mass. R. Crim. P. 4(a), an indictment must contain a caption as provided by law together with a plain, concise description of the act that constitutes the crime, or an appropriate legal term describing it.

A variance motion challenges whether the defendant received adequate notice of the charge when the indictment charges the offense on a specific date and at a specific location and the trial evidence does not support those specifics. The variance motion is based on the constitutional rule that a defendant may not be convicted of a crime for which the grand jury did not indict. Commonwealth v. Barbosa, 421 Mass. 547 (1995).

What Happens After an Indictment

After indictment, the defendant is arraigned in Superior Court. The court enters a not-guilty plea. The judge then decides whether to release the defendant on personal recognizance or set bail, and what conditions of release to impose. On a qualifying charge, the prosecution may request a dangerousness hearing under M.G.L. c. 276, § 58A. The defense then receives grand jury minutes and other discovery, litigates motions to dismiss or suppress, and prepares the case for trial. The firm’s Massachusetts criminal-process guide explains those later stages.

An indictment can also affect a person’s license, immigration status, and schooling. A licensed professional must identify the profession’s actual disclosure rule because some obligations arise from a charge, others from a conviction, and others from specified conduct. Immigration consequences depend on status, the charged offense, the disposition, and sometimes the sentence. A college or university student may face a separate school process under the institution’s code of conduct. An indictment also creates a Superior Court entry on the defendant’s CORI, although later access to the entry depends on the disposition and current sealing law.

Superior Court Representation

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and has tried Superior Court cases to verdict throughout Massachusetts. His trial history includes first-degree murder in Plymouth County, aggravated rape in Suffolk County, armed assault with intent to murder in Suffolk County, mayhem, and major drug-trafficking cases. The firm’s case results include outcomes in serious felony prosecutions.

People who have received a target letter or grand jury subpoena, or who have been indicted, may call Serpa Law Office at 617.936.0201 or request a free consultation. Counsel who reviews the matter early has time to address the subpoena or investigation, preserve evidence, and prepare for the Superior Court case.