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 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. It is not a finding of guilt. It 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, except where the offense is within the concurrent jurisdiction of the District Court and the Superior Court and the District Court retains it. That right may be waived. M.G.L. c. 263, § 4A.

The Fifth Amendment guarantees grand jury indictment in federal felony prosecutions, and that guarantee has never been applied to the states. Hurtado v. California, 110 U.S. 516 (1884). In Massachusetts the right 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), and Jones v. Robbins, 74 Mass. 329 (1857), and 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). The practical effect is that any defendant facing a Massachusetts Superior Court prosecution for murder, rape, armed robbery, drug trafficking, or another serious felony will have been indicted by a grand jury before the case is in that court.

How Cases Come Before the Superior Court

Direct Indictment

In the most serious 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. If at least twelve grand jurors vote to indict, the grand jury returns a true bill. 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. When the grand jury returns a true bill, the District Court case is transferred to Superior Court. The CORI entry created at the District Court arraignment remains on the record.

A transferred case lets the defense 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. That material previews the grand jury presentation and the anticipated trial evidence, and defense counsel who studies it early begins preparing well before the Superior Court schedule requires it.

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. An indictment makes a state prison sentence legally available 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 forum decides what sentence is available. 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, over all felonies punishable by imprisonment in the state prison for not more than five years, and over a list of specific offenses the statute names. A court holding such a case may keep it and dispose of it, or may bind the defendant over to the Superior Court. What it cannot do is 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 rules that decide where a felony can be heard, and what sentence each court can impose, are set out in full on the firm’s page on the Massachusetts District Courts.

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, and the rule permits the court to select not more than twenty-three, 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, and an indictment may be found only on the concurrence of twelve or more. Mass. R. Crim. P. 5(e).

If fewer than twelve vote to indict, the grand jury returns a no bill and no indictment issues on that charge. Each such case is endorsed “no bill” and filed with the court on a daily return, and 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, and in each case 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. It hears many cases across its term, and 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, and 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 rest entirely on hearsay, and it will not be dismissed on that ground. 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). That rule has limits. Where exculpatory evidence would greatly undermine the credibility of an important witness, or would likely affect the grand jury’s decision to indict, the prosecutor should place it before the grand jury. And 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. It decides only whether enough evidence exists to formally charge the defendant and bring the case to trial.

Because the probable cause standard is low and the proceeding is one-sided, most grand jury presentations result in indictments. A no bill, meaning a grand jury’s refusal to indict, is relatively rare. When it occurs, it typically reflects a significant evidentiary problem with the case, a grand jury’s assessment that the complaining witness lacks credibility, or a witness whose account undercut 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, and a judge may order an indictment kept secret until after arrest. The rule 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, including 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 are among the most valuable discovery materials in a Superior Court prosecution. They identify every witness who appeared before the grand jury and preserve that testimony word for word. They list the exhibits presented. They expose inconsistencies between grand jury testimony and anticipated trial testimony. They 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

Before a grand jury votes to indict, a person who is the target of a grand jury investigation may receive a target letter from the DA’s Office. 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. It 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. That decision 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). The absence of a letter is therefore not assurance of anything.

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. If the prosecutor subpoenas a target, however, the target must appear and may assert the privilege against self-incrimination in response to particular questions.

Where the opportunity is offered or granted, testifying creates serious risk because the prosecutor controls the questioning and the testimony is recorded. The target should make that decision only after consulting counsel and reviewing the available information about the investigation.

Grand jury testimony is given under oath and recorded. Before a target requests an opportunity to testify, counsel should compare the proposed account with the available evidence, prior statements, and likely questions. 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. That 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, and a witness can refuse to answer questions if the answers would tend to incriminate them. The invocation must be specific. The witness must assert the privilege question by question rather than as a blanket refusal to testify.

A grand jury witness who believes they may be a target, even without receiving a target letter, should retain defense counsel before appearing. The line between witness and target is frequently unclear, no warning is required, and a witness who appears without counsel and answers questions freely may supply the evidence needed to indict them.

Grand Jury Subpoenas for Documents

A grand jury can also issue subpoenas for documents. Business records, financial records, phone records, emails, and other documentary evidence are all within its power. 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, when they seek privileged materials such as attorney-client communications or documents shielded by the Fifth Amendment act-of-production privilege, or when they are issued in bad faith.

The act-of-production doctrine, established in United States v. Hubbell, 530 U.S. 27 (2000), provides Fifth Amendment protection 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. When those facts are not a foregone conclusion already known to the government, the act of production is testimonial and the Fifth Amendment protects it. See Your Right to Remain Silent in Massachusetts and Your Fifth Amendment Right to Refuse a Passcode in Massachusetts.

Resolving the Case Before Indictment

The investigation stage may provide an opportunity to prevent an indictment or resolve a 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.

While a case remains in a District Court or the Boston Municipal Court, state prison is not an available sentence because those courts have no authority to impose one. M.G.L. c. 218, § 27; Commonwealth v. Lightfoot, 391 Mass. 718 (1984). That limit governs the sentence, not the charge. A felony prosecuted in District Court remains a felony, and the Commonwealth may still seek an indictment and move the case to Superior Court. A resolution 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, and the grand jury’s failure to hear any evidence of criminal activity by the defendant justifies dismissal of the indictment. Outside that 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. It is a legal challenge to whether the presentation contained evidence of the defendant’s criminal activity at all.

A McCarthy motion may apply when the presentation contains no evidence connecting the defendant to the offense, an essential element has no evidentiary support, or 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, and the knowing use by the Commonwealth or one of its agents of false testimony 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.

Commonwealth v. Mayfield, 398 Mass. 615 (1986), sets the standard the motion 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, that it was presented for the purpose of obtaining an indictment, and that it 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 such a motion 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, 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.

The bar is high, and not every error or impropriety before a grand jury warrants dismissal. Defense counsel therefore examines the grand jury minutes, which now include the legal instructions given, for overreach, misleading characterizations of testimony, and misstatements of law. Where the motion succeeds, dismissal is ordinarily without prejudice and the Commonwealth may 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. Where the indictment charges the offense on a specific date and at a specific location and the trial evidence does not support those specifics, a variance motion challenges whether the defendant received adequate notice of the charge. The constitutional concern behind the motion is real: 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 and decides bail or conditions of release. 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 matters outside the criminal case. 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 the disposition and current sealing law determine who may later access it.

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. Early review gives counsel time to address the subpoena or investigation, preserve evidence, and prepare for the Superior Court case.