Defense attorneys for Aaron Hernandez appeared before the Fall River superior court on Monday to ask the court to dismiss the murder indictment against Hernandez. The defense attorneys premised their motion to dismiss on the argument that the prosecutors injected unfair prejudice into the grand jury proceeding to bias the grand jury against Hernandez without meeting their burden of proof to establish probable cause. From the perspective of a Massachusetts criminal defense attorney, this is a common motion filed by defense lawyers.

According to one of the defense attorneys, the prosecutors presented highly harmful and irrelevant evidence before the grand jury in 2013 to portray Hernandez as a violent individual who does not abide by the law. In doing so, argued the defense attorney, the prosecutors predisposed the grand jury against Hernandez without truly establishing probable cause to charge Hernandez with the murder of Odin Lloyd. The underlying premise is that in predisposing the grand jury against a defendant, the defendant is deprived of his constitutional right to due process of law. My Fox Boston reported on the motion to dismiss and had video footage of the argument.

Hernandez’s defense attorneys have a very heavy burden to meet in order to succeed on this motion. Courts will not generally look into the validity or quality of the evidence presented to a grand jury. A court will only review a grand jury indictment if there is insufficient evidence to support a finding by the grand jury that the defendant likely committed the alleged offense, or if the defendant argues that the prosecutor has impaired the integrity of the grand jury proceeding. See Commonwealth v. Freeman, 407 Mass. 279 (1990), This second claim is the one raised by the prosecutors in the Hernandez matter, and it essentially alleges that there was prosecutorial misconduct at the time of the grand jury proceeding.

In order to succeed on their motion, the defense attorneys needed to demonstrate that the prosecutor actually presented to the grand jury false or misleading testimony, which the prosecutor knew or should have known was false or misleading, and nonetheless used this evidence to obtain an indictment. Furthermore, there has to be some probability that the prosecutor’s deception or misconduct actually influenced the grand jury’s determination. See Commonwealth v. Richardson, 37 Mass. App. Ct. 482 (1994).

In the case of Hernandez, the prosecutor argued that there was sufficient evidence presented to the grand jury to not only establish that Hernandez was with Lloyd on the night of the murder, but was also the murderer. The prosecutor alleged he presented ample evidence to establish modus operandi or a pattern of violent behavior that Hernandez exhibits following night club fights, linking his murder of Lloyd to other violent acts committed by Hernandez on similar nights. The judge took the motion under advisement. The motion is likely to be denied by the judge.