What Is A Motion to Remand?

A Motion to Remand is sort of a shorthanded way to say Motion to Remand back to the Grand Jury. So, we’re not talking about a Motion to Remand unless you’ve been indicted by the Grand Jury. A Grand Jury is generally 12 citizens, who listen to the evidence in a private, secret kind of a setting where there is no defendant, no defense attorney, and no judge. Yeah, you heard that right.

The Grand Jury listens to the evidence as presented by the prosecutor, and a police officer generally, and the only other person in the room is a court reporter. They then present what they believe is to be the evidence. They are supposed to present it in a way that is fair and unbiased to both sides. The court reporter then makes a transcript, and if at least nine members of the Grand Jury choose to indict, which means that they found probable cause to charge the defendant with a crime, then they return an indictment.

Well, rule 12.9 of the Arizona Rules of Criminal Procedure, basically says, if the defense attorney, after reviewing the transcript of what happened at the Grand Jury, makes an argument that the evidence was presented in a manner that was unfair, in essence, it violated Due Process; then the remedy for that is for the defense attorney (and there is a very tight window to do this, you only get 25-days from the arraignment or when the Grand Jury transcript is actually filed by the court reporter, that’s it, you get 25-days unless that time limit is extended, and it can only be extended if a Motion to Extend is filed within that time window) would file the motion to remand.

That Motion to Remand and this is a very important point, cannot argue that the evidence was insufficient for the indictment, that there was not enough evidence if you argue that, you lose. What the defense attorney could successfully argue is that the way it was presented was unfair. So, if the prosecutor either presented it in a way that didn’t lay out what Arizona Law was or left out some clearly exculpatory information, which is information that tends to show the defendant really didn’t commit the crime. Then it’s an unfair presentation, and the judge would then grant a Motion to Remand, and send it all back to the Grand Jury, in essence saying to the prosecutor, “do it right this time.”

Now, if you think that you might be under investigation by a Grand Jury, one thing that could be important to do, is to contact a criminal defense lawyer immediately, because we routinely send letters to the prosecutor saying, “Hey, just want o to let you know, here is a bunch of clearly exculpatory information. Information that tends to show, my client didn’t commit the crime, and we are requesting that you present that to the Grand Jury. Hopefully, to convince them not to indict.

But, if the prosecutor then fails to present that clearly exculpatory evidence to the Grand Jury in that secret proceeding, a Motion to Remand is the proper vehicle to send it back to the Grand Jury and really tell them, “do it right.” Again, this is sort of a complex area, and if you think you are either under investigation by a Grand Jury or you’ve just been indicted, remember you have that short window of time. It really makes sense to get in very quickly to visit with a competent criminal defense lawyer who can take a look at that transcript and make a decision about whether a Motion to Remand under our rules 12.9 would be appropriate.