(concurring, with whom Botsford and Duffly, JJ., join). The grand jury in this case heard substantial evidence that the then sixteen year old defendant stabbed the victim during a fistfight immediately after the victim and his friend told the defendant, who was alone, that they were going to steal his marijuana and then assaulted him to accomplish the theft. I agree with the court that, viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to support a finding of probable cause that the defendant committed murder in the second degree. But the grand jurors were not obligated to view the evidence in the light most favorable to the prosecution; they were entitled to conclude, based on all of the evidence presented by the prosecutor, that the defendant committed the killing in the heat of passion on reasonable provocation or induced by sudden combat and that there was not probable cause to find the defendant committed murder. Yet, the prosecutor did not inform the grand jury that malice is a required element of murder in the second degree, and that a killing committed in the heat of passion on reasonable provocation or induced by sudden combat is committed without malice. Nor did the prosecutor inform the grand jury of the lesser crime of voluntary manslaughter. Instead, the grand jury, apparently unaware of the legal significance of the circumstances of the killing (and of the *837possibility of returning an indictment charging voluntary manslaughter), returned the indictment requested by the prosecutor — murder in the second degree.
I conclude that where, as here, the prosecutor seeks an indictment for murder despite evidence of mitigating circumstances that is so substantial that concealing it would impair the integrity of the grand jury, the prosecutor is required to give the grand jury legal instruction on the elements of murder in the second degree and on the legal significance of the mitigating circumstances. And I believe such instruction is required in these circumstances regardless of whether the person accused is a juvenile or an adult.
Under art. 12 of the Massachusetts Declaration of Rights and G. L. c. 263, § 4, a defendant may not be indicted for a felony unless a grand jury, based on sufficient evidence, find probable cause to believe that the defendant committed the crime charged.1 See Commonwealth v. Moran, 453 Mass. 880, 884-887 (2009); Lataille v. District Court of E. Hampden, 366 Mass. 525, 531-532 (1974); DeGolyer v. Commonwealth, 314 Mass. 626, 632-633 (1943); Commonwealth v. Harris, 231 Mass. 584, 585 (1919). We have long recognized:
“The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.”
Jones v. Robbins, 8 Gray 329, 344 (1857). See generally 4 W.R. LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure *838§ 15.1(a), at 379 (3d ed. 2007) (LaFave) (“shielding role” of grand jury revered in American colonies). And we also have recognized that “[a] grand jury finding of probable cause is necessary if indictments are to fulfil their traditional function as an effective protection ‘against unfounded criminal prosecutions.’ ” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), quoting Lataille v. District Court of E. Hampden, supra at 532.
A grand jury may not indict an individual for an offense unless evidence is presented as to each of its elements. See Commonwealth v. Moran, supra at 884 (“The grand jury must be presented with evidence on each of the three elements . . .”). The elements of murder in the second degree are (1) an unlawful killing and (2) malice, which may be satisfied by evidence of any of the three prongs of malice. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010), citing Model Jury Instructions on Homicide 20 (1999).
As to the first element, there is little question that there was an unlawful killing in this case. Ante at 817-822 (Lenk, J., concurring). As to the second element, a killing is not committed with malice if committed in the heat of passion on reasonable provocation or induced by sudden combat.2 See Model Jury Instructions on Homicide, supra at 29-30 (“If the Commonwealth has not proved beyond a reasonable doubt the absence of heat of passion upon reasonable provocation [or the absence of heat of passion induced by sudden combat], the Commonwealth has not proved malice”). See also Commonwealth v. Whitman, 430 Mass. 746, 751-752 (2000), and cases cited (“In a murder case where evidence has raised the possibility of provocation and voluntary manslaughter may be at issue, proof of malice requires proof of the absence of provocation”). Cf. Commonwealth v. Moran, supra, and cases cited (“The crime of armed assault with intent to murder has three elements: assault; intent to kill; and malice, which in this context means an absence of justification, excuse, or mitigation”). Therefore, where a grand jury conclude that the defendant probably killed in the heat of passion on reasonable *839provocation or induced by sudden combat, and reject the evidence that the defendant probably acted with malice, a grand jury would find no probable cause to believe that the defendant committed murder and should either return a no bill or be given the option of returning an indictment for voluntary manslaughter. Cf. Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998) (where evidence at trial raises possibility that defendant acted on reasonable provocation, in sudden combat, or in self-defense, constitutional due process requires that Commonwealth must prove [and jury must find] absence of mitigating factor beyond reasonable doubt for murder conviction).
Where evidence of mitigating circumstances is withheld from a grand jury for the purpose of obtaining an indictment and where the withholding of such evidence probably influenced the grand jury’s decision to indict, the integrity of the grand jury proceeding is compromised and dismissal without prejudice is required. See Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). A grand jury are entitled to hear such evidence where it is substantial and may be important to their decision whether to indict for murder or voluntary manslaughter. See id.
Evidence of mitigating circumstances, however, is meaningless to a grand jury that have not been provided with the guidance necessary to understand its legal significance. It makes no sense to require a prosecutor to provide the grand jury with evidence of reasonable provocation and sudden combat in a case such as this, where there is strong evidence of both reasonable provocation and sudden combat, but not also to require a prosecutor to instruct the grand jury that malice is an element of murder in the second degree, and that reasonable provocation and sudden combat negate malice, so that grand jurors know of the relevance of such evidence in deciding whether to indict the defendant for murder or voluntary manslaughter.
It also makes no sense for a prosecutor to owe a duty to provide such a legal instruction only where the grand jury know enough about the law of homicide to ask for such an instruction. The law of homicide is too complex reasonably to expect a grand jury to know the legal significance of reasonable provocation or sudden combat without instruction by a prosecutor, or even to recognize that it may be an issue for which they should *840seek legal guidance. In contrast with indictments for some other crimes, an indictment charging murder does not even list the elements of the crime, alleging only that the defendant “did assault and beat” the victim “with intent to murder him . . . and by such assault and beating did . . . murder” the victim. G. L. c. 277, § 79. Therefore, reading the proposed murder indictment would not alert a reasonable juror to the legal significance of a defendant committing the killing in a heat of passion arising from reasonable provocation or sudden combat. Contrast Hamling v. United States, 418 U.S. 87, 117 (1974) (“an indictment is sufficient if it, first, contains the elements of the offense charged”); United States v. Superior Growers Supply, Inc., 982 F.2d 173, 176 (6th Cir. 1992) (“indictment will usually be sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense”).
Under our holding in Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922), a prosecutor owes a duty to instruct a grand jury as to the law “in appropriate instances.” This duty is consistent with our recognition that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” including the responsibility “to see that the defendant is accorded procedural justice.” Comment [1] to Mass. R. Prof. C. 3.8, as amended, 428 Mass. 1305 (1999). It is also consistent with the United States Department of Justice’s understanding of the role of a prosecutor in a Federal grand jury: “The prosecutor’s responsibility is to advise the grand jury on the law and to present evidence for its consideration.” United States Department of Justice, United States Attorneys’ Manual § 9-11.010 (1997). See N.Y. Crim. Proc. § 190.25(6) (McKinney 2007) (“The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source. Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes”). See also State v. Edmonson, 113 Idaho 230, 238 (1987) (“prosecutor is expected to act as the grand jury’s legal advisor”). See generally LaFave, supra at *841§ 15.2(e), at 476 (“The prosecutor serves not only as the state’s advocate in presenting its case to the grand jury, but also as the primary legal advisor to the grand jury”).
I do not believe that a prosecutor should only provide this legal instruction where the grand jury know enough about the law of homicide to ask for such an instruction or where the defendant is a juvenile facing a possible murder indictment. I believe that where, as here, it would impair the integrity of the grand jury if evidence were withheld regarding the circumstances suggesting that the defendant killed in a heat of passion arising from reasonable provocation or sudden combat, it equally impairs the integrity of the grand jury if legal instructions are withheld that would enable them to understand the legal significance of such evidence.
The requirement that the prosecutor provide such legal instruction would not change the role of the grand jury or put any additional burden on them. The grand jury would still be charged with determining whether the prosecutor provided credible evidence establishing probable cause to believe the crime in question was committed. The grand jury may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.3 The grand jury would remain free to find that the reliable evidence of mitigating circumstances is too weak to defeat probable cause and, therefore, return the indictment *842sought. But where the grand jury find that the credible evidence of mitigating circumstances is substantial, and that there is not credible evidence to support a finding of malice, the grand jury should understand that the legal consequence of these findings is that there is probable cause to believe that the defendant committed voluntary manslaughter, not murder in the second degree.
I would limit the “appropriate instances” where such a duty may arise to grand juries considering indictments for murder where the evidence of a legal defense (other than lack of criminal responsibility4) or mitigating circumstances is so strong that, if such evidence were withheld, the integrity of the grand jury would be impaired. Cf. State v. Grose, 387 N.W.2d 182, 189 (Minn. Ct. App. 1986) (“The grand jury should have been properly instructed as to the statute of limitations defense”); State v. Hogan, 336 N.J. Super. 319, 340-343 (App. Div.), cert. denied, 167 N.J. 635 (2001) (prosecutor owes duty to instruct grand jury on possible defenses “only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction”); People v. Valles, 62 N.Y.2d 36, 38-39 (1984) (prosecutor must instruct grand jury on “exculpatory,” but not “mitigating,” defense); id. at 39-41 (Kaye, J., concurring) (prosecutor should also instruct grand jury on mitigating defense where evidence of defense is “clear and pervasive”).5
These “appropriate instances” do not arise often but, when *843they do, they present a substantial due process issue as to the validity of a murder indictment and warrant the court’s attention.6 Limiting the “appropriate instances” to murder indictments also means that a prosecutor will have the benefit of our model homicide instructions in instructing the grand jury, which will need to be adapted to reflect the different standard of proof (probable cause) applied by a grand jury, but once adapted will diminish the risk of an erroneous instruction. The legal instructions need not be as precise as we require where a petit jury are instructed by a trial judge as to the law. See People v. Darby, 75 N.Y.2d 449, 454 (1990). See also State v. Hogan, supra at 344 (prosecutor’s duty is met “as long as the instruction conveys to the grand jury the gist of the exonerating defense or justification . . .”).
This is one of those rare cases where the evidence of reasonable provocation and sudden combat is so strong that the integrity of the grand jury was impaired by the absence of any legal instruction regarding the definition of heat of passion arising from reasonable provocation or sudden combat, the negation of malice where heat of passion is aroused by reasonable provocation or sudden combat, and the alternative of returning an indictment charging voluntary manslaughter if the grand jury were to find that the Commonwealth failed to establish probable cause of malice because the killing was committed in the heat of passion. Without this legal guidance, it is likely that the evidence of reasonable provocation and sudden combat was meaningless to the grand jury; they could not reasonably have been expected to evaluate its significance in deciding whether the evidence *844warranted an indictment charging murder in the second degree rather than voluntary manslaughter. Where, as here, the evidence of reasonable provocation and sudden combat is so strong that the absence of legal instruction regarding their significance probably influenced the jury’s decision to return an indictment of murder in the second degree, I conclude that the integrity of the grand jury was impaired by the prosecutor’s failure to provide the necessary legal guidance, and that due process requires dismissal of the indictment without prejudice.
A defendant in Federal court has the right under the Fifth Amendment to the United States Constitution not to be tried for a felony without first being indicted by a grand jury, but this is one of the few rights in the Bill of Rights that is not incorporated into the Fourteenth Amendment to the United States Constitution and therefore does not apply to State crimes. See Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000). Therefore, I focus solely on the defendant’s rights under art. 12 of the Massachusetts Declaration of Rights and G. L. c. 263, § 4.
A killing is also not committed with malice if excessive force is used in self-defense. Model Jury Instructions on Homicide 30 (1999). I focus on reasonable provocation and sudden combat here, because I believe those are the more compelling mitigating circumstances in this case.
Despite what Justice Spina claims, I agree that, where the Commonwealth has presented credible evidence to support an accusation of murder in the second degree, a grand jury are not “entitled simply to choose between murder and manslaughter,” and an indictment should issue for the highest crime supported by probable cause to arrest. Post at 847 (Spina, J., concurring in part and dissenting in part). I differ with Justice Spina in that I recognize the possibility that the grand jury may reject as unreliable the Commonwealth’s evidence of malice, but accept as more trustworthy the evidence of mitigating circumstances. In contrast to a reviewing court’s evaluation of the sufficiency of the evidence, which views the evidence in the light most favorable to the prosecution, a grand jury need not view the evidence in so favorable a light in deciding probable cause. Where there is substantial evidence of mitigating circumstances, that may mean that the evidence of probable cause is legally sufficient to support an indictment for murder, but that a grand jury may conclude that the credible evidence is insufficient to support a finding of probable cause as to the element of malice. Where they so find, the highest crime supported by probable cause is voluntary manslaughter, not murder.
I recognize that this analysis would not apply where the evidence raises an issue of criminal responsibility, because the prosecutor in a grand jury proceeding is unable to obtain a court order that a suspect submit to a psychiatric examination by a Commonwealth expert regarding his mental condition. See Mass. R. Crim. P. 14 (b) (2), as appearing in 442 Mass. 1518 (2004); Blaisdell v. Commonwealth, 372 Mass. 753, 765-766 (1977). I do not suggest that the Commonwealth is obligated to present the grand jury with evidence that the defendant lacks criminal responsibility or give legal guidance regarding criminal responsibility.
Justice Spina claims that providing legal instruction regarding the circumstances that may mitigate murder to voluntary manslaughter will make the grand jury proceedings “more like a preliminary trial in its complexity.” Post at 848. A prosecutor’s duty to provide a grand jury with these legal instructions, however, arises only where the evidence of mitigating circumstances is so strong that we require that it be presented to the grand jury to preserve the integrity of the grand jury. See Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). In such cases, there is inherently a degree of *843complexity, because it may not be a simple determination whether the Commonwealth has established probable cause on the element of malice. Justice Spina wishes to diminish this complexity by withholding from the grand jury the legal instructions that will enable them to know that a killing is without malice if committed in a heat of passion arising from reasonable provocation or sudden combat. Post at 849. I do not think simplicity is a virtue where it derives from ignorance of the law, especially where knowledge of the law would allow the grand jury to appreciate the complexity of their indictment decision arising from strong evidence of mitigating circumstances.
These due process concerns are particularly salient in this case, as Justice Lenk notes in her concurrence, see ante at 824-828, because the person indicted is a juvenile and the decision whether to charge him with murder or manslaughter has significant repercussions for the type of proceedings and sentences to which he will be exposed.