YETKA, Justice.
Defendants were indicted by Hennepin County grand juries in November 1987 and March 1988. They moved for a dismissal of the indictments due to numerous prose-cutorial errors. The Chief Judge of the Fourth Judicial District appointed a four-judge panel to hear the issues common to all cases. Twenty-two cases were consolidated before the panel, which found numerous errors, but held them all to be harmless and denied defense motions to dismiss the indictments. The panel specifically found that the foreperson of the November grand jury, at the suggestion of the county attorney, contacted a former foreperson about administrative and procedural matters. It certified the following question to this court:
In ruling on a motion to dismiss based upon facts as found in Paragraph 2 [462]*462above [contact with former foreperson], should the Court apply harmless error 'analysis or do these facts constitute error per se mandating dismissal under a fundamental error analysis?
The defendants also petitioned this court for discretionary review and filed a notice of appeal assertedly taken as of right pursuant to State v. Scruggs, 421 N.W.2d 707 (Minn.1988). We find the telephone contact to be harmless error, but hold that the cumulative effect of the March 1988 grand jury errors substantially prejudiced defendants, requiring dismissal of their indictments. We also hold that the Scruggs decision did not create a pretrial appeal as of right from an indictment.
Today’s grand jury has its roots in the English system of courts and justice as it developed in the 12th century.1 Prior to that, law in England and on the continent consisted of the “inquest” or “inquiry” where an official of the king questioned men under oath about local matters in which the king was interested. Under the reign of Henry II, the inquest ceased being an instrument of royal oppression as it had been under the rule of William the Conqueror and became part of the new English legal system. The accusing, or presenting, jury of that time was the foundation for our modern grand jury. Its function “was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.” Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372-73, 50 L.Ed. 652 (1906). See also State v. Iosue, 220 Minn. 283, 293, 19 N.W.2d 735, 740 (1945); State v. Grose, 387 N.W.2d 182, 186 (Minn.App.1986).
The grand jury’s historical function of shielding the accused from the prosecutor and ensuring that a charge was based on credible facts became embodied in American law. The United States Constitution and the original Minnesota Constitution contained the language: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.” U.S. Const. Amend. V See Minn. Const, of 1857, Art. 1, § 7.
As used in the United States, the grand jury has gradually developed another, perhaps unfortunate, function: it protects prosecutors from having to make politically unpopular decisions. When hesitant to prosecute, whether for legal or political reasons, a grand jury indictment will let a prosecutor “off the hook.” Conversely, a prosecutor can use a grand jury’s failure to indict as an excuse not to prosecute. Instead of protecting the accused from the accuser, the grand jury has become a vehicle to shield the county attorney from public opinion.
Our concern is to keep the grand jury as free from taint and improper influence as possible. There is a tendency for prosecutors to view the grand jury as a tool for their own convenience. It is imperative that prosecutors remember that they have the special responsibilities of a minister of justice and not simply those of an advocate. Minnesota Rules of Professional Conduct 3.8 comment (1985).
In recent years, we have become increasingly concerned about prosecutorial misconduct in criminal trials. See, e.g., State v. Merrill, 428 N.W.2d 361 (1988) (prosecutor’s closing argument tactics criticized as “deplorable”). As a result of the prosecutor’s unique relationship with the grand jury, opportunities for influence and manipulation of the process are omnipresent. In State v. Grose, the court of appeals noted that “[t]he prosecutor is the person who draws up the indictment, calls and examines the witnesses, advises the grand jury about the law, and is in constant attendance during its proceedings.” Grose, 387 N.W.2d at 186. Prosecutors, therefore, must exercise extreme caution to ensure that the grand jury retains its independent role in our legal system.
I.
It was apparently routine practice for the Hennepin County Attorney’s office to pro[463]*463vide grand jury forepersons with the names and telephone numbers of previous forepersons so that they, in the words of the county attorney, could “have a chance to chat directly with them about how did they get this thing moving. And what process did they follow [sic].” The foreperson of the March grand jury did not take the county attorney’s suggestion; however, the November foreperson did contact a previous foreperson. The panel found that this unauthorized contact “occurred before any individual’s case was presented to the grand jury, and it did not touch either upon the law or upon the facts of any individual case; it was limited to the ‘nuts and bolts’ of procedure for grand jury deliberation.” State v. Johnson, et al., No. 97101-02 at 13 (Henn. Cty., Sept. 16, 1988) (order and memorandum denying motion to dismiss indictments) [hereinafter Memorandum]. The panel then subjected the contact to a harmless-error analysis and found that it was harmless as a matter of law.
We agree with the district court panel that, by introducing former grand jurors into the grand jury process, the county attorney compromised the integrity of the process itself. The four-judge panel, however, split as to whether prejudice must be shown or whether the November indictments should be dismissed per se. The certified question before us asks us to decide the standard by which to review such a clear error.
Appellants would have us analogize the telephone contact to the presence of an unauthorized person in the grand jury room. In Minnesota, the presence of an unauthorized person during presentation of evidence to the grand jury or during its deliberations or votings taints an indictment and no showing of prejudice is necessary for dismissal. Dwire v. State, 381 N.W.2d 871, 875 (Minn.App.1986). See Minn.Stat. § 628.63; Minn.R.Crim.P. 17.06, subd. 2(1)(f); Minn.R.Crim.P. 18.04. The rationale for this rule was provided by this court long ago:
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YETKA, Justice.
Defendants were indicted by Hennepin County grand juries in November 1987 and March 1988. They moved for a dismissal of the indictments due to numerous prose-cutorial errors. The Chief Judge of the Fourth Judicial District appointed a four-judge panel to hear the issues common to all cases. Twenty-two cases were consolidated before the panel, which found numerous errors, but held them all to be harmless and denied defense motions to dismiss the indictments. The panel specifically found that the foreperson of the November grand jury, at the suggestion of the county attorney, contacted a former foreperson about administrative and procedural matters. It certified the following question to this court:
In ruling on a motion to dismiss based upon facts as found in Paragraph 2 [462]*462above [contact with former foreperson], should the Court apply harmless error 'analysis or do these facts constitute error per se mandating dismissal under a fundamental error analysis?
The defendants also petitioned this court for discretionary review and filed a notice of appeal assertedly taken as of right pursuant to State v. Scruggs, 421 N.W.2d 707 (Minn.1988). We find the telephone contact to be harmless error, but hold that the cumulative effect of the March 1988 grand jury errors substantially prejudiced defendants, requiring dismissal of their indictments. We also hold that the Scruggs decision did not create a pretrial appeal as of right from an indictment.
Today’s grand jury has its roots in the English system of courts and justice as it developed in the 12th century.1 Prior to that, law in England and on the continent consisted of the “inquest” or “inquiry” where an official of the king questioned men under oath about local matters in which the king was interested. Under the reign of Henry II, the inquest ceased being an instrument of royal oppression as it had been under the rule of William the Conqueror and became part of the new English legal system. The accusing, or presenting, jury of that time was the foundation for our modern grand jury. Its function “was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.” Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372-73, 50 L.Ed. 652 (1906). See also State v. Iosue, 220 Minn. 283, 293, 19 N.W.2d 735, 740 (1945); State v. Grose, 387 N.W.2d 182, 186 (Minn.App.1986).
The grand jury’s historical function of shielding the accused from the prosecutor and ensuring that a charge was based on credible facts became embodied in American law. The United States Constitution and the original Minnesota Constitution contained the language: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.” U.S. Const. Amend. V See Minn. Const, of 1857, Art. 1, § 7.
As used in the United States, the grand jury has gradually developed another, perhaps unfortunate, function: it protects prosecutors from having to make politically unpopular decisions. When hesitant to prosecute, whether for legal or political reasons, a grand jury indictment will let a prosecutor “off the hook.” Conversely, a prosecutor can use a grand jury’s failure to indict as an excuse not to prosecute. Instead of protecting the accused from the accuser, the grand jury has become a vehicle to shield the county attorney from public opinion.
Our concern is to keep the grand jury as free from taint and improper influence as possible. There is a tendency for prosecutors to view the grand jury as a tool for their own convenience. It is imperative that prosecutors remember that they have the special responsibilities of a minister of justice and not simply those of an advocate. Minnesota Rules of Professional Conduct 3.8 comment (1985).
In recent years, we have become increasingly concerned about prosecutorial misconduct in criminal trials. See, e.g., State v. Merrill, 428 N.W.2d 361 (1988) (prosecutor’s closing argument tactics criticized as “deplorable”). As a result of the prosecutor’s unique relationship with the grand jury, opportunities for influence and manipulation of the process are omnipresent. In State v. Grose, the court of appeals noted that “[t]he prosecutor is the person who draws up the indictment, calls and examines the witnesses, advises the grand jury about the law, and is in constant attendance during its proceedings.” Grose, 387 N.W.2d at 186. Prosecutors, therefore, must exercise extreme caution to ensure that the grand jury retains its independent role in our legal system.
I.
It was apparently routine practice for the Hennepin County Attorney’s office to pro[463]*463vide grand jury forepersons with the names and telephone numbers of previous forepersons so that they, in the words of the county attorney, could “have a chance to chat directly with them about how did they get this thing moving. And what process did they follow [sic].” The foreperson of the March grand jury did not take the county attorney’s suggestion; however, the November foreperson did contact a previous foreperson. The panel found that this unauthorized contact “occurred before any individual’s case was presented to the grand jury, and it did not touch either upon the law or upon the facts of any individual case; it was limited to the ‘nuts and bolts’ of procedure for grand jury deliberation.” State v. Johnson, et al., No. 97101-02 at 13 (Henn. Cty., Sept. 16, 1988) (order and memorandum denying motion to dismiss indictments) [hereinafter Memorandum]. The panel then subjected the contact to a harmless-error analysis and found that it was harmless as a matter of law.
We agree with the district court panel that, by introducing former grand jurors into the grand jury process, the county attorney compromised the integrity of the process itself. The four-judge panel, however, split as to whether prejudice must be shown or whether the November indictments should be dismissed per se. The certified question before us asks us to decide the standard by which to review such a clear error.
Appellants would have us analogize the telephone contact to the presence of an unauthorized person in the grand jury room. In Minnesota, the presence of an unauthorized person during presentation of evidence to the grand jury or during its deliberations or votings taints an indictment and no showing of prejudice is necessary for dismissal. Dwire v. State, 381 N.W.2d 871, 875 (Minn.App.1986). See Minn.Stat. § 628.63; Minn.R.Crim.P. 17.06, subd. 2(1)(f); Minn.R.Crim.P. 18.04. The rationale for this rule was provided by this court long ago:
The grand jury is supposed to be a fearless and impartial investigator of crime, and to the [sic] more fully accomplish this purpose the law seeks to provide against every influence of outsiders, and specifies that the mere presence of an unauthorized person when a witness testifies, or when the case is discussed, or the vote taken, is fatal to the indictment.
State v. Ernster, 147 Minn. 81, 85, 179 N.W. 640, 642 (1920).
The former foreperson who was contacted was not “present” in the November grand jury room in the literal sense of the word. Because the telephone conversation occurred outside the sanctity of the grand jury and beyond the control of the judge or prosecutor, it was not as inherently prejudicial to the process as the actual presence of an authorized person would be. Nevertheless, the opportunity existed for the former foreperson to influence the proceedings, and that unauthorized contact raises a presumption of prejudice to the defendant.
Minnesota has followed the United States Supreme Court rule of presumptive prejudice with regard to petit juries. In Mattox v. U.S., 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), the Supreme Court declared that “[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Id. at 150, 13 S.Ct. at 53. In Remmer v. U.S., 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the court reinforced this rule and held that any “private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending * * * is, for obvious reasons, deemed presumptively prejudicial.” Id. at 229, 74 S.Ct. at 451. Minnesota adopted this rule in State v. Cox, 322 N.W.2d 555 (Minn.1982). See also State v. Sanders, 376 N.W.2d 196, 205 (Minn.1985). Today, we extend the law to hold that the introduction of former grand jurors into the grand jury process is presumptively prejudicial.
Cox recognized that the presumption of prejudice is rebuttable and examined the nature and source of the prejudicial matter, the number of jurors exposed [464]*464to it, the weight of other evidence before the jury and the effectiveness of any curative measures. Cox, 322 N.W.2d at 559. Likewise, the burden is on the prosecution in this case to prove that the contact between the March foreperson and the former juror was harmless. The prosecution has met its burden by showing, through the deposition of the former foreperson, that the telephone conversation concerned strictly administrative and procedural matters and did not involve the law to be applied or the facts of any cases. The content of the conversation and the fact that it took place prior to the presentment of any cases makes such contact harmless.
II.
We turn next to the March 1988 grand jury process.2 While there was no contact with the previous grand jury foreperson in that proceeding, we must analyze defendants’ other allegations of prosecuto-rial misconduct. Defense counsel cites a total of 26 alleged irregularities in the indictment process. We will not discuss all the complaints, but set forth and concentrate on the four areas where the panel found error, albeit harmless error.
Subversion of Independence of Grand Jury
The panel found four instances where the county attorney subverted the independence of the grand jury:
1.The county attorney said that his office would send squad cars to seek out absent jurors. The panel found:
The county attorney is not by law the overseer of the grand jury. He has no authority, by statute or rule, to seek out missing jurors. The importance of grand jurors’ regular attendance certainly can be conveyed to them without the veiled threat in these remarks. Although we accept the county attorney’s assurance that he intended to be humorous, the comment improperly elevates the county attorney’s rank in the grand jury proceedings over the rank of the jurors themselves, by suggesting a supervisory power that does not reside with the county attorney. It is a misstatement of law, and it is error.
Memorandum at 6-7
2. The county attorney told the grand jury that they should consider the county’s higher office standard of probable cause in deciding whether to indict. The panel found error:
[ I]t is improper for the county attorney to refer the grand jury to his “office standard,” which, whatever it might be, specifically should not affect grand jury ■ decisions. It is of the essence that the grand jury stand between the citizen and the State, that it act independently, and that it not defer to the prosecutor or to any other person or institution that might seek to influence its work.
Id. at 7.
3. The county attorney explained what happens when a first-degree murder charge is not proven at trial. The panel disapproved of this discourse:
[ Because] the grand jury is invited to see itself as part of the prosecutorial function, this time by working with the county attorney so as to avoid a situation where, due to a hypothetical trial judge’s failure to instruct on a lesser charge, a person guilty of a lesser charge goes free.
This excursion into trial strategy is not instruction as to the law which the grand jury should consider in its deliberations. It is error.
Id. at 8.
4. The assistant county attorney referred to the standard of probable cause as a belief that “we have a reasonable likelihood of conviction based upon the most logical defense.” He asked that the grand jury not overwhelm him with charges and [465]*465told them: “We have other obligations and we wish you to come on out as reasonable people and peg it just as close to where it should be as possible.” The panel found:
The phrase “reasonable likelihood of conviction based upon the most logical defense” articulates a standard it is hard to believe anyone but a trial lawyer could apply: how can lay jurors sort out “the most logical defense,” and from what foundation are they to assess “likelihood of conviction?”
The statement, as a whole, implies that the grand jurors are quasi-prosecutors and that they should be considerate of the county attorney’s office. Neither proposition is legally correct. This comment is error.
Id. at 9.
Overall, the panel was troubled by the tone of the prosecutors’ remarks above, but concluded that they were isolated comments, not forceful enough to undermine the institutional independence of the grand jury. It held that the errors were harmless as a matter of law.
Erroneous or Misleading Instructions
The panel found several errors in the county attorney’s instructions as well. In explaining lesser-included offenses to the grand jury, the assistant county attorney misstated the law:
“Every lesser degree of murder is intended by the statute to be characterized as an included offense.” This both oversimplifies (although homicide charges are arranged on a bigger-to-smaller range, not every lesser is included in every greater charge) and over-complicates (how does a lay juror define “included offense,” when judges and lawyers sometimes fail to do so correctly?) the law for the grand jury. This is one more example of a situation where a prepared script would serve to discipline the instructing attorneys. The comment is error, although its difficulty most likely would cause jurors to overlook it, rather than to be influenced by it.
Id. at 25. The panel also found that the prosecutor asked the grand jury at least three times to consider plea negotiations in charging. He framed his discussion in terms of what “we” [the county attorney’s office] need from the grand jury. The panel remarked:
This personal, subjective tone is inappropriate.
As we have stated elsewhere in this memorandum, the grand jury generally should not be instructed to consider how its decision will impact a part of the criminal process that is outside its scope. Certainly, it should not be urged to make a case more agreeable for the prosecution. Both of these errors were committed by the assistant county attorney
Id. The panel found the errors relating to erroneous or misleading instructions to be harmless as a matter of law.
Informational Packet
The county attorney distributed to new jurors an informational packet partially prepared by former grand jury members. The panel held, in general, that incorporating material prepared by lay persons into the informational booklet was error.
Specifically, the panel identified as erroneous the packet’s implications that a suspect will be released if no indictment is returned and that the county attorney can resubmit the case to the grand jury without court permission. The panel also found error because the packet suggested that the grand jury take a straw vote before its final vote as well as participate in plea bargaining. The material also contained a case citation, which the panel found improper to provide to a lay jury and, therefore, in error. The panel concluded that the errors relating to the informational packet were harmless as a matter of law.
Comments on Newspaper Coverage
The county attorney mentioned that the jurors might read about cases to come before them in the newspaper. The panel found that “[i]t was error for the county attorney to refer to newspaper coverage of current homicide cases without strongly discouraging the grand jurors from exposing themselves to media coverage of matters that would come before them.” Mem[466]*466orandum at 33. It also found that the net effect of the county attorney’s comments was to enhance the significance of newspapers, however, it did not find reversible error.
When the panel evaluated the cumulative effect of the numerous errors in the March 1988 grand jury, it still held them to be harmless. We disagree with its conclusion.
Cumulative error exists when the “cumulative effect of the * * * errors and indiscretions, none of which alone might have been enough to tip the scales, operate to the defendant’s prejudice by producing a biased jury.” United States v. Samango, 607 F.2d 877, 884 (9th Cir.1979). In State v. Grose, 387 N.W.2d 182 (Minn.App.1986), the court addressed a plethora of improper comments, misstatements and procedural violations by the prosecutor. In upholding the dismissal of the indictments, the court held that, “[tjaken cumulatively * * * these actions may have improperly influenced the grand jury, preventing it from acting as an independent body.” Id. at 190. The errors in this case, although not of the magnitude in Grose, justify the same result. Threatening members of the grand jury that they could be picked up by police, handing out instructions from previous grand jurors, and giving inaccurate instructions on probable cause and the effect of a failure to indict are the types of errors that seriously undermine the integrity and independence of the grand jury.
Prosecutors must not take advantage of their role as representatives of the state to influence unduly or unfairly a grand jury’s decisions.3 As we concluded in State v. Inthavong, 402 N.W.2d 799 (Minn.1987): “[TJhis is one of those instances where the error is fundamental and the integrity of the grand jury system cannot afford the assumption that the jurors were not misled.” Id. at 803. We thus find that the indictments before us from the 1988 grand jury were not returned as required by law and prejudiced the substantial rights of defendants. Minn.R.Crim.P. 17.06, subd. 2(2)(a). We order representment with regard to the defendants who were indicted by the March 1988 grand jury and remain parties to this appeal.4
It is true, as appellants note, that today’s harmless error can become the standard practice of tomorrow. Thus, while we recognize that dismissing indictments may result in serious ramifications, we know of no other way to preserve the integrity of the judicial process and maintain the independence of the grand jury. With the vast state resources available for the investigation and prosecution of crime, there is no need to disregard the safeguards which took 700 years to develop within the English and American common law systems. The grand jury is not intended to be a tool of the prosecution or the defense. It is an arm of the judiciary and, as such, it shall be used in a fair, impartial and independent manner or not at all. This decision is necessary to protect not only the defendants, but all of us as well.
III.
Appellants filed a notice of appeal pursuant to State v. Scruggs, 421 N.W.2d 707 (Minn.1988). In Scruggs, this court stated:
It flows from this presumption that a criminal defendant bears a heavy burden when seeking to overturn an indictment. This is especially true where, as here, the challenge is brought after appellant has been found guilty beyond a reasonable [467]*467doubt following a fair trial. A more appropriate method of challenging an indictment is an appeal before trial on the merits.
Id. at 717 (emphasis added).
Prior to Scruggs, this court held that an order denying a motion to dismiss an indictment is not appealable. State v. Robinson II, 266 Minn. 574, 123 N.W.2d 694 (1963). Appellants claim that Scruggs created a new pretrial right of appeal from an indictment. In its amicus brief, the state argues conversely that no appeal as of right was created. Under Minn.R.Crim.P. 28.02, subd. 2, a defendant only has an appeal as of right from a final judgment. A party may appeal an order in very few cases and, therefore, usually must file a discretionary appeal if final judgment has not been entered. See Minn.R.Crim.P. 28.02, subd. 3.
This issue is not directly before us today because we chose to grant discretionary review to the appealing defendants. However, because it was raised and briefed by the parties and has apparently caused some confusion in the criminal bar, we will clarify the language in Scruggs. We did not intend to change existing law in Scruggs. Defendants do not have an appeal of right from an order denying the dismissal of an indictment. It is sufficient that, in extraordinary circumstances, the right to a discretionary appeal exists, and the court of appeals should be willing to hear such cases.
Thus, upon discretionary review, we hold that the presumptive prejudice that attached to the telephone contact between the grand jury foreperson and a former person was proven to be harmless beyond a reasonable doubt and affirm the trial court’s refusal to dismiss those indictments. We reverse the trial court with regard to the March 1988 indictments and hold that, under state law, the cumulative effect of the errors substantially prejudiced the rights of defendants by impinging on the independence and integrity of the grand jury system.
SIMONETT, J., dissents.
WAHL, J., concurring in part; dissenting in part.