NJ Supreme Court Rules Temporary Use of Virtual Grand Juries Is Constitutional

In State v. Omar Vega-Larregui (A-33-20/085288) (Decided April 28, 2021), the Supreme Court of New Jersey rejected arguments that the use of virtual grand juries in response to the COVID-19 pandemic runs afoul of the Federal of State Constitution. “This court has utilized technology to preserve, not to undermine, the constitutional right of defendants to a grand jury presentation. The virtual grand jury format—a temporary measure to meet a public health emergency—has not sacrificed any core principle animating the constitutional right to indictment by grand jury,” Justice Barry Albin wrote on behalf of the unanimous court.

Facts of State v. Vega-Larregui

On March 9, 2020, Governor Philip Murphy declared a Public Health Emergency and State of Emergency in response to the COVID-19 pandemic. The Court canceled all new civil and criminal jury trials until further notice on March 12, 2020, and all grand jury sessions and the selection of new grand jury panels on March 17, 2020.

To keep the criminal and civil justice system functioning, by April 24, the Judiciary had turned to technology and conducted more than 12,000 virtual proceedings. The Court established the Working Group on Remote Grand Jury Operations to examine whether, and if so, how, grand jury proceedings could resume in a virtual format while in-person gatherings are suspended because of COVID-19. On May 14, 2020, the Court issued an Order authorizing a virtual grand jury pilot program to begin in Bergen and Mercer Counties. The Order instructed that “[g]rand juries empaneled before March 16, 2020 and still within their term of service may reconvene in a virtual format.” It further directed that the standard grand jury charge would be supplemented by a special charge and an oath of secrecy adapted to the virtual format. The supplemental charge reminds the jurors of the gravity of their obligation and warns that, if they violate their oath of secrecy or any other rule governing the grand jury proceeding, they could be held in contempt and face “serious consequences,” including potential fines and jail time. The May 14 Order also advised that the Judiciary would “provide restricted-use devices (laptops or tablets) and related items” to any grand juror who is “able to participate in virtual proceedings but requires technological support” and would give training to the grand jurors “on the virtual courtroom process.” In June 2020, the Court expanded the two-county grand jury pilot program to include virtual grand jury selections and authorized virtual State Grand Jury proceedings. On July 24, 2020, the Court took the virtual grand jury pilot program statewide. In- person grand jury selection and sessions remain suspended.

In August 2019, defendant Omar Vega-Larregui was arrested and charged with three drug-related offenses and with two disorderly persons charges. On February 13, 2020, a twenty-three-person grand jury panel was selected. The grand jury convened in person for orientation and for three sessions in February and March. Further sessions were canceled due to the pandemic.

On June 18, 2020, the grand jury reconvened in a virtual format. Beforehand, the jury manager inquired of all of the grand jurors whether they had the capacity to fulfill their service in virtual sessions, and five grand jurors were given tablets with internet capacity to ensure their continued service. Judiciary staff then assisted all grand jurors with a Zoom trial run, and the grand jurors received further instructions at an orientation. Over three sessions in June and early July, they heard eight presentations.

On July 9, 2020, the grand jury met for its fourth Zoom session, at which the prosecutor presented defendant’s case. Before each virtual session, the grand jury staff conducted a check-in process with each juror. As part of that process, using their computers or tablets, grand jurors were required to perform a 360-degree scan of their location to assure staff of the privacy of their environment. In addition, at each session, the jurors were administered the supplemental oath of secrecy.

The presentation of the case against defendant included questions asked to confirm whether the jurors had questions or technical issues. After some questions, the grand jurors were asked to raise their hands; after others, a lack of response was treated as agreement. At certain points, people speaking were recorded as “unidentified speakers.” After deliberating, the grand jury indicted defendant on four counts. The grand jury foreperson conducted pre- and post-deliberation technology checks to ensure that the grand jurors had not experienced any technical problems that affected their ability to hear and/or observe the proceedings or their ability to deliberate and vote.

Defendant pleaded not guilty and later moved to dismiss the indictment on the basis that the virtual grand jury presentation did not “adhere to constitutional norms” and that the State failed “to present clearly exculpatory information” during the presentation. More particularly, defendant argued that the New Jersey Supreme Court exceeded its constitutional rulemaking authority by convening a virtual grand jury.

NJ Supreme Court Decision in State v. Vega-Larregui

The New Jersey Supreme Court refused to dismiss the indictment. “We reject the contention that this Court’s authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic violates our State Constitution’s separation of powers,” Justice Albin wrote. The court acknowledged that in individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted. However, because it found no error in the defendant’s case that undermined the integrity of the grand jury proceeding, it concluded that there was no basis for the dismissal of the indictment.

The New Jersey Supreme Court first addressed its constitutional authority to convene virtual grand juries. “The Constitution must operate not just in the best of times, but also in the worst of times,” the court wrote. “The fundamental rights guaranteed by our Constitution have been stress-tested during a civil war, two world wars, and economic depression, and now a once-in-a-century pandemic.”

The court also emphasized that virtual grand juries are not intended to be permanent. “Virtual grand juries are a temporary measure invoked to meet an extraordinary, life-threatening public health crisis,” the court said. “As millions of New Jersey residents continue to receive vaccinations, we look forward in the near future to a return to normalcy and to reopened courthouses—and to grand jurors sitting together in the same room where testimony is taken,” the court said.

The New Jersey Supreme Court went on to reject the argument that virtual grand jury proceedings fail to comply with the essential tenets of the fundamental fairness doctrine. Justice Albin wrote:

This Court has utilized technology to preserve, not to undermine, the constitutional right of defendants to a grand jury presentation. The virtual grand jury format — a temporary measure to meet a public health emergency — has not sacrificed any core principle animating the constitutional right to indictment by grand jury. The selection of grand jurors for a virtual setting is no different than for an in-person setting. Every grand juror who does not have the technical capacity to participate is provided the necessary equipment and training by the Judiciary. Defendant and amici have presented no evidence that those selected for grand jury service in a virtual setting do not represent a cross-section of the community.

The court did acknowledge that errors sometimes will occur in some court proceedings, including in a grand jury presentation, whether in the in-person or virtual format. “In individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted,” the court wrote.

Turning to the defendant’s grand jury proceedings, the New Jersey Supreme Court concluded that viewed in its entirety, the proceeding did not violate the fundamental fairness doctrine or defendant’s constitutional right to a fair grand jury presentation. “Our review of the grand jury transcript leads us to conclude that, viewed in its entirety, the proceeding did not violate the fundamental fairness doctrine or defendant’s constitutional right to a fair grand jury presentation,” Justice Albin wrote. “We nonetheless recognize that some simple steps can be taken to further safeguard and inspire confidence in the integrity of virtual grand jury proceedings.”

The New Jersey Supreme Court specifically advised that to remove any doubt about a virtual grand juror’s response to a question, the prosecutor should require a clear indication for the record, such as an audible response or a showing of hands. In addition, going forward, all persons speaking on the record should identify themselves or be identified.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.