Jury Trials Are Set to Resume, But Questions of Fairness Remain
Article written by Stephen J. Bodnar, Esq
The first criminal trial to utilize a hybrid procedure of virtual jury selection with a socially distanced in person trial is taking place in Bergen County. A challenge to the virtual selection of the jury panel has been denied by the Appellate Division.
In March 2020, as a result of the COVID-19 pandemic, all jury trials in New Jersey were discontinued. In addition to causing a significant disruption to the administration of justice, more than 2,500 indicted persons are being detained in New Jersey jails awaiting trial. These pretrial detainees face the consequence of indefinite detention while the criminal justice system gets back on track and they can proceed to trial.
After being suspended for more than six (6) months, criminal jury trials have resumed. Under new announced procedures, jury selection, which has always been done in open court in front of a judge, prosecutor, defense attorney, and the individual charged, is being done virtually through laptops, smartphones, and other devices that have an Internet connection and web camera. The new procedures employing “virtual jury selection” were recently challenged in the Bergen County case. The Appellate Division ruling has paved the way for criminal jury trials to continue in New Jersey.
In State v. Dangcil, the defendant filed an Order to Show Cause during jury selection seeking to postpone the trial and challenge the jury array. Defense counsel contended that the selection process was non-random, lacked transparency, and limited demographic groups from participating. It was argued that while the procedural safeguards may protect the health and safety of jurors, attorneys, parties, and court users, they fail to ensure a fair trial by ensuring that the juror pool is not deficient and represents a cross-section of the community.
The Appellate Division rejected the arguments regarding procedural fairness, and affirmed that that juries may be selected and criminal trials conducted through a hybrid process employing virtual video jury selection, and socially distanced in-person trials. The ruling paves the way for the resumption of jury trial throughout New Jersey.
As noted in the Appellate Division decision, impartial juries are paramount to dispensing justice. While the ruling permits virtual jury selection and for criminal jury trials to continue, it is likely that further challenges will be made to ensure that procedural safeguards are in place to ensure that defendants receive a fair trial.
All told, the COVID-19 pandemic has caused the following problem for New Jersey Courts: The longer jury trials are postponed, the greater to backlog of cases and backlog of defendants being held without bail. This challenge has resulted in some positive changes. Courts have become more open to innovation and technology. Video court appearances are now not only acceptable but are the norm. E-signatures are also becoming more common in the criminal courts. While the pandemic has caused the Courts to move ahead with technology, it has also led to negative changes such as the violation of individual rights. By way of example, defendants who are scheduled to be released from jail are being detained without the possibility of release while their trials are delayed. Restraining Order defendants are being forced to proceed with hearings via zoom, without the benefit of in–person cross examination. Grand Juries are being selected virtually, which is a huge mistake.
The Courts appear to be in a “too big to fail” scenario, which is resulting in legal decisions and procedural adjustments that trample over litigants’ rights so that cases may proceed. This is, unfortunately, our new reality.
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