Virtual Grand Juries are a Huge Mistake

Virtual Injustice 

New Jersey has started to use virtual grand juries.  It’s a huge mistake.

Since the onset of COVID-19 there has been growing tension in the Criminal Justice System.  On one hand it is unsafe for groups of people to be physically present in a confined space.  This has made jury trials impossible.  On the other hand, a “pause” of the criminal justice system is untenable.  Victims of crime and defendants are denied their day in court.  Some defendants who have asserted their innocence and exercised their Constitutional Right to a trial by jury remain indefinitely incarcerated in County Jail with no end in sight.  It is a problem with no easy solution.

Robert M. Perry, Esquire Headshot

In the last two months the New Jersey Judiciary has endorsed and forced the Grand Jury process to proceed by video over the internet.  It is a mistake of epic proportions that is fraught with serious risks to due process and may open the door for a system wherein jury trials are conducted the same way.

This may not matter to you.  Most people don’t pay attention to issues in the criminal justice system until it impacts them personally and most people don’t ever plan to enter the criminal justice system.  Until they do.  Regardless, this is an issue that should petrify every citizen because it threatens the rights and safety of both defendants and law enforcement.

What Is The Grand Jury?

The Grand Jury is not the jury you see on TV.  It is not 12 people hearing testimony and arguments from lawyers and deciding on a verdict of guilty or not guilty.  The Grand Jury in New Jersey is a charging body.

After a defendant is charged by the police, but before their case formally enters the court system, the charges must be indicted by a Grand Jury.  This process is required by the New Jersey State Constitution.  In theory, the Grand Jury’s purpose is to ensure that some evidence of guilt exists before a person is subjected to an allegation in court.

Here’s the way it works in New Jersey:  at least 12 but not more than 23 citizens are selected for a Grand Jury the same way trial juries are selected.  They are randomly selected from public records and summoned to appear in court.  If chosen, the jurors are not assigned to one case.  They typically serve for no longer than 20 weeks and usually hear cases one day a week.  Each day they are “presented” cases by the County Prosecutor’s Office.  A presentment is not a trial.  It is a secret proceeding with only the Grand Jury, prosecutor and a judiciary employee who records the proceedings.  A defendant is almost never present unless the prosecutor allows them to testify and a defense attorney or Judge is not present.

The proceeding is brief and summary.  A prosecutor will instruct the Grand Jury on the relevant law.  The prosecutor will then call any witnesses (usually just one).  There are no rules of evidence.  The prosecutor can ask leading questions.  Hearsay is admissible.  The Grand Jurors can ask the witness questions.  There is no cross-examination.  If 12 of the Grand Jurors believe that there is probable cause (a well-grounded suspicion) that the defendant committed the crimes alleged, the defendant is charged in an Indictment, which is just a charging document similar to a criminal complaint.  The case can then proceed formally enter the court system.

What Have The Courts Been Doing Since COVID-19?

Almost immediately following the outbreak of COVID-19 the New Jersey Supreme Court ordered that all Grand Juries and Jury trials be suspended.  Nevertheless, the system has not completely grinded to a halt.  Courts have continued to function virtually utilizing Zoom and other applications over the internet.

For the vast majority of cases this system works (albeit imperfectly).  Over 90% of criminal cases end by way of a plea bargain, meaning that a defendant pleads guilty to some or all of the charges in exchange for a recommended sentence from the prosecutor.  Plea bargaining and even sentences that do not require incarceration have taken place virtually with little issue.  Attorneys can still counsel their clients.  Our firm has conducted countless video conferences with clients wherein we have reviewed evidence, discussed legal options and evaluated cases.  The County Jails have freely permitted telephone and even video conferences with clients who are incarcerated.  Of course, it is preferable that all this take place in person.  But given the public health risks this system is likely the next best thing and only comes with minimal difference from a pre-COVID world.

Virtual Grand Juries

So what happens to the cases that don’t resolve by way of plea bargain and proceed to a trial by jury?  Right now – nothing…

Normally defendants who are incarcerated pre-trial in a County Jail are entitled to a speedy trial.  In New Jersey that means that the prosecutor has 90 days to present their case to the Grand Jury and then 180 days to bring the case to trial.  If these timelines are not met the defendant is released but the charges still stand.

However, post-Covid there was no Grand Jury for the prosecutor to present the case within the 90-day requirement.  And even if a case was indicted there are no trial juries.  Almost immediately after the outbreak the Supreme Court suspended the speedy trial deadlines.  As a result, there are defendants being held in County Jail who have asserted their innocence, and in fact are presumed innocent, but are being detained indefinitely with no end in sight.

Defendants argue this is unfair because they are being denied a speedy trial.  Prosecutors argue that defendants who are detained represent either a flight risk or a serious danger to the public.

In an attempt to solve part of this problem, on May 14, 2020, the Courts announced two pilot programs in Mercer and Bergen Counties wherein virtual grand juries would be employed.  Importantly, the program stipulated that only defendants who consented to their cases being presented to a virtual grand jury would have their cases considered.

And then the predictable happened.  Not one defendant consented.

On June 10, 2020, the Courts announced a second pilot program.  This one eliminated the requirement of a defendant’s consent. Both versions of the program have been condemned by the Association of Criminal Defense Lawyers as well as the County Prosecutor’s Association of New Jersey.

Why Virtual Grand Juries Are a Horrible Idea

So what’s the problem?  If the technology exists to have 23 grand jurors hear testimony over Zoom and vote on cases, doesn’t this help solve part of the COVID-19 problem in the criminal justice system?

No.  It doesn’t solve anything.

First of all, virtually indicting a case solves nothing.  If a defendant is incarcerated and his or her case is indicted they are still incarcerated with no prospect for a jury trial.  For victims of crime, nothing has changed in the case.  The natural “end game” of a criminal case that cannot be resolved is a jury trial and right now there is no solution for that problem.  The fact that a case has been indicted by a Grand Jury doesn’t help.

It may not be secret and that’s more serious than you think.

The Grand Jury process is secret.  Private and sensitive information is disclosed in certain cases.  For example, sometimes an undercover officer must testify before a Grand Jury.  Normally, the testimony is in a contained setting where the secrecy requirements are safeguarded.  Virtually, though, there is no safeguard.  What there are family or friends in the same residence as one of the Grand Jurors and they overhear testimony?  Those people are unknown and unrecorded.  What if a Grand Jury presentation is secretly recorded and then disseminated on Youtube?  In the case of an undercover officer this could be the difference between life and death.  Also, if the proceeding was secretly recorded this compromises the identity of the grand jurors themselves.

Virtual Grand Juries may eliminate certain people from serving on the jury.

I’m not the most technically savvy person on earth.  Certainly less so than my middle school aged kids.  But I can figure out how to work a video conference.  What about people who can’t navigate that process due to lack of technical knowledge?  What about people who do not have access to reliable internet or a device that supports video conferencing?  Some people live alone and some people live in a house filled with ten people, presenting a secrecy risk.  These issues may disproportionately impact the elderly and jurors of a lower socio-economic background.  Any jury should be a cross section of the population and that simply may not be possible under these circumstances.

There’s no guarantee that an accurate record can be kept.

All Grand Juries are recorded and can be transcribed at a later date.  This serves an important purpose.  For defendants, the testimony presented in a Grand Jury is taken under oath and may be used to impeach a witness if they testify inconsistently at a jury trial.  The Grand Jury can also serve as notice to a defendant of the evidence that the State will rely upon at trial.  Obtaining a transcript from a video recording can be difficult and sometimes impossible for certain portions of the proceeding.

How do we know if the Grand Jurors are paying attention?

I’ll admit it.  There have been a few video conferences where I have played on my phone or checked my email.  I’m not sorry.  Some video conferences are really boring and most lawyers talk way too much.

In a Grand Jury setting, someone’s future and/or freedom may be at stake depending upon the outcome of the proceeding.  I would hope that the vast majority of jurors take their role seriously, but there is no meaningful way to ensure that the Grand Jurors are actually listening to the testimony.

The prosecutors are against it as well.

County Prosecutors Offices across the State have almost uniformly objected to virtual grand juries.  Recently, a prosecutor appealed a Judge’s insistence that a relatively minor criminal charge proceed by video and won.  It is worth noting that both defendants and prosecutors are on the same side in objecting to virtual grand juries.

It may be a slippery slope leading to virtual jury trials.  That would be catastrophic.  

One of the biggest fears about virtual Grand Juries is that it may lead to virtual jury trials.  Where to begin…

All defendants have a Constitutional Right to confront their accusers.  Cross examination in a virtual context would be a disaster.  How do we know if the witness has notes to help them testify?  How do we know there isn’t another person in the room with the witness assisting them?

Also, how is a jury supposed to judge the credibility of a witness over video if they can’t observe their body language?  We all make credibility decisions every day when we talk to people.  Sometimes we form an opinion on a person’s trustworthiness by what they say or how they say it.  Sometimes we look for non-verbal clues that would be absent over a video conference.  Finally, all the same issues with Grand Juries still exist including the composition of the jury, safeguards to guarantee they are listening to the testimony and the accuracy of a trial record.

The stakes are too high to take shortcuts with Constitutional Rights.

This Is Serious And We Need To Take It Seriously

If you or someone close to you isn’t charged with a crime right now you may not care about these issues.  I’ve represented too many teachers, doctors, managers and business owners who never thought about the problems in the criminal justice system until they were accused of a crime.

There are serious issues with any testimonial proceeding being conducted virtually.  The Judiciary’s attempt to use virtual Grand Juries may be well intentioned but it solves no problems, creates safety risks and deprives defendants of Constitutional Rights.  There may be a solution to these issues.  A virtual grand jury isn’t it.

Robert M. Perry is a defense attorney and former Assistant County Prosecutor. Mr. Perry is Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney and is the head of criminal litigation at Rosenberg Perry & Associates, LLC. If you are someone you know has questions about virtual Grand Jury, criminal charges, domestic violence, DUI/DWI or any other area of criminal law, contact Rosenberg Perry & Associates, LLC.