Juries and Representative Cross Sections (Part 5)

Justice Solomon continued in relevant part: In State v. Vega-Larregui, the Court considered whether the right to a fair grand jury is violated by a virtual format allegedly limiting the participation of racial minorities, older citizens, and those of modest means. See 246 N.J. 94, 117 (2021). The Court rejected the defendant’s representative-cross-section claim, citing a lack of substantiation, similar pre- and post-pandemic practices, and attestation that the number of potential grand jurors available was “not significantly different” than pre-pandemic.

The Court also concluded that the virtual process likely increased the participation of members of vulnerable demographic groups. Here, the processes challenged — pre-voir dire excusals and deferrals — were in place pre-pandemic, and defendant’s opposition to the hybrid selection process is actually a challenge to long-standing procedures now presented through the “prism” of the COVID-19 crisis.

A criminal defendant’s right to be fairly tried by an impartial jury is protected by both the Federal and the State Constitutions. Under the latter, defendants have “the right to trial by a jury drawn from a representative cross-section of the community.” State v. Andujar, ___ N.J. ___, ___ (2021) (slip op. at 26-27). To challenge whether a jury pool was drawn from a representative cross-section of the community, a defendant is required to “(1) identify a constitutionally-cognizable group . . .; (2) prove substantial underrepresentation over a significant period of time; and (3) show discriminatory purpose.” State v. Dixon, 125 N.J. 223, 232 (1991). Underlying the Court’s opinion was an awareness that the defense bar has been raising the lack of speedy trials as a key issue since the start of the pandemic and suspension of jury trials. This awareness was almost certainly discussed by members if the unanimous Court in issuing its opinion. The Court uses terms like “similar” and “not significantly different” as a means to gloss over some of the stronger points raised by the defense.