Justice Albin continued in relevant part: In August 2019, defendant was arrested and charged with three drug-related offenses and with two disorderly persons charges. A Superior Court judge placed defendant on pretrial release. 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 Court reviews in detail the presentation of the case against defendant, including 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.
A common scenario before grand juries involves a prosecutor putting forth a long and complicated presentation in which grand jurors are prohibited from taking notes. At the conclusion of the presentation, the prosecutor asks the group of lay people who, like most people, are apprehensive to speak in front of strangers, if they have any questions. This is followed by the prosecutor stating that the record should reflect that no hands are raised. This charade ignores the fact that the average person is incapable of articulating their question or questions under the circumstances.