Virtual Grand Juries (Part 4)

The New Jersey Supreme Court continued in relevant part: 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 this Court exceeded its constitutional rulemaking authority by convening a virtual grand jury. On January 13, 2021, in accordance with Rule 2:12-1, this Court certified directly for its review only defendant’s constitutional challenge to the grand jury presentation in the virtual format.

The Court has the constitutional authority to make rules and procedures for all courts of this state, including the grand jury; the Court’s authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic does not violate the State Constitution’s separation of powers. There is no support for the facial constitutional challenge to the temporary use of the virtual grand jury during the current public health crisis, and virtual grand jury proceedings do not facially violate the fundamental fairness doctrine. In individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted. But in this case, no error undermined the integrity of the grand jury proceeding; nor is there a basis for the dismissal of the indictment.

Part of the argument that the defense likely made is that all major stakeholders were opposed to the use of the virtual grand jury system. That included the county prosecutors’ association. Two county prosecutor offices refused to use a virtual grand jury system even after it was approved.