The New Jersey Supreme Court continued in relevant part: Here, in authorizing grand juries to operate in a virtual format for a temporary period during an unprecedented public health emergency, the Court is exercising a quintessential judicial power that is not in any way in conflict with legislative enactments concerning the grand jury. Where a grand jury convenes is a matter of procedure; internet access and technological know-how are not qualifications for jury service, see N.J.S.A. 2B:20-1, in light of the Judiciary’s provision of internet access, equipment, and technological support to the jurors.
Defendant and his supporting amici allege that the very nature of a virtual grand jury session is incompatible with the secrecy requirements mandated by Rule 3:6-7 and N.J.S.A. 2B:21-3. But one of the foundations of our jury system is that the jury is presumed to follow the trial court’s instructions. Grand jurors are given repeated reminders about the sanctity of the proceedings and serious penalties they would face for a violation of their oath of secrecy, and Judiciary staff monitor compliance. Defendant and amici have set forth no basis for concluding that virtual grand jurors are less trustworthy than other jurors.
To establish a prima facie claim that the grand jury selection process violated the faircross-section requirement or the right to equal protection, a defendant must show substantial underrepresentation of a constitutionally cognizable group. Defendant and amici have provided no evidence that the grand jury in this case did not represent a fair cross-section of the community. Not only has the selection process remained largely unchanged, but the grand jurors here were selected when in-person grand juries were still in session. Had the Court not followed health-safety protocols and kept in place inperson grand juries during the pandemic, it is not likely that vulnerable populations, such as the elderly and those with underlying conditions, would have appeared for service at the risk of their lives. In-person grand juries — not virtual grand juries — would have likely caused the underrepresentation decried here. New Jersey has not been alone in crafting temporary remedies — consistent with constitutional rights — to keep the criminal justice system moving as new cases mount and old cases stagnate; five of the seventeen other states with grand juries have acted likewise.
It is surprising to learn that about one half of the 50 states do not use grand juries. With the extreme backlog of cases caused by the pandemic, it would not be surprising if a bill or constitutional to abolish grand juries is proposed in order to streamline the criminal justice process in New Jersey.
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