Justice Albin concluded with the following in relevant part: That New Jersey used a pilot program to ensure the efficacy of virtual grand juries did not create an impermissible classification and advanced a legitimate constitutional objective, thus satisfying the rational-basis test for such a program. Virtual grand jury proceedings comply with the essential tenets of the fundamental fairness doctrine. Defendant and amici point out the various technological problems that can arise during a virtual grand jury proceeding — or any virtual proceeding for that matter — and claim that a virtual proceeding “does not capture all of the cues so vital to judging credibility.” But grand jurors are extensively trained to participate in virtual grand jury sessions and advised to report technical problems to Judiciary staff. And Judiciary staff and prosecutors patrol and monitor the virtual grand proceedings to detect and correct technological issues.
As to credibility determinations, judges make them in remote proceedings in many contested matters, and the grand jury process is not a minitrial where issues related to credibility are decided. Because the virtual process may not be perfect does not mean that it is not mostly effective or unconstitutional. Certainly, technological glitches or defects will require individually tailored solutions. A defendant will not be without a remedy if such problems render grand jurors not present or informed about the evidence during a virtual session.
Turning to the virtual grand jury proceeding in this case, a review of the transcript leads the Court to conclude that, viewed in its entirety, the proceeding did not violate the fundamental fairness doctrine or defendant’s constitutional right to a fair grand jury presentation. At times, as in typical in-person grand jury presentations, the prosecutor relied on silence as an answer. That was offset here by the training the jurors received, the monitoring by Judiciary staff, and the foreperson’s pre-deliberation check. But in the future, to remove any doubt about a virtual grand juror’s response to a question, the prosecutor should require a clear indication for the record, such as an audible response or a showing of hands. As to comments by an “unidentified speaker” about whether the jurors could see the indictment, the record, the jurors’ experience, and the foreperson’s post-vote technology check refute the contention that those comments reveal that the jury could not see the indictment. Nevertheless, going forward all persons speaking on the record should identify themselves or be identified. Everyone participating in the virtual grand jury process should remember that the record must clearly reflect who is speaking and the responses to any questions. All in all, defendant received a grand jury hearing that comported with basic tenets of fundamental fairness and the constitutional right to a fair grand jury presentation.
Virtual grand juries are a temporary measure invoked to meet an extraordinary, lifethreatening public health crisis, and the Court reviews relevant statistics. The motion to dismiss the indictment is denied, and the matter is remanded to the trial court.
If this case is appealed to the Supreme Court of the United States, it will have to be based on the federal constitution. That is because the New Jersey Supreme Court is the final arbiter of our state constitution. Since nearly half of all states do not even use grand juries, the United States Supreme Court is unlikely to agree that the issues raised by the defendant warrant a dismissal of the indictment.
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