State v. Omar Vega-Larregui (085288) (Mercer County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Omar Vega-Larregui (A-33-20) (085288)
Argued March 15, 2021 -- Decided April 28, 2021
ALBIN, J., writing for the Court.
As a temporary emergency response to the easy transmissibility of the deadly
airborne coronavirus, the Supreme Court authorized grand jury presentations in a virtual
format, first in a pilot program and later on a statewide basis. In this appeal, defendant
Omar Vega-Larregui and various amici curiae organizations claim that the virtual grand
jury format -- and therefore the lack of an in-person proceeding -- violates the right to a
grand jury presentation and other constitutional provisions. They also claim that the
Supreme Court does not have the constitutional authority to order temporary virtual grand
jury presentations for the duration of the pandemic.
On March 9, 2020, Governor Philip Murphy declared a Public Health Emergency
and State of Emergency in response to the COVID-19 pandemic. The Court canceled all
new civil and criminal jury trials until further notice on March 12, 2020, and all grand
jury sessions and the selection of new grand jury panels on March 17, 2020.
To keep the criminal and civil justice system functioning, by April 24, the
Judiciary had turned to technology and conducted more than 12,000 virtual proceedings.
The Court established the Working Group on Remote Grand Jury Operations to examine
whether, and if so, how, grand jury proceedings could resume in a virtual format while
in-person gatherings are suspended because of COVID-19. The Working Group
recommended that grand jury operations resume in certain counties in a virtual format in
a manner that upholds the solemnity and secrecy of those proceedings and safeguards the
rights of defendants, victims, jurors, and the public.
On May 14, 2020, the Court issued an Order authorizing a virtual grand jury pilot
program to begin in Bergen and Mercer Counties. The Order instructed that “[g]rand
juries empaneled before March 16, 2020 and still within their term of service may
reconvene in a virtual format.” It further directed that the standard grand jury charge
would be supplemented by a special charge and an oath of secrecy adapted to the virtual
format. The supplemental charge reminds the jurors of the gravity of their obligation and
warns that, if they violate their oath of secrecy or any other rule governing the grand jury
proceeding, they could be held in contempt and face “serious consequences,” including
1
potential fines and jail time. The May 14 Order also advised that the Judiciary would
“provide restricted-use devices (laptops or tablets) and related items” to any grand juror
who is “able to participate in virtual proceedings but requires technological support” and
would give training to the grand jurors “on the virtual courtroom process.”
In June 2020, the Court expanded the two-county grand jury pilot program to
include virtual grand jury selections and authorized virtual State Grand Jury proceedings.
On July 24, 2020, the Court took the virtual grand jury pilot program statewide. In-
person grand jury selection and sessions remain suspended.
As of January 29, 2021, the Judiciary had provided over 150 tablets (with
broadband internet capacity when necessary) to allow potential jurors to participate in
virtual grand jury selections and jurors to participate in virtual grand jury sessions. Any
grand juror without access to a computer or tablet is provided one by the Judiciary.
Jurors serving on State Grand Juries are instructed to interrupt or wave at their screens if
they have any technical problems, and Deputy Attorneys General and grand jury staff
monitor grand jurors’ screens to assist with any problems.
Judiciary staff, moreover, ensure that grand jurors comply with the secrecy
requirements of virtual grand jury sessions. Before each session, a staff member checks
in with the jurors, has them perform with their electronic devices a 360-degree scan of
their environments to confirm the privacy of their locations, and reminds them to turn off
their cell phones or other devices.
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.
2
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. 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.
HELD: 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.
1. Article I, Paragraph 8 of the New Jersey Constitution guarantees that “[n]o person
shall be held to answer for a criminal offense, unless on the presentment or indictment of
a grand jury.” The Court traces the history of the right to a grand jury presentation and
the roles that grand juries play in the criminal justice process. The Court’s temporary
suspension of in-person grand juries and jury trials was a public health imperative, but
that suspension delays the criminal justice process with serious implications for the
accused, whether detained or released pretrial, and the State. The question is whether all
of the essential attributes of the right to a grand jury presentation can be preserved
through a virtual format so that the grand jury can function and fulfill its historic purpose
in the midst of an unprecedented public health emergency. In answering that question, it
must be remembered that the framers of our State Constitution, like the framers of the
Federal Constitution, created a founding charter “intended to endure for ages to come,
and consequently, to be adapted to the various crises of human affairs.” See McCulloch
v. Maryland, 17 U.S. 316, 415 (1819). (pp. 28-32)
3
2. The grand jury is a judicial, investigative body, serving a judicial function and is an
arm of the court. In New Jersey, the Judiciary exercises supervisory authority over grand
juries to ensure that grand jury proceedings are fundamentally fair. See N.J. Const. art.
VI, § 2, ¶ 3. The Court’s constitutional administrative authority extends to the power to
issue rules and directives governing the grand jury and cannot be circumscribed by
legislation. Grand juries are also the subject of legislation that, in many instances,
overlaps with the court rules, and the Court acts with restraint when such legislation
advances a significant governmental purpose and does not interfere with the Court’s
administration of the court system. 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. (pp. 32-37)
3. 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. (pp. 37-39)
4. To establish a prima facie claim that the grand jury selection process violated the fair-
cross-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 in-
person 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. (pp. 40-43)
5. 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. (pp. 44-45)
4
6. 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 mini-
trial 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. (pp. 45-49)
7. 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. (pp. 49-52)
8. Virtual grand juries are a temporary measure invoked to meet an extraordinary, life-
threatening public health crisis, and the Court reviews relevant statistics. (pp. 52-54)
The motion to dismiss the indictment is DENIED, and the matter is
REMANDED to the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion.
5
SUPREME COURT OF NEW JERSEY
A-33 September Term 2020
085288
State of New Jersey,
Plaintiff-Respondent,
v.
Omar Vega-Larregui,
Defendant-Appellant.
On direct certification by the Supreme Court from
the Superior Court,
Law Division, Mercer County.
Argued Decided
March 15, 2021 April 28, 2021
John S. Furlong argued the cause for appellant (Furlong
and Krasny, attorneys; John S. Furlong, on the brief).
Randolph E. Mershon, III, Assistant Prosecutor, argued
the cause for respondent (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Randolph E. Mershon, III,
of counsel and on the brief).
Matthew S. Adams argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Fox Rothschild, attorneys; Matthew S. Adams, of
counsel and on the brief, and Marissa Koblitz Kingman
and Marc M. Yenicag, on the brief).
Brian J. Neary argued the cause for amicus curiae New
Jersey State Bar Association (New Jersey State Bar
1
Association, attorneys; Kimberly A. Yonta, President, of
counsel, and Brian J. Neary and Christopher J. Keating,
on the brief).
Carol M. Henderson, Assistant Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Carol M. Henderson, of counsel and on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
The Constitution must operate not just in the best of times, but also in
the worst of times. The framers of our Federal and State Constitutions
established a structure of government and system of justice to endure for the
ages -- even through crises and perils they could not have envisioned. The
fundamental rights guaranteed by our Constitution have been stress-tested
during a civil war, two world wars, an economic depression, and now a once-
in-a century pandemic.
The question in this case is whether, in the throes of the current
pandemic, we have been faithful to one of those rights provided in our State
Constitution -- that “[n]o person shall be held to answer for a criminal offense,
unless on . . . indictment of a grand jury.” N.J. Const. art. I, ¶ 8.
Beginning in March 2020, the public health threat of COVID-19 became
a dire reality for the residents of New Jersey. As of March 9, 2020, there were
eleven reported presumed positive cases of COVID-19 and no reported deaths
2
in this state. Just two months later, as of May 5, there were over 130,000
positive cases that resulted in at least 8,244 deaths and mounting
hospitalizations. The easy transmissibility of this deadly airborne coronavirus
led the Governor to exercise emergency powers to limit public gatherings and
the Supreme Court to issue public-safety Orders temporarily suspending jury
trials and grand jury presentations. Requiring grand jurors, particularly older
ones and those with underlying conditions, to appear in person in a forum
where social distancing was not practicable would have recklessly put at risk
the lives of those willing to perform their civic duty.
Without grand jury presentations, defendants subject to pretrial detention
or pretrial release would have been denied their right codified in Article I,
Paragraph 8 of the New Jersey Constitution. As a temporary emergency
measure, the Supreme Court authorized grand jury presentations in a virtual
format, first in a pilot program and later on a statewide basis.
Defendant Omar Vega-Larregui and various amici curiae organizations
claim that the virtual grand jury format -- and therefore the lack of an in-
person proceeding -- violates the right to a grand jury presentation and other
constitutional provisions. They also claim that the Supreme Court does not
have the constitutional authority to order temporary virtual grand jury
presentations for the duration of the pandemic.
3
The arguments advanced by defendant and amici are not supported by
the record in this case. Indeed, the defects attributed to the virtual format are
almost wholly based on supposition and speculation. To be clear, this Court
has the constitutional authority to make rules and procedures for all courts of
this state, including the grand jury, which is an arm of the court. Part three of
the Rules of Court extensively details the procedures governing grand juries .
Those procedures were adopted pursuant to this Court’s constitutional
rulemaking and supervisory authority. We reject the contention that this
Court’s authorization of a virtual format for the selection of grand jurors and
grand jury presentations during a lethal pandemic violates our State
Constitution’s separation of powers.
This Court has utilized technology to preserve, not to undermine, the
constitutional right of defendants to a grand jury presentation. The virtual
grand jury format -- a temporary measure to meet a public health emergency --
has not sacrificed any core principle animating the constitutional right to
indictment by grand jury. The selection of grand jurors for a virtual setting is
no different than for an in-person setting. Every grand juror who does not
have the technical capacity to participate is provided the necessary equipment
and training by the Judiciary. Defendant and amici have presented no
4
evidence that those selected for grand jury service in a virtual setting do not
represent a cross-section of the community.
The grand jurors in this case were drawn pre-pandemic, before the use of
virtual grand juries, and sat for a period in person before transferring to a
virtual format. Therefore, the general challenge to the virtual selection of
grand jurors is not even applicable here.
The Judiciary has closely monitored the administration of the virtual
format to ensure the integrity of the grand jury proceedings. We acknowledge
that errors sometimes will occur in court proceedings, including in a grand jury
presentation, whether in the in-person or virtual format. In individual cases
where a defendant claims that an alleged error or defect undermined the
fairness of the proceeding, a challenge may be mounted.
In the case before us, we do not see any error that undermined the
integrity of the grand jury proceeding; nor do we see a basis for the dismissal
of the indictment. Moreover, we do not find support for the facial
constitutional challenge to the temporary use of the virtual grand jury during
the current public health crisis. Accordingly, we hold that the presentation of
defendant’s case to a virtual grand jury did not violate his constitutional rights,
and we remand to the trial court for further proceedings.
5
I.
A.
On March 9, 2020, Governor Philip Murphy declared both a Public
Health Emergency and a State of Emergency in response to the COVID-19
pandemic -- a pandemic that, over the last year, has killed more than 22,500
residents of New Jersey and more than 560,000 persons in the United States.1
See Exec. Order No. 103 (March 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020).2
COVID-19 is a highly contagious and deadly virus that is spread airborne from
person to person, often by a cough, a sneeze, or even talking. It causes acute
respiratory illnesses and has led to countless hospitalizations, patients hooked
up to ventilators, and deaths -- and has left many survivors with long-term
unresolved health issues.
New Jersey was at the epicenter of the pandemic in the early days of the
outbreak. In the first two months after the issuance of the Governor’s first
executive order, more than 8,000 New Jersey residents had succumbed to
1
See N.J. Dep’t of Health, New Jersey COVID-19 Dashboard: Cases and
Trends, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (last
visited Apr. 21, 2021); Ctrs. for Disease Control & Prevention, COVID Data
Tracker, https://covid.cdc.gov/covid-data-tracker (last visited Apr. 21, 2021).
2
Pursuant to N.J.S.A. 26:13-3(b), Governor Murphy has extended the Public
Health Emergency each month since, most recently on April 15, 2021. See
Exec. Order No. 235 (Apr. 15, 2021).
6
COVID-19, and hospitals were inundated with patients infected by the virus.
The Governor’s initial executive orders required the closure of schools, day -
care centers, and non-essential businesses, and curtailed large gatherings to
slow the spread of the virus. See, e.g., Exec. Order 107 (Mar. 21, 2017).
In response to this unprecedented public health crisis caused by the
person-to-person spread of the virus, this Court on March 12, 2020 canceled
all new civil and criminal jury trials until further notice, and on March 17
canceled all grand jury sessions and the selection of new grand jury panels. In
Omnibus Orders issued on March 27 and April 24, 2020, the Court continued
the suspension of grand jury empanelment dates and grand jury sessions, and
all new civil and criminal jury trials.
To keep the criminal and civil justice system functioning, by April 24,
the Judiciary had turned to technology and conducted more than 12,000 virtual
proceedings by video and telephone conferences, including motions, settlement
discussions, arraignments, and detention hearings. After issuing the April 24
Order, the Court established the Working Group on Remote Grand Jury
Operations (Working Group) “to examine whether, and if so, how, grand jury
proceedings could resume in a virtual format while in-person gatherings are
7
suspended because of COVID-19.”3 Sup. Ct. of N.J., Notice and Order
-- Supreme Court Authorization of Virtual Grand Jury Pilot Program, at 1-2
(May 14, 2020).
“The Working Group recommended that grand jury operations resume in
certain counties in a virtual format in a manner that upholds the solemnity and
secrecy of those proceedings and safeguards the rights of defendants, victims,
jurors, and the public.” Id. at 2. On May 14, 2020, the Court issued an Order
authorizing a virtual grand jury pilot program to begin in Bergen and Mercer
Counties.4 At the time, statewide, 1,400 defendants were detained pretrial in
county jails and many defendants were on pretrial release, all waiting for their
cases to be presented to a grand jury.
The Court’s May 14 Order instructed that “[g]rand juries empaneled
before March 16, 2020 and still within their term of service may reconvene in
a virtual format.” It further directed that the standard grand jury charge would
3
The Working Group was composed of representatives from the Attorney
General’s Office and the Office of the Public Defender, designees of the
County Prosecutors Association of New Jersey, the American Civil Liberties
Union, the New Jersey State Bar Association, and the private defense b ar, as
well as judges and court staff.
4
From March to May 14, 2020, New Jersey courts had conducted “more than
23,000 virtual proceedings involving more than 189,000 participants .” Sup.
Ct. of N.J., Notice and Order -- Supreme Court Authorization of Virtual Grand
Jury Pilot Program, at 1-2 (May 14, 2020).
8
be supplemented by a special charge and an oath of secrecy adapted to the
virtual format. The supplemental charge and supplemental oath of secrecy, in
relevant part, instruct grand jurors that they must (1) participate from a private
location and shield their computer or tablet from the view of others and, unless
alone, use headphones or earbuds so that others cannot overhear the
proceedings; (2) “not allow other persons to see, hear, or otherwise observe the
grand jury proceeding”; (3) advise the “prosecutor immediately if [they]
believe someone can see or hear the proceeding” or if they “have a technical
problem, such as loss of audio or video”; (4) not communicate with other
grand jurors except during deliberations; (5) not communicate or share
information with anyone, at any time or through any medium, about the grand
jury proceeding; and (6) not audio- or video-record, photograph, or broadcast
the proceedings, or allow anyone else to do so. 5
The supplemental charge reminds the grand jurors of the gravity of their
obligation and warns that, if they violate their oath of secrecy or any other rule
5
At the Court’s request, Acting Director of the Administrative Office of the
Courts Judge Glenn A. Grant prepared the supplements to the jury charge and
oath of secrecy.
9
governing the grand jury proceeding, they could be held in contempt and face
“serious consequences,” including potential fines and jail time. 6
The May 14 Order also advised that the Judiciary would “provide
restricted-use devices (laptops or tablets) and related items” to any grand juror
who is “able to participate in virtual proceedings but requires technological
support” and would give training to the grand jurors “on the virtual courtroom
process.”
The May 14 Order stated that the remote grand jury format would
proceed “only with the consent of the defendant.” It quickly became apparent,
however, that the consent requirement had “inhibited bringing cases before . . .
ready grand juries.” Additionally, in the three weeks preceding June 4, the
number of defendants detained pre-indictment had increased from 1,400 to
1,540. In view of the increasing number of criminally charged defendants
6
A judge gives the traditional charge and supplemental charge to the grand
jury before it convenes for the first time in a virtual format. At each
subsequent session, the prosecutor is expected to remind the grand jurors of
the requirements of maintaining secrecy, preventing access by others, and
never photographing, recording, broadcasting, or otherwise sharing records of
the grand jury proceeding. The grand jurors are also advised again of the
criminal consequences of violating the oath of secrecy.
A Directive was issued on September 30, 2020, clarifying the
“operational requirements for administration of the supplemental grand jury
charge and oath [of secrecy]” for grand jurors empaneled during the virtual
phase.
10
detained or released and awaiting a grand jury presentation, on June 4, 2020,
the Court declared that remote grand jury sessions would proceed without a
defendant’s consent.
In June 2020, the Court expanded the two-county grand jury pilot
program to include virtual grand jury selections and authorized virtual State
Grand Jury proceedings. On July 24, 2020, the Court took the virtual grand
jury pilot program statewide, announcing that grand jurors in participating
counties would “be summoned for new grand jury selections starting on or
after September 21, 2020.” Over the next several months, Passaic and Atlantic
Counties joined the ranks of vicinages conducting virtual grand jury
proceedings.
By October 8, 2020, in-person grand jury sessions had been suspended
for six months and the number of defendants detained in county jails awaiting
a grand jury presentation had climbed to more than 2,700 (a number excluding
defendants on pretrial release) -- and there was no possibility of a presentation
except in those counties conducting virtual grand juries. That day, the Court
“announce[d] a comprehensive plan to ensure that all counties have a grand
jury panel equipped and ready to convene in a virtual format” by December 1,
2020.
11
We also authorized Assignment Judges and County Prosecutors to
convene in-person grand juries in accordance with public safety guidelines and
Judiciary policies. That plan ran aground just a few weeks later as a second
deadly wave of COVID-19 swept over New Jersey and the nation, rendering
in-person grand jury sessions a public health hazard. Accordingly, on
November 16, 2020, the Court again suspended in-person grand jury
proceedings and directed that all grand jury panels continue to convene in a
virtual format.
In-person grand jury selection and sessions remain suspended as of this
Court’s most recent Omnibus Order. Sup. Ct. of N.J., Eleventh COVID-19
Omnibus Order (Mar. 23, 2021). Virtual grand juries are now convened in all
twenty-one counties and have returned indictments, no-bills, and partial no-
bills in the course of more than 6,000 presentations.
B.
Certifications submitted by the Judiciary’s statewide Manager of Jury
Programs Brian McLaughlin; the Mercer Vicinage’s Jury Manager Dalia Seidl;
and Deputy Attorney General and Acting Attorney Supervisor of the State
Grand Jury Mallory Shanahan collectively aver that (1) no person summoned
to serve on a virtual grand jury is excluded because of lack of the necessary
technology; (2) grand jurors in need of technological equipment are provided
12
with tablets by the Judiciary for temporary use; (3) all grand jurors are trained
to fully and effectively participate in the virtual format; (4) virtual sessions are
closely monitored to ensure that grand jurors comply with the grand jury’s
secrecy requirements; and (5) Judiciary staff provide assistance if grand jurors
encounter technical difficulties hearing or participating in a grand jury
session.7
According to McLaughlin, the “summoning of a pool of jurors for a
[virtual] grand jury selection has remained largely unchanged” during the
pandemic. Prospective grand jurors complete a standard qualification
questionnaire either online or in hard copy; Assignment Judges or their
designees address requests for disqualification or rescheduling of service; and
requests for excusal because of financial hardship or childcare responsibilities
are handled in the same standardized manner. “No juror has been excluded
from selection or from serving on a virtual grand jury based on [a] lack of
technology.”
Vicinage Jury Management and information technology (IT) staff have
provided “individualized training to summoned and selected jurors to facilitate
7
In their briefs to this Court, the State attached McLaughlin’s and Seidl’s
certifications and the Attorney General attached Shanahan’s certification.
13
their participation in remote proceedings using Zoom.” 8 And all qualified
jurors are provided the necessary technology to serve on virtual grand juries.
As of January 29, 2021, the Judiciary had provided over 150 tablets
(with broadband internet capacity when necessary) to allow potential jurors to
participate in virtual grand jury selections and jurors to participate in virtual
grand jury sessions. Also, as of that date, more than 1,000 grand jurors were
serving on forty-five county-level virtual grand juries statewide, and more than
3,000 presentations had been made to virtual grand juries. McLaughlin
reported that no virtual grand jury selection or session had been breached or
hacked, or had its technical security otherwise compromised.
Judiciary staff, moreover, ensure that grand jurors comply with the
secrecy requirements of virtual grand jury sessions. Before each session, a
staff member checks in with the jurors, has them perform with their electronic
devices a “360-degree scan of their environment[s]” to confirm the privacy of
their locations, and reminds them to turn off their cell phones or other devices.
Deputy Attorney General Shanahan, the Acting Attorney Supervisor of
the State Grand Jury since the shift to virtual proceedings, attested that the
procedures identified by McLaughlin in his certification are largely followed
8
Zoom is a video-conferencing platform. See Zoom,
https://explore.zoom.us/meetings (last visited Apr. 20, 2021).
14
in State Grand Jury virtual selections and sessions. “No one is excused for
reasons relating to technological access or capability,” and any grand juror
without access to a computer or tablet is provided one by the Judiciary. Jurors
serving on State Grand Juries “are instructed to interrupt or [wave] at their
screens if they have any technical problems,” and Deputy Attorneys General
and grand jury staff monitor grand jurors’ screens to assist with any problems.
As of February 12, 2021, the Division of Criminal Justice had presented
more than sixty cases to virtual State Grand Juries, cases “ranging from
straightforward drug and weapons charges, to multi-defendant Human
Trafficking cases.” Shanahan noted that jury pool statistics for the number of
potential jurors available for virtual State Grand Juries are “not significantly
different” than the number for in-person State Grand Juries during pre-
pandemic times.
In Mercer County, Jury Manager Seidl certified that “[n]o juror has been
unable to participate in virtual selection or virtual sessions based on a lack of
technology” and that twenty-one grand jurors were provided the required
technology to participate. She described an “isolated instance early on in the
process” where one grand juror who was having trouble with her audio asked
her grandson for help “prior to the start of the session. The Assistant
Prosecutor conducting the session immediately noticed the presence of the
15
grandson, and directed that he leave the room, which he did.” As of February
10, 2021, virtual grand juries in Mercer County had heard 208 presentations.
II.
A.
On August 22, 2019, a City of Trenton police detective arrested and
charged defendant Omar Vega-Larregui in a complaint-warrant with third-
degree possession of a controlled dangerous substance (cocaine), N.J.S.A.
2C:35-10(a)(1); second-degree possession of cocaine with intent to distribute,
N.J.S.A. 2C:35-5(b)(2); second-degree possession of cocaine with intent to
distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a); and the
disorderly persons offenses of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and
obstructing a lawful investigation, N.J.S.A. 2C:29-1. Two days later, a
Superior Court judge placed defendant on pretrial release.
On February 13, 2020, the Mercer County Criminal Presiding Judge
selected a twenty-three-person grand jury panel in the Mercer County
Courthouse. The grand jury convened in person for orientation on February
20, 2020 and for sessions on February 27, March 5, and March 12, 2020.
Further sessions were canceled due to the pandemic until this Court’s
introduction of the virtual grand jury pilot program.
16
On June 18, 2020, the grand jury reconvened in a virtual format. Before
doing so, however, Dalia Seidl, Jury Manager for the Mercer Vicinage,
inquired of all of the grand jurors, by telephone or email, whether they had the
capacity to fulfill their service in virtual sessions. Only one grand juror asked
to be excused, and that was because she had moved to another county. Five
other grand jurors expressed a “willingness to serve but indicated that they
lacked reliable personal technology to participate in virtual sessions.” To
bridge the digital divide, the Judiciary made available to those five grand
jurors tablets with internet capacity to ensure their continued service.
Judiciary staff then assisted all grand jurors with a Zoom trial run. On
May 20, 2020, the Judiciary also conducted an orientation session and required
each grand juror “to demonstrate the capacity to use the technology, to see and
hear the proceedings, to communicate with [Judiciary] staff and each other,
and to indicate if they experienced any difficulties or otherwise required
assistance.” In addition, the grand jurors were given technical instructions and
contact information for the Mercer Vicinage jury and IT staff if they
encountered any technical problems. At the orientation session, the Criminal
Presiding Judge administered to the panel the supplemental grand jury charge
and supplemental oath of secrecy.
17
The grand jury convened for virtual Zoom sessions on June 18, June 25,
and July 2, 2020 and heard eight presentations during which it returned
indictments and partial no-bills.9 On July 9, 2020, the grand jury met for its
fourth virtual 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 grand jurors were administered the supplemental oath of
secrecy.
B.
During the virtual session in defendant’s case, Jury Manager Seidl and
three other grand jury staff members were present to ensure that no technical
issues arose during the proceeding.10 At the beginning of the session, the
9
“When a grand jury authorizes an indictment, it returns a ‘true bill.’ When it
declines to indict, it returns a ‘no bill.’” State v. Shaw, 241 N.J. 223, 231 n.1
(2020) (quoting Wayne R. LaFave et al., 3 Criminal Procedure § 8.2(a) (4th
ed. updated 2019)).
10
At this proceeding, only four grand jurors required the use of electronic
devices provided by the Judiciary.
18
prosecutor asked the grand jurors to express “[b]y a show of hands” whether
any recognized the names of Detective Stephen Szbanz, the State’s sole
witness, or defendant Omar Vega-Larregui, and whether any were “unable to
remain fair and impartial.” This exchange followed:
PROSECUTOR: I do not see any hands raised in the
affirmative. And, at this point, everybody can hear and
see me clearly, correct?
(No audible response)
PROSECUTOR: Okay. I see you nodding your heads
indicating yes. Okay. . . . Does any member of the
grand jury wish to have any portion of that law re-read?
(No audible response)
PROSECUTOR: I do not see any hands raised. . . .
The prosecutor then read the proposed indictment and asked the grand
jurors whether they had any questions before she brought in the witness.
When there was no audible response, the prosecutor stated, “No? Okay.”
Detective Szbanz testified that on August 22, 2019, he was in uniform
and on patrol in an unmarked vehicle when he observed a pickup truck parked
on a sidewalk, blocking a number of garages. He approached several men
standing nearby, and defendant stated that the pickup truck was his. The
detective requested the vehicle’s documents, and defendant proceeded to
unlock the truck’s passenger door, open the glove compartment, and shuffle
19
through papers. Defendant was visibly nervous, his hands were shaking , and
he failed to produce any paperwork. When defendant reached underneath the
passenger seat, the detective told him to stop, fearing he might reach for a
weapon. Defendant did not obey the command. At that moment, Detective
Szbanz also observed a sandwich bag on the floorboard containing a suspected
controlled dangerous substance.
The detective pulled defendant from the truck and attempted to place
him under arrest, but defendant resisted. With the assistance of responding
officers, defendant was subdued and taken into custody. The sandwich bag
with the suspected drugs was recovered and submitted to the New Jersey State
Police Laboratory for analysis. The substance inside the bag tested positive
for 29.982 grams (more than an ounce) of cocaine. Based on the packaging
and amount of the cocaine, Detective Szbanz offered his opinion that
defendant possessed the drugs with the intent to distribute. The detective also
indicated that defendant possessed the cocaine within 500 feet of a public park.
About halfway through the prosecutor’s questioning of the detective, the
prosecutor asked if the grand jurors could hear clearly. When there was no
audible response, the prosecutor said, “Okay. Good,” and proceeded.
20
At the conclusion of his testimony, the detective exited from the virtual
grand jury room. The prosecutor then made the following inquiries of the
grand jurors:
PROSECUTOR: Okay. Do any members of the grand
jury have any questions for the witness?
(No audible response)
PROSECUTOR: Any questions on the law?
(No audible response)
PROSECUTOR: Okay. So the State is requesting a no
bill on the charge of resisting arrest.
UNIDENTIFIED SPEAKER: And if nothing further,
the foreperson can ask if there was any technical.
PROSECUTOR: You’re muted, Michelle. You’re
saying something. I can’t hear you.
THE FOREPERSON: All right. Did anyone have any
technical issues with hearing this case?
(No audible response)
THE FOREPERSON: No. Okay.
UNIDENTIFIED SPEAKER: Okay. I’m going to
share the screen. Can everyone see the indictment?
GRAND JURORS: No.
UNIDENTIFIED SPAKER: How about now?
21
GRAND JUROR: No.
UNIDENTIFIED SPEAKER: No? Okay? Let me see.
UNIDENTIFIED SPEAKER: There we go.
UNIDENTIFIED SPEAKER: Yeah, but that’s not it,
though. Was that it? How’s that, do you see it?
UNIDENTIFIED SPEAKER: Yup.
UNIDENTIFED SPEAKER: Okay. All right . . . . No
other questions or concerns?
(No audible response)
UNIDENTIFIED SPEAKER: No? Okay.
An “unidentified speaker” reminded the grand jurors that they were not
to speak with anyone, even friends or family, about the grand jury hearing and
that any unauthorized disclosure of information was “a crime punishable by up
to 18 months [of] imprisonment.” The grand jury then proceeded to the virtual
“deliberation room” and returned a four-count indictment, charging defendant
with third-degree possession of cocaine, second-degree possession of cocaine
with intent to distribute, second-degree possession of cocaine with intent to
22
distribute within 500 feet of a public park, and fourth-degree obstructing the
administration of law or other governmental function, N.J.S.A. 2C:29-1(b).11
The grand jury session ended with the grand jury foreperson asking,
“Did anyone have any technical issues with that vote?” After there was no
audible response, the foreperson said, “No,” and an unidentified speaker also
said, “No.”
In a certification, Jury Manager Seidl later averred that the foreperson
conducted a “pre-deliberation technology check” with the grand jurors to
ensure that they had not “experienced any technical problems that affected
their ability to hear and/or observe the proceedings” and a “post-vote
technology check” to ensure that they did not have “any technical problems
that affected their ability to deliberate and vote.”
C.
Defendant entered a plea of not guilty to the charges in the indictment.
On November 10, 2020, defendant filed a motion in the Law Division 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,
11
The prosecutor was not present in the virtual deliberation room.
23
defendant argued that this Court exceeded its constitutional rulemaking
authority by convening a virtual grand jury.
Defendant invited the Association of Criminal Defense Lawyers of New
Jersey (ACDL) to intervene as amicus curiae, given the statewide
constitutional implications of the virtual grand jury format. With the consent
of the State and defendant, the Law Division granted the ACDL leave to
participate as amicus curiae and to address defendant’s motion challenging
“the constitutionality of virtual grand juries.” Defendant indicated that he
would join the arguments presented by the ACDL.
D.
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 allowed the ACDL to
retain its amicus status. The Court also granted the Attorney General of New
Jersey and the New Jersey State Bar Association leave to appear as amici
curiae.
III.
Defendant, the ACDL, and the State Bar Association -- like the State and
the Attorney General -- have filed separate briefs but advance many of the
24
same arguments. To avoid repetition, for the most part, we present their
respective arguments collectively.
A.
Defendant and amici contend that the right to a fair grand jury
presentation guaranteed by our State Constitution is violated when an
indictment is returned by a grand jury performing its duties virtually. In the
virtual format, they claim, the oath of grand jurors alone is not sufficient to
assure the secrecy of grand jury proceedings because the jurors are
participating from their homes or other private locations and may -- despite
instructions not to do so -- conduct their own factual or legal research using
smart phones, record the proceedings, or allow others to have access to the
hearing itself.
Defendant and amici also assert that virtual grand juries will not
represent a fair cross-section of the community because minority, poor, and
elderly populations are less likely to have access to internet devices, thereby
creating an intolerable “digital divide.” They maintain that technological
problems arising from the virtual format are rife and undermine the integrity of
the grand jury presentation, as evidenced in this case by “unidentified
speakers,” the acceptance of “no audible response” as a silent assent to a
question, and the possibility that individual grand jurors had connectivity
25
issues or did not know how to unmute to pose a question or raise an issue. The
virtual presentation, they profess, denies grand jurors a meaningful opportunity
to participate in the hearing.
The ACDL separately asserts that defendant’s equal protection rights
were violated by the Judiciary “selectively implementing” the virtual grand
jury program in only two counties initially. The ACDL reasons that defendant
was singled out for disparate treatment when his case was presented for
indictment when other cases, including those of detained defendants, were not.
The ACDL also faults this Court for overstepping its constitutional rulemaking
authority and breaching the separation of powers by adding to the legislative
qualifications for grand juror service the capacity to remotely participate in
proceedings.
Last, the State Bar Association and the ACDL call on this Court to
declare a moratorium on grand jury proceedings until they can return to an in-
person format.
B.
In contrast, the State and amicus Attorney General (collectively, State)
submit that the virtual grand jury -- a response to a life-threatening pandemic
-- has kept the criminal justice system in operation and honored the dictates of
our State Constitution and notions of fundamental fairness. The State
26
emphasizes that safeguards have ensured the integrity of the virtual grand jury
process: grand jurors are trained in the technology needed to participate in
virtual proceedings; they are advised that a violation of their oath of secrecy
will lead to criminal sanctions; and they are monitored by Judiciary staff so
that improper access to proceedings and technical glitches do not occur.
The State rejects defendant’s presumption that grand jurors cannot be
expected to obey their oath to keep grand jury proceedings secret or to abstain
from using electronic devices to conduct private research and investigations.
According to the State, the argument that jurors will defy their oaths is based
on nothing more than speculation and has no factual support.
The State also asserts that no evidence in the record suggests that the
virtual grand jury selection process does not produce a fair-cross section of the
community or that a constitutionally cognizable group has been excluded from
participating. The State contends that no juror has been excluded from serving
based on a lack of technology and that, in the present case, the Judiciary
provided five members of the grand jury tablets to participate in the virtual
sessions.
In addition, the State insists that no technical issues arose during the
grand jury presentation in this case that would place in question the fairness of
the proceedings. It also maintains that the grand jury is an arm of the court,
27
and therefore this Court exercised its constitutional rulemaking authority in
implementing the virtual format.
Last, the State denies that the presentation of defendant’s case to a
virtual grand jury in a two-county pilot program before the program was
extended statewide and before the cases of some detained defendants violated
defendant’s right to equal protection.
IV.
A.
In addressing the facial constitutional challenge to virtual grand juries
and the specific challenge to the virtual grand jury presentation in this case, we
begin with Article I, Paragraph 8 of the New Jersey Constitution. That
provision guarantees that “[n]o person shall be held to answer for a criminal
offense, unless on the presentment or indictment of a grand jury.” N.J. Const.
art. I, ¶ 8.
An accused’s right to a grand jury presentation has deep roots in the
English common law, long predating the adoption of New Jersey’s first
Constitution in 1776 and the United States Constitution in 1787. See State v.
Shaw, 241 N.J. 223, 235-36 (2020) (detailing the historical development of the
grand jury). The right to a grand jury presentation was guaranteed by New
Jersey’s 1776 Constitution, through its general adoption of the English
28
common law, and by the Fifth Amendment of the Federal Constitution.12 Id. at
237; see also State v. Rockafellow, 6 N.J.L. 332, 339 (Sup. Ct. 1796)
(“Without a legal presentment, no man can, under our administration of the
laws, be tried for any heinous offence . . . .”), overruled in other part, In re
Pub. Highway, 22 N.J.L. 293 (Sup. Ct. 1849). The right to a grand jury
presentation in the current New Jersey Constitution first appeared in similar
language in Article I, Section 9 of the 1844 Constitution. Bd. of Health of
Weehawken Twp. v. N.Y. Cent. R.R. Co., 10 N.J. 294, 304 (1952).
To this day, the grand jury “occupie[s] a high place as an instrument of
justice in our system of criminal law.” State v. Del Fino, 100 N.J. 154, 165
(1985). The grand jury fulfills the dual purpose “of determining if there is
probable cause to believe that a crime has been committed and of protecting
citizens against unfounded criminal prosecutions.” Ibid. (quoting Branzburg v.
Hayes, 408 U.S. 665, 686-87 (1972)). “The indictment requirement of Article
1, Paragraph 8, is a constitutional protection that enhances the integrity of the
12
The Fifth Amendment provides that “[n]o person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.” U.S. Const. amend. V. That provision of the Fifth
Amendment does not apply to the states, however. See Branzburg v. Hayes,
408 U.S. 665, 688 n.25 (1972). Indeed, most states have abandoned the use of
grand juries and institute charges by way of information. See Shaw, 241 N.J.
at 237; see also Wayne R. LaFave et al., 4 Criminal Procedure § 15.1(d) (4th
ed. updated 2020).
29
charging process,” In re Grand Jury Appearance Request by Loigman, 183 N.J.
133, 139 (2005), and infuses our system of justice “with a democratic ethos”
because ordinary citizens serve as grand jurors, ibid. (quoting State v. Fortin,
178 N.J. 540, 638 (2004)).
A grand jury presentation, however, is not a trial. The accused has no
right to appear before the grand jury or participate in the grand jury process.
See Robert Ramsey, Criminal Practice and Procedure, 31 N.J. Practice Law
Series § 21.7 (2021). Unlike at a trial, a defendant has no right to present
evidence or confront the witnesses against him at a grand jury proceeding. See
ibid.; see also Loigman, 183 N.J. at 143.
Although the language of Article I, Paragraph 8 does not speak of the
right to an in-person grand jury presentation, those who drafted that
constitutional provision and the same provision in the 1844 Constitution
obviously presumed that grand jurors would meet together in the same room.
They likely did not conceive of the technology that today allows for virtual
telemedicine examinations, virtual classrooms, or virtual grand juries. They
also did not likely foresee the lethal effects of an airborne virus that would kill
more than a half-million Americans and that would call for a public health
response requiring, to the extent possible, personal isolation to stop the spread
of the deadly pandemic.
30
This Court’s temporary suspension of in-person grand juries and jury
trials was a public health imperative -- a step necessitated to protect jurors,
prosecutors, and court staff from potential serious illness and death. The
suspension of grand juries, however, delays the criminal justice process with
serious implications for the accused, whether detained or released pretrial, and
the State. Suspension of grand juries means that some detained defendants,
whose charges might be dismissed by the grand jury, will remain incarcerated
for longer periods than otherwise necessary. See, e.g., Haley v. Bd. of
Review, ___ N.J. ___, ___ (2021) (slip op. at 4) (noting that the defendant
spent two months in custody until his charges were dismissed by a grand jury).
The right of the accused to a speedy trial is also deferred -- and no doubt some
will argue violated -- by not keeping grand juries in session.
The State, moreover, has an interest in securing testimony while the
memories of witnesses are fresh and in convening investigative grand juries
with the power to subpoena witnesses to ferret out criminal activities -- and in
bringing justice to victims with all due speed.
When the Court entered its first Order temporarily suspending grand jury
sessions, it could not know the duration of the pandemic, the death toll it
would reap, or whether an effective vaccine or treatment would be developed
within a year or much longer. Confronting the Court was whether the
31
Constitution required a shutdown of the criminal justice system for an
indeterminate period while arrests continued and detentions climbed.
The question is whether all of the essential attributes of the right to a
grand jury presentation can be preserved through a virtual format so that the
grand jury can function and fulfill its historic purpose, in the way intended by
the drafters of our Constitution, in the midst of an unprecedented public health
emergency. In answering that question, we must remember that the framers of
our State Constitution, like the framers of the Federal Constitution, created a
founding charter “intended to endure for ages to come, and consequently, to be
adapted to the various crises of human affairs,” see McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 415 (1819) -- a charter capable of adapting “to a
future that [could] only be ‘seen dimly,’ if at all,” see NLRB v. Noel Canning,
573 U.S. 513, 534 (2014) (quoting McCulloch, 17 U.S. at 415).
B.
We begin with an indisputable legal principle: “[t]he grand jury is a
judicial, investigative body, serving a judicial function” and “is an arm of the
court.” Loigman, 183 N.J. at 141; State v. Haines, 18 N.J. 550, 557 (1955)
(“The grand jury, at common law, is an arm of the court and acts for the court
under which it is organized, and its proceedings are regarded as proceedings in
the court.” (quoting O’Regan v. Schermerhorn, 25 N.J. Misc. 1, 19-20 (Sup.
32
Ct. 1946))). Indeed, “[n]ot only is the grand jury an arm of the court in New
Jersey, but the Judiciary also exercises supervisory authority over grand juries”
to ensure that grand jury proceedings are fundamentally fair. Shaw, 241 N.J.
at 242.
Our supervisory authority over the grand jury derives from the New
Jersey Constitution, which provides that “[t]he Supreme Court shall make rules
governing the administration of all courts in the State and, subject to the law,
the practice and procedure in all such courts.” N.J. Const. art. VI, § 2, ¶ 3.
The Constitution also designates the Chief Justice as the “administrative head
of all the courts in the State.” Id. § 7, ¶ 1. “Those two provisions give the
Chief Justice and the Supreme Court sweeping authority to govern their own
house,” In re P.L. 2001, Chapter 362, 186 N.J. 368, 379 (2006), a house that
includes the grand jury.
Our “Court’s administrative authority is ‘far-reaching’ and ‘encompasses
the entire judicial structure [as well as] all aspects and incidents related to the
justice system,’” including “‘all facets of the internal management of our
courts.’” Id. at 381 (alteration in original) (first quoting Knight v. City of
Margate, 86 N.J. 374, 387 (1981); and then quoting Lichter v. County of
Monmouth, 114 N.J. Super. 343, 349 (App. Div. 1971)). That authority
extends to the power to promulgate rules and issue directives governing the
33
grand jury. Ibid.; see also Haines, 18 N.J. at 558-59 (affirming the Court’s
power to adopt a rule concerning “the continuance of terms of a grand jury”).
Because of the constitutional power Article VI vests in the Supreme Court, its
“administrative rulemaking authority cannot be circumscribed by legislation .”
In re P.L. 2001, 186 N.J. at 381.
The New Jersey Rules of Court set forth comprehensive guidelines and
procedures governing almost every aspect of the grand jury process. R. 3:6-1
to -11. Those Rules cover details regarding the summoning of the grand jury;
the making of objections to the array of the grand jury or individual grand
jurors; the supervision and charging of the grand jury; the appointment of a
foreperson and deputy foreperson; the duties of the clerk of the grand jury; the
persons who may be present during grand jury proceedings; how a record and
transcript are to be made and retained; the secrecy of grand jury proceedings;
the finding and returning of indictments and no-bills and the finding and
returning of presentments; the discharging of a grand jury and continuance of a
grand jury’s term; and the empanelment and supervision of the State Grand
Jury. Ibid.
We acknowledge that county grand juries and the State Grand Jury are
also the subject of legislation that, in many instances, overlaps with our court
rules. See N.J.S.A. 2B:21-1 to -10 (laws pertaining to county grand juries);
34
N.J.S.A. 2B:22-1 to -9 (laws pertaining to the State Grand Jury). The
Legislature, however, has spoken on topics not covered by our Court Rules,
such as setting forth the qualifications for service on a grand jury, N.J.S.A.
2B:20-1; the oath to be taken by grand jurors, N.J.S.A. 2B:21-3; and the
criminal penalty for purposely disclosing information concerning a grand jury
proceeding, N.J.S.A. 2B:21-10. Some aspects of the overall legislation are
clearly procedural and some substantive. It is not uncommon for the Judiciary
and Legislature to share spheres of responsibility in areas of mutual concern,
as exemplified by the adoption of court rules and legislation regarding
evidence rules, e.g., State v. Byrd, 198 N.J. 319, 342 (2009), and the Pretrial
Intervention Program, e.g., State v. Johnson, 238 N.J. 119, 128 (2019).
In exercising our constitutional supervisory authority over the courts, we
may “permit or accommodate the lawful and reasonable exercise of the powers
of other branches of government even as that might impinge upon the Court’s
constitutional concerns in the judicial area.” Knight, 86 N.J. at 391. “The
purpose of the separation of powers doctrine is not to create three ‘watertight’
governmental compartments, stifling cooperative action among the” three
branches of government. In re P.L. 2001, 186 N.J. at 379. Thus, we act with
restraint when legislation, touching on the judicial sphere, advances “a
significant governmental purpose” and does “not interfere with the Supreme
35
Court’s administration of the court system.” Id. at 384 (quoting Knight, 86
N.J. at 391-93, 394-95).
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. We reject the ACDL’s
argument that this Court’s rulemaking authority has tread on a “field of the
substantive law” reserved to the Legislature. See Winberry v. Salisbury, 5 N.J.
240, 248 (1950). We also reject the ACDL’s more particularized claim that
service on a virtual grand jury requires a juror qualification at odds with
N.J.S.A. 2B:20-1.
N.J.S.A. 2B:20-1 sets forth the qualifications for jury service: age,
citizenship, and residency requirements; the ability to read and understand the
English language; lack of an indictable criminal conviction; and lack of a
mental or physical disability that would prevent service as a juror. The ACDL
raises the illusory issue that the Court has made “reliable internet access,
technology, and technological know-how” a new “extra-statutory”
qualification for grand jury service.
First, where the grand jury convenes -- customarily in a courthouse -- is
clearly a matter of procedure. See generally R. 1:2-1. Under the emergent
36
circumstance prompted by the pandemic, the grand jury temporarily convenes
in a virtual format. Second, the record plainly reveals that “[n]o juror has been
excluded from selection or from serving on a virtual grand jury based on lack
of technology.” The Judiciary provides not only tablets with broadband
internet capacity to grand jurors who do not have the available technology, but
also technical assistance in setting up and using the tablet. In this case, the
Judiciary made available tablets to five grand jurors who indicated a
willingness to serve but lacked reliable personal technology to participate in a
virtual proceeding. All grand jurors, moreover, receive training to participate
in virtual proceedings using Zoom. Providing tablets to grand jurors -- like
providing interpreters for non-English speakers and listening devices to the
hearing impaired -- is akin to other accommodations afforded by the Judiciary
so that all can participate and have equal access to the courthouse.
Whatever digital divide existed has been bridged by the Judiciary’s
provision of the necessary technology and technological know-how to grand
jurors.
C.
Defendant and his supporting amici allege that the very nature of a
virtual grand jury session is incompatible with the secrecy requirements
mandated by our Court Rules. See R. 3:6-7 (providing that “the requirement
37
as to secrecy of proceedings of the grand jury shall remain as heretofo re” and
that all grand jurors “shall be required to take an oath of secrecy before their
admission” to a grand jury session); see also N.J.S.A. 2B:21-3 (requiring grand
jury members to swear or affirm that they “will keep secret the proceedings of
the grand jury”). To be sure, “the proper functioning of our grand jury system
depends upon the secrecy of grand jury proceedings.” Douglas Oil Co. of Cal.
v. Petrol Stops Nw., 441 U.S. 211, 218 (1979).
“One of the foundations of our jury system is that the jury is presumed
to follow the trial court’s instructions.” State v. Burns, 192 N.J. 312, 335
(2007). The premise of defendant’s and amici’s argument is that virtual grand
jurors cannot be trusted to obey their oaths or follow instructions, even on
penalty of severe sanctions. In effect, they urge that we discard the
presumption that virtual grand jurors will act in accordance with their lawful
duties. Because defendant and amici have no sound evidence to support their
premise of virtual grand juror irresponsibility, they have resorted to
speculation and hypothetical scenarios.
Defendant and amici hypothesize that grand jurors -- in the privacy of
their homes -- will do online research with their smartphones, surreptitiously
record the proceedings, talk to their families or friends about the case, and
perhaps give unauthorized access to the virtual grand jury room. They give
38
little credit to the repeated reminders given to the grand jurors about the
sanctity of the proceedings and serious penalties they would face for a
violation of their oath of secrecy. See N.J.S.A. 2B:21-10 (stating that
unauthorized disclosures may be punishable as a fourth-degree crime). Nor do
they fully take into account the diligent efforts by Judiciary staff to monitor
compliance, such as requiring jurors to perform a 360-degree scan of their
location with their electronic devices.
In the end, there is no perfect system of verification, and we must rely
on the good faith of all grand jurors and all trial jurors to follow instructions
and obey their oaths -- and in those instances when violations occur, hold the
offending jurors accountable. We cannot guarantee that a petit juror during a
trial will not go home and do research or speak to a spouse or a friend about a
case. We cannot guarantee that a juror will not smuggle an audio recording
device into the grand jury room or go home and reveal the names of the
witnesses and target of the investigation. We presume that those jurors will
follow instructions and obey their oaths. Our confidence in our system of
justice is proportionate to our faith in those jurors.
Defendant and amici have given this Court no basis -- other than utter
conjecture -- for concluding that virtual grand jurors are less trustworthy and
less honorable than other grand jurors and petit jurors.
39
Dall.
1.
Likewise, defendant’s and amici’s argument that a virtual grand jury
does not represent a cross-section of the community is based wholly on
supposition. They have provided no evidence to contradict the fact-based
certifications in the record that virtual grand juries are not only drawn in the
same manner as in-person grand juries, but also that no person is excluded
from grand jury service based on lack of technology or internet capacity.
A grand jury that represents a cross-section of the community provides
“a democratic safeguard to our judicial system” and is infused with “the
common wisdom of ordinary citizens to make the important fact-finding
decisions that must precede the filing of an indictment.” Fortin, 178 N.J. at
638. Impartially selecting a grand jury that mirrors a fair-cross section of the
community “demands that each person have an equal chance of serving.” State
v. Ramseur, 106 N.J. 123, 231 (1987).
To establish a prima facie claim that the grand jury selection process
violated the fair-cross-section requirement or the right to equal protection, 13 a
13
Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll
persons . . . have certain natural and unalienable rights, among which are those
of enjoying and defending life and liberty, of acquiring, possessing, and
protecting property, and of pursuing and obtaining safety and happiness.” We
have construed the “expansive language” of Article I, Paragraph 1 as
40
defendant must show, through statistical evidence or through inferences drawn
from a discriminatory selection procedure, substantial underrepresentation of
“a constitutionally cognizable group.” State v. Coyle, 119 N.J. 194, 213
(1990).
Defendant and amici have provided no evidence that the grand jury in
this case did not represent a fair cross-section of the community. First, the
statewide Manager of Jury Programs averred that the process of summoning
jurors for grand jury selection “has remained largely unchanged” for virtual
grand juries. Prospective grand jurors are mailed a juror summons postcard
that identifies the internet site at which the juror can complete their
questionnaire. If they do not respond to the questionnaire online, they are
mailed a hard copy questionnaire. Deputy Attorney General Shanahan,
moreover, has attested that, statistically, the number of potential jurors
available for virtual State Grand Juries is “not significantly different” from
those before the pandemic.
guaranteeing every person equal protection under the law. See, e.g., Sojourner
A. v. Dep’t of Human Servs., 177 N.J. 318, 332 (2003); Lewis v. Harris, 188
N.J. 415, 442 (2006). The equal-protection guarantee is intended “to protect
against injustice and against the unequal treatment of those who should be
treated alike.” Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985).
41
Second, the grand jurors in this case were selected in pre-pandemic days
when in-person grand juries were still in session. When the Court authorized
virtual grand juries and the present panel transitioned to virtual sessions, the
Judiciary provided to five grand jurors tablets with, if necessary, internet
access so that every juror could continue to serve and participate. No one on
this grand jury panel was excluded from serving based on lack of personal
technology.
The certifications of the statewide Manager of Jury Programs, the Jury
Manager of the Mercer Vicinage, and the Acting Attorney Supervisor of the
State Grand Jury indicate that no person called to serve on virtual grand juries
throughout the state has been excluded for lack of technological equipment or
means. Those in need of the necessary technology are provided with tablets
and training to effectively participate.
Had this Court not followed health-safety protocols and kept in place in-
person grand juries during the pandemic -- presuming a public facility could
effectively accommodate the required social distancing of masked grand jurors
-- 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 by defendant and amici. On the other
42
end of the spectrum, an indeterminate moratorium on all grand jury
presentations would have caused adverse consequences for those seeking to be
cleared of charges, for those seeking to be afforded speedy trials, and for
victims looking to have their perpetrators brought to justice without undue
delays.
New Jersey has not been the only State to authorize virtual grand jury
proceedings during the pandemic. Five of the seventeen other states that “still
require a grand jury indictment for serious offenses,” Shaw, 241 N.J. at 237;
see also Wayne R. LaFave et al., 4 Criminal Procedure § 15.1(d) (4th ed.
updated 2020), have authorized virtual grand jury proceedings in response to
the COVID-19 pandemic. See, e.g., Alaska, Sup. Ct. of Alaska, Special Order
of the Chief Justice No. 8204: Update Regarding Authorizing
Videoconference Grand Jury Proceedings (Nov. 2, 2020); Georgia, Sup. Ct. of
Ga., Eighth Order Extending Declaration of Statewide Judicial Emergency
(Nov. 9, 2020); Kentucky, Sup. Ct. of Ky., Order 2020-40 -- In Re: Kentucky
Court of Justice Response to COVID-19 Emergency: Expansion of Court
Proceedings (May 19, 2020); South Carolina, Sup. Ct. of S.C., Operation of
the Trial Courts During the Coronavirus Emergency (Apr. 22. 2020); Texas,
Sup. Ct. of Tex., Twenty-Ninth Emergency Order Regarding the COVID-19
State of Disaster (Nov. 11, 2021).
43
In the midst of this worldwide and national pandemic, 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.
2.
Defendant and the ACDL contend that by “selectively implementing”
the Virtual Grand Jury Pilot Program first in Mercer and Bergen Counties and
not allowing defendant to await an in-person presentation like similarly
situated criminal defendants, the Judiciary denied him his right to equal
protection of the law. In light of our conclusion that a virtual grand jury --
convened under the emergent circumstances of a deadly pandemic -- does not
run afoul of the constitutional right to a grand jury presentation, defendant can
hardly complain that having his constitutional right vindicated too soon and
before others violates his equal protection rights. 14 Virtual grand juries,
moreover, are now operating in all twenty-one counties, so defendant’s
disparate-treatment argument -- if it ever had legitimacy -- falls away.
The purpose of having a pilot program, such as for virtual grand juries or
drug courts, is to ensure the efficacy of the program before implementing it
14
Contrary to defendant’s assertion, no limitation has been placed on the
types of criminal cases that could be presented to a virtual grand jury.
44
statewide. Pilot programs by their very nature may apply to a subset of a much
larger population. For example, drug courts began in Essex County and
Camden County and, over time, expanded statewide. See N.J. Courts, Drug
Courts, https://njcourts.gov/courts/criminal/drug.html?lang=eng (last visited
Apr. 21, 2021). The use of a pilot program, as here, did not create an
impermissible or unlawful classification and advanced a legitimate
constitutional objective, thus satisfying the rational-basis test for such a
program. See State v. Bianco, 103 N.J. 383, 398 (1986) (holding that the
Excessive Sentencing “Pilot Program, by singling out excessive sentence
appeals for disposition with oral argument but without briefs . . . rationally
furthered the State’s interest of securing prompt justice for all” and did not
violate the defendant’s equal protection rights).
V.
A.
Defendant and supporting amici argue that that the inherent limitations
and shortcomings of technology fatally undermine the integrity of virtual
grand jury proceedings and render them fundamentally unfair under New
Jersey law. They reason that, in the setting of a virtual grand jury,
technological deficiencies, as illustrated in the particular case before us,
obstruct one of the core functions of the grand jury -- to be “present or
45
informed of the evidence at each session in order to vote or to indict,” citing
Del Fino, 100 N.J. at 164-65.
We find that the concerns raised by defendant and amici, for the most
part, are overstated and grounded in conjecture, not in the reality of the many
thousands of virtual judicial proceedings successfully conducted -- despite
occasional glitches -- over the course of the pandemic. We acknowledge that
the use of technology, like all human undertakings, will not meet the test of
perfection. Nevertheless, we conclude that virtual grand jury proceedings
comply with the essential tenets of the fundamental fairness doctrine.
“New Jersey’s doctrine of fundamental fairness ‘serves to protect
citizens generally against unjust and arbitrary governmental action, and
specifically against governmental procedures that tend to operate arbitrarily.’”
Doe v. Poritz, 142 N.J. 1, 108 (1995) (quoting Ramseur, 106 N.J. at 377
(Handler, J., dissenting)). The doctrine is “an integral part of due process,”
Shaw, 241 N.J. at 239 (quoting State v. Saavedra, 222 N.J. 39, 67 (2015)), and
promotes the values of “fairness and fulfillment of reasonable expectations in
the light of the constitutional and common law goals,” Saavedra, 222 N.J. at
68. The fundamental fairness doctrine, however, is “applied ‘sparingly,’ only
when ‘the interests involved are especially compelling.’” Shaw, 241 N.J. at
239-40 (quoting Poritz, 142 N.J. at 108).
46
B.
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: a frozen video screen, imperfect audio, insufficient signal strength
and connectivity issues, all capable of causing a grand juror to miss key
testimony. A virtual proceeding, it is claimed, “does not capture all of the
cues so vital to judging credibility.” Defendant, moreover, presents anecdotal
examples from a news article about a grand juror who purportedly dropped off
a video feed and one who could not hear a witness’s testimony.
However, the hypothetical technological concerns raised by defendant
and amici, as well as the secondhand account from a news article, are
addressed in certifications filed by the statewide Manager of Jury Programs,
the Mercer Vicinage’s Jury Manager, and the Acting Attorney Supervisor of
the State Grand Jury. Those certifications detail what actually occurs before,
during, and after a virtual grand jury presentation to ensure that grand jurors
were present during the proceeding, heard the evidence, and voted. Those
certifications spell out that grand jurors are extensively trained to participate in
virtual grand jury sessions and advised to report technical problems to
Judiciary staff. Those certifications describe how Judiciary staff and
47
prosecutors patrol and monitor the virtual grand proceedings to detect and
correct technological issues.
No one suggests that technology does not present challenges in the
virtual setting. In Mercer County, for example, grand jurors are given the
contact information for grand jury and IT staff and instructions to call if they
have any technical issues. Experience and common sense also tell us that if a
grand juror’s screen is frozen or the grand juror falls off the feed, that will be
noticed -- by the affected grand juror, by other grand jurors, by Judiciary staff,
and by the prosecutor. If grand jurors have a problem hearing, presumably
they will follow instructions and advise Judiciary staff. If a grand juror
attempts to speak and gets no response, that will be a cue for the juror to
unmute -- or if others see the juror’s lips moving and hear no sound, they will
tell the juror to unmute.
Defendant also raises the question of whether grand jurors can assess the
credibility of a witness in the virtual format. Yet judges do so in remote
proceedings in many contested matters, such as testimonial hearings,
municipal court trials, and even civil jury trials. See also Ramsey, § 21.7
(“The grand jury process is not a mini-trial where issues related to credibility
are decided.”).
48
The technological problems that may arise in the virtual grand jury
setting are common to all virtual proceedings -- even live-streamed New Jersey
Supreme Court virtual oral arguments. Those problems have not deterred the
thousands of virtual proceedings that have permitted the New Jersey Judiciary
to keep the doors to the virtual courthouse open in the time of a pandemic.
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 grand jury session.
We reject the notion that virtual grand jury proceedings facially violate
the fundamental fairness doctrine or the New Jersey Constitution.
C.
We now turn to the virtual grand jury proceeding in this case. Our
review of the grand jury transcript leads us 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. We
nonetheless recognize that some simple steps can be taken to further safeguard
and inspire confidence in the integrity of virtual grand jury proceedings.
49
At the beginning of the grand jury proceeding, the prosecutor asked , “by
a show of hands,” whether any grand juror recognized the name of defendant
or the State’s only witness and affirmed for the record that no hands were
raised; she then asked whether the jurors “can hear and see me clearly,” and
indicated she saw no hands raised. As in typical in-person grand jury
presentations, the prosecutor relied on silence as an answer. For example, the
prosecutor asked the grand jurors whether they had any questions about the
proposed indictment, or for Detective Szbanz after he testified, or on the law;
and the prosecutor relied on the jurors’ silence (“no audible response”) as their
response that they had none.
It is true that if the grand jurors did not hear the question, because of a
technical malfunction, they arguably would not be in a position to respond.
But the grand jurors were trained to report technical issues to the grand jury
staff, and presumably if they saw the prosecutor’s lips moving and heard no
sound, they would know that there was a problem. Judiciary staff monitored
the proceedings as well. In addition, following protocol, before the jurors
deliberated in the breakout room, the foreperson asked the jurors whether any
experienced a problem that affected their ability to observe or hear the
proceedings. We are mindful that even in an in-person grand jury session, a
50
juror may be daydreaming or distracted, but the existence of such human
frailties does not indicate an institutional failing in our system of justice.
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.
Also, during the colloquy about whether the grand jurors could see the
indictment, the transcript reveals an “unidentified speaker” making such
comments as, “Can everyone see the Indictment?”; “How about now?”; “All
right . . . . No other questions or concerns?”; and “No. Okay.” We reject the
contention of defendant and amici that the exchange, in its totality, suggested
that the grand jurors did not see the indictment. That contention is further
refuted by the foreperson’s post-vote technology check.15 Additionally, the
Mercer Vicinage Jury Manager certified that the grand jurors reported no
technical difficulties. Last, the grand jurors were not neophytes; they had
participated in three previous virtual grand jury sessions and knew their roles.
Nevertheless, going forward all persons speaking on the record should
identify themselves or be identified. Everyone participating in the virtual
15
In all likelihood, the “unidentified speaker” was a member of the grand jury
IT staff.
51
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. We therefore deny his motion to dismiss the indictment on
the grounds addressed in this opinion and remand to the trial court for further
proceedings.
VI.
A few final words. Virtual grand juries are a temporary measure
invoked to meet an extraordinary, life-threatening public health crisis. On
March 9, 2020, New Jersey reported eleven presumed positive cases of
COVID-19. See Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr.
6, 2020). A little more than a year later, as of April 19, 2021, New Jersey
reported 22,551 confirmed deaths and an additional 2,592 probable deaths
related to COVID-19 -- and 858,519 confirmed cases and 120,334 probable
cases. N.J. Dep’t of Health, New Jersey COVID-19 Dashboard: Cases and
Trends, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml. On
April 19, 2021, there were 2,109 COVID-19 patients hospitalized, with 435 in
intensive care and 254 on ventilators in this state. N.J. Dep’t of Health, New
Jersey COVID-19 Dashboard: Hospital Census, https://www.nj.gov/health
52
/cd/topics/covid2019_dashboard.shtml. Up to that date, 563,890 people had
died from COVID-19 in the United States. Ctrs. for Disease Control &
Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker.
New Jersey has suffered the highest per capita death rate in the country during
the course of the pandemic.
Those staggering statistics give some understanding of the dimension of
the crisis faced by the Judiciary and all New Jersey residents. Yet as life goes
on, the criminal and civil justice system cannot stand still. No one could
predict how long the pandemic would last. The Judiciary -- like educational
institutions, government operations, and businesses -- transitioned to a virtual
format during this grim period. Through the cooperative efforts of judges,
Judiciary staff and IT personnel, along with lawyers and litigants, many
thousands of remote hearings have been conducted in our criminal and civil
justice system. Indeed, the Administrative Office of the Courts has reported
that between March 16, 2020 and April 20, 2021, 175,073 virtual court events
have been conducted involving over 2 million participants.
Since the beginning of the pandemic, more than 6,000 cases have been
presented to virtual grand juries. The Judiciary has endeavored to maintain all
the essential attributes of the grand jury in the virtual format, so that the grand
jury retains its high, preferred place in our constitutional framework. As
53
millions of New Jersey residents continue to receive vaccinations, we look
forward in the near future to a return to normalcy and to reopened courthouses
-- and to grand jurors sitting together in the same room where testimony is
taken.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join
in JUSTICE ALBIN’s opinion.
54