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Capitol Report: NJSBA to NJ Supreme Court: No virtual grand jury trials

By NJSBA Staff posted 02-11-2021 01:50 PM

  

The New Jersey State Bar Association (NJSBA) joined others in urging the state Supreme Court to delay grand juries until they can be safely held in person. The plea came in the form of an amicus curiae filing in the matter of State v. Vega-Larregui, Docket No. 085288. The brief was written by NJSBA trustees Christopher J. Keating, of Keefe Law Firm, and Brian J. Neary, of Law Offices of Brian J. Neary.

“The efforts made by the Judiciary to implement virtual proceedings in a wide array of court proceedings are commendable and have served to keep our judicial system moving throughout the pandemic,” the NJSBA said in its brief. “Virtual grand juries, however, are the exception and the type of proceeding that simply cannot be done virtually without grave consequences to the constitutional rights of the accused.”

Arguing that the constitutional infirmities of virtual grand jury trials far outweigh the need to hold them, the NJSBA urged the Supreme Court to halt them immediately. It highlighted issues that would preclude the constitutionality of virtual grand juries, including the secrecy of grand jury proceedings, the ability of grand jurors to hear evidence and deliberate in a meaningful way with fellow grand jurors, and the likelihood that there will not be a sufficient record below.

In the underlying case, the defendant pointed out that the mere presentment of evidence was complicated by technological failures and a record of “unidentified speakers,” which make it difficult to preserve the record below. Recognizing that some virtual grand juries have already occurred, the NJSBA suggested that any finding in favor of halting them does not necessarily invalidate previous indictments returned by virtual grand juries. “The Court should, however, provide guidance to trial courts about the appropriate circumstances under which challenges to virtual grand jury indictments can be properly considered,” the NJSBA said.

The NJSBA urged the Supreme Court to return to in-person grand jury hearings “as soon as practicable,” which is “imminent” based on the current availability of COVID-19 vaccines and the Court’s phased approach to opening its doors. The courts are currently in Phase 2 of a four-phase plan to reopen the courts. Phase 2 consists of a gradual and limited return to court buildings with 10 to 15 percent of judicial staff onsite and limited matters onsite. In Phase 3 and 4, the courts anticipate expanding jury trials and increasing judicial staff up to almost full capacity.

The NJSBA’s Pandemic Task Force Committee on the Resumption of Jury Trials made recommendations for in-person trials, which were referenced in the brief. The issue continues to be monitored by the NJSBA.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

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