Glenn A. Grant, J.A.D., Acting Administrative Director of the New Jersey Courts testifies before the NJ Senate Budget Committee. Glenn A. Grant, J.A.D., acting administrative director of the New Jersey courts. Photo by Carmen Natale/ALM

A clash over virtual court proceedings during the coronavirus pandemic intensified Wednesday as the state judiciary announced plans for resuming jury trials and opponents of the plan requested legislative hearings to air their objections.

Face-to-face jury trials will resume in September, starting with criminal trials in the Atlantic and Cape May counties vicinage, Bergen county and the Cumberland-Salem-Gloucester counties vicinage, and civil trials and trials in the state's remaining counties to begin soon after, the judiciary said Wednesday.

Under the plan, preliminary screening of prospective jurors will take place virtually, but voir dire will be conducted in the courthouse. Because social distancing requires more space, some trials will take up two courtrooms, with the judge, attorneys and litigants in one room and the jurors following by video link from a separate courtroom. Because of the added space requirements, fewer trials will take place at any one time.

"What the judiciary has attempted to do is balance two things—public safety and ensuring that the critical work of our court continues," said Glenn Grant, acting administrative director of the courts, at a Zoom press conference announcing the changes.

Conventional trials will be resumed as soon as it is safe to do so, added Jessica Lewis Kelly, Grant's special assistant.

"To be clear, this is a temporary solution to an unprecedented situation. Waiting is not an option. We cannot predict when jury trials will be able to resume in a pre-COVID-19 format. That may be months or a year from now," Kelly said.

Grant said the committee did solicit input. "It is impossible to include every segment of the bar," Grant said. "It was a 44-person, if not more, coordinating committee. Beyond that, we did outreach efforts to additional special interest groups to engage in conversations."

Asked if jurors could effectively assess a witness's credibility over a video link from another room or from a distance in the gallery, Grant responded, "We think they'll be able to do that in a very proficient and professional manner."

Meanwhile, the Association of Criminal Defense Lawyers of New Jersey has raised objections to the jury trial plan, which are similar to the concerns it raised earlier this month about the virtual grand jury pilot program announced in May. On Tuesday, the ACDL asked leaders of the Senate Judiciary Committee and the Assembly Judiciary Committee to conduct hearings on the judiciary's plans to expand use of virtual technology in court proceedings.

"Legislative hearings are warranted because these issues implicate a statute, a threat to civil liberties and a new method by which socially and economically challenged people will be disenfranchised by the criminal justice system," said Michael Baldassare, past president of the ACDL and a member of its pandemic task force. "The ACDL was invited to the table under a pledge of secrecy, after all the decisions were made and only after we raised very public and detailed objections."

Defense lawyers say the judiciary's plans for conducting jury trials during the pandemic infringes on their clients' rights. They object to having the preliminary phases of jury selection conducted remotely, believing that such a method will yield a narrower jury pool, said Matthew Adams of Fox Rothschild in Morristown, a member of the ACDL.

Low-income, nonwhite jurors may be excluded from the jury pool because they lack access to technology at home, said Adams. The judiciary has said it will provide computers to prospective jurors who don't have one.

Jack McCarthy, chief information officer for the judiciary, said a shipment of 2,000 computers was received by the state Tuesday and will be ready for use in September.

In addition, some older prospective jurors will find the need to participate virtually an obstacle, because they are not adept at using a computer, and older people and others with medical conditions making them more vulnerable to COVID-19 exposure will be reluctant to spend time in large groups at the courthouse, Adams said.

In addition, defense lawyers are concerned about the change in seating arrangements necessitated by the need for social distancing, Adams said. Depending on the layout of each courtroom, jurors may be seated in the gallery, rather than the jury box, which could make it harder for them to see exhibits or witnesses. And the need for social distancing will make it harder for criminal defendants and their counsel to communicate during trial.

Grant said at the press conference that defense lawyers could use a notepad to communicate with their clients during trial.

Adams also said defense lawyers will be putting their own health at risk by communicating with their clients, who are at a heightened risk of carrying COVID-19 because of widespread infections in jail.

The defense lawyers would like the judiciary to make participation in the upcoming jury trials optional. The court's virtual grand jury pilot program was initially made optional but the opt-out provision was eliminated after too many opt-outs.

The judiciary's expanding use of virtual technology during the pandemic has drawn criticism from other fronts as well. Earlier this month the New Jersey State Bar Association issued its own report expressing concerns that expanded the use of virtual technology in trials may violate litigants' constitutional rights. And a group representing the state's 21 county prosecutors issued a statement earlier this month opposing virtual grand juries.