Hughes Justice Complex, Trenton, New Jersey/photo by Carmen Natale

The Supreme Court has issued updated guidelines on the use of remote proceedings at trial courts, and how to obtain video and audio of those proceedings, amid the state's ongoing effort to leverage technology to deal with the novel coronavirus crisis.

Monday's order, signed by Chief Justice Stuart Rabner and acting Administrative Director for the Courts Glenn Grant, reinforces that many court events can continue through video or phone conference, like they have for the past month. And proceedings can be conducted that way even over the objection of an attorney or party in many instances, they said.

Most trial court proceedings—though not jury trials, or selection of petit or grand juries—will continue remotely, but some proceedings require consent from both parties to be held remotely: sentencing hearings in criminal, family, and municipal matters; juvenile delinquency adjudications; evidentiary hearings and bench trials in criminal matters; evidentiary hearings and trials in municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; termination of parental rights trials; and hearings for an adjudication of incapacity and appointment of a permanent guardian.

Gov. Phil Murphy declared a state of emergency and public health emergency for New Jersey on March 16, setting in motion a series of executive orders to shut down schools, restaurants, offices, retail stores, and other businesses deemed nonessential. Essential businesses, such as gas stations, grocery stores, banks and pharmacies, have remained open.

The Supreme Court, under Rabner, appears to have been ahead of the curve: On Feb. 27 the judiciary established an internal COVID-19 working group, comprised of staff from all court divisions and areas directly involved in health emergency law.

Rabner then issued a series of orders. Among them: relaxing regulation 201:8 to waive the requirement of in-person courses for continuing legal education compliance (March 10); suspending new jury trials and adjusting the court calendar to avoid large courthouse gatherings (March 12); issuing protocols for safe oversight of persons in probation supervision (March 13); suspending municipal court sessions and landlord/tenant proceedings (March 14); postponing grand jury selections and postponing sessions for existing grand juries (March 17); and suspending county jail sentences for low-risk inmates through a consent order recognizing that jails could become potential breeding grounds for the coronavirus (March 22).

The Monday order authorizes judges to stay the commencement of certain custodial terms in criminal, family, and municipal matters, as well as to stay adjudications to secure placements in juvenile delinquency matters.

The order also states that the use of live-streaming technology primarily for criminal matters will continue, but requires detailed notice to victims to ensure an opportunity to participate in the sentencing hearing or to object to the scheduling or method of proceeding.

As of March 26, roughly 90% of judges and judiciary staff had relocated from courthouses and court facilities to working from home through a variety of technical support measures to conduct video and phone hearings, according to an executive summary of COVID-19 moves by the judiciary.

"Over the past month, the New Jersey courts have leveraged technology to enable remote proceedings in all divisions of the trial courts as well as in the Supreme Court, Appellate Division, and Tax Court," said the order's accompanying notice to the bar. "Nevertheless, our resources are finite, and the Court has determined to prioritize live-streaming for most criminal matters and to permit live-streaming for court events in other divisions based on an individualized determination."

As for public access, the Monday order provides for requests for real-time access to observe events that are not live-streamed, so long as those events are not ordinarily excluded from public access. Such requests are to be directed to the judge handling the matter, under the order, and should be submitted in advance by email if possible. "An individual permitted to observe a court event in real-time must comply with the Supreme Court Guidelines on Electronic Devices in the Courts and other applicable Judiciary policies that prohibit the unauthorized transmission of video, audio, or photographic records absent specific written permission of the Assignment Judge or designee," the notice to the bar says.

Likewise, records of remote court proceedings will continue to be available to the public: requests for an audio record on a CD should be submitted to the vicinage transcript office along with the required $10 fee, the court said. "[I]ndividuals may obtain a video or an audio record of a remote court event, and the time-frame for providing that record will be expedited for victims. The Administrative Director will promulgate a form for individuals to request an electronic (video or audio) file of a court event, free of charge," the notice says.

Requests and responses are to be submitted via email, and the requesting party will receive a password to access the electronic file, according to the court, and individuals who obtain a video or audio record of a court event conducted remotely "must comply with all applicable Judiciary policies, again including the Supreme Court Guidelines on Electronic Devices in the Courts."

"The Court has delegated to the Administrative Director responsibility to develop and maintain lists of typical events in each division of the trial courts (Civil, Criminal, Family, and Municipal) with information as to the remote options (Zoom, Scopia, Microsoft Teams, phone) that may be used for those events to the Administrative Director. A first iteration of this detailed events guidance will be posted in the attorney and self-help sections of the Judiciary's public website" to give attorneys and parties a heads-up as to whether their court matter will be live-streamed and if they would be requesting the use of a particular technology.

The court promised more guidance "in the coming weeks."