Administrative Director of the Courts Glenn Grant/photo by Carmen Natale

With in-person grand jury proceedings on hold due to the COVID-19 pandemic, New Jersey's judiciary announced a pilot program to hold virtual grand jury proceedings via Zoom video conference technology in Bergen and Mercer counties.

The two-county rollout could be followed by expansion of the program elsewhere in the state. Authorized by a state Supreme Court order issued Thursday, the pilot program was recommended by a court committee on remote grand jury operations as a first step toward restarting parts of the criminal justice process that were stalled by COVID-19, Administrative Director of the Courts Glenn Grant said in a notice to the bar.

The COVID-19 pandemic has court officials scrambling to provide continuity of court proceedings without endangering the health of litigants, lawyers, judges or jurors.

In New York state, where no grand juries are impaneled, the state's District Attorneys Association called for the resumption of grand jury operations in areas with low COVID-19 infection rates. Some California state courts are allowing grand juries to convene via Zoom. In Virginia, some prosecutors have honored social distancing guidelines by eliminating the custom of having grand jurors gather in a small room to deliberate.

In New Jersey's pilot program, court staff will supply grand jurors with technical assistance and laptops or tablets, if they don't have one, but they will have to have internet access. Jurors may use their own computer but won't be permitted to use a smartphone. Jurors will be required to swear or affirm a supplement to the standard oath of secrecy regarding confidentiality requirements in a virtual setting, the notice said. The supplemental oath includes a requirement that grand jurors not allow anyone else to hear or observe the grand jury and that they must not record, photograph or broadcast the proceedings.

In-person grand jury selections and sessions have been suspended statewide through May 31, which has left an additional 1,400 defendants sitting in county jails awaiting indictment. Others are awaiting indictment on pretrial release.

Some lawyers expressed concerns about the pilot program.

Paul Brickfield, a defense lawyer with Brickfield & Donohue in River Edge, said the pilot program is good news for people who are being held in a county jail while awaiting indictment. The pilot project will provide some movement for cases that were at a standstill due to COVID-19, he said.

Brickfield said he believes a small subset of more complex grand jury cases, where the defendant seeks to submit exonerating evidence in hopes of obtaining a no-bill, is not well-suited for a virtual grand jury over Zoom. Jurors are less able to sort out the credibility of conflicting testimony while participating by video link from their homes, said Brickfield.

"That's a situation where I don't think this will work," he said.

Brickfield also worries about the confidentiality of a grand jury process where jurors follow the proceedings remotely from their homes. Other parties in the juror's home might be able to hear the proceedings and spread information about defendants and the crimes they were accused of.

"My main concern is ensuring jurors abide by the secrecy oath. Unfortunately, they're on the honor system," Brickfield said.

Another Bergen County lawyer, Perry Primavera of Hackensack, expressed similar concerns that virtual grand juries would compromise secrecy of the grand jury process and make it harder for jurors to assess witness credibility.

Grand juries are often presented photos, medical and bank records that are highly sensitive, and there's no way to control who else hears the testimony with jurors in remote locations, said Primavera.

"I think we're losing the ability to keep the process secret. That effects everyone," he said.

A Mercer County criminal defense lawyer, Robin Kay Lord, also expressed concerns that a remote grand jury would compromise confidentiality and replace the grand jury's "pristine" nature with an event marred by the risks of hackers and background noise from barking dogs. She said a "better solution" than the pilot program for grand juries would be to revise New Jersey's 2017 Criminal Justice Reform Act to provide a mechanism for defendants to win release based on the risk of contracting COVID-19 in a county jail. New Jersey judges have routinely denied such petitions, Lord said.

Judiciary spokesman Peter McAleer said to ensure confidentiality of grand juries, the courts will ask jurors to participate in a room by themselves, and will furnish headphones for them to use, to keep others from overhearing the deliberations. Jurors are asked to notify court officials if their home environment does not afford privacy, he said.

"There's always a level of trust afforded to jurors to take their civic duty responsibly, and by and large they do" respect confidentiality of the grand jury, McAleer said.

As for concerns about jurors' ability to assess credibility of testimony by video, McAleer said remote grand juries will only hear third- and fourth-degree crimes and will likely be limited to cases with only one witness. And the remote grand jury will only hear cases where the defendant agrees to that forum, he said.

"It's a pilot program. We're trying to respond to a growing crisis. The other option is to do nothing," McAleer said.

The judiciary spokesman disputed Lord's assertion about courts not providing a means for defendants to get out of jail in order to avoid the risk of contracting COVID-19. In such cases, the lawyer can make a motion to reopen the detention hearing, McAleer said.

The court committee that recommended the pilot project for remote grand juries includes representatives from the Attorney General's Office, the Office of the Public Defender, the County Prosecutors Association of New Jersey, the ACLU, the New Jersey State Bar Association, and the private defense bar, Grant said in announcing the pilot program, which is to begin "promptly."

"The Supreme Court will assess the results of the pilot program in determining whether and how to expand virtual grand jury operations to additional counties and the State Grand Jury," Grant said. "Virtual grand jury sessions are another way that the New Jersey courts are ensuring uninterrupted access to normal during the COVID-19 crisis as we seek to establish a new kind of normal."