A controversial program allowing grand jury proceedings via Zoom has gone from optional to mandatory after too many lawyers objected to the concept.

The pilot program has been unable to get off the ground because of defendants' ability to opt out, according to an order signed by Chief Justice Stuart Rabner, which was made public Tuesday. "The requirement that a defendant consent to presentation of charges to a grand jury convening remotely (rather than in person) has inhibited bringing cases before those ready grand juries," Rabner said in the order.

The New Jersey Supreme Court on May 14 said grand juries would be conducted remotely in Bergen and Mercer counties, with jurors following proceedings from home over a computer or tablet, due to COVID-19 restrictions against gatherings of large groups. When it announced the program, the court said the remote grand jury would only hear cases in which the defendant agrees to that forum.

Judiciary spokesman Pete McAleer said in an email that "In order to bring a case before a virtual grand jury, we first sought agreement from the prosecutor, the defense attorney, and the defendant. We did not have agreement from all three in any one particular case."

The number of defendants detained pre-indictment in the state has risen from 1,400 to 1,540 since the program was first announced, Rabner's order said.

"The need to move forward with virtual grand juries will become more urgent as more defendants are detained pre-indictment and additional defendants on pretrial release await indictment," Rabner's order said.

Juries have been empaneled in the counties to carry out the pilot program and have been given special training as well as sworn in under a special supplement to the usual grand jury oath of secrecy.

Defense lawyers have expressed reservations about the remote grand jury concept, including concerns about a possible breach of confidentiality and the loss of in-person contact between the defendant, the defense lawyer and the witnesses.

"No one thinks it's a good idea," said Joseph Rem, a criminal defense lawyer in Hackensack. "This is a critical stage in our criminal process, designed to protect innocent people from false accusations. Grand juries often listen to stories and decide not to indict," said Rem. He said the loss of jurors' ability to see a witness' body language or rolling of the eyes would be lost if the proceedings are held online.

Rem said he would allow his client to take part in the virtual grand jury. But if the defendant were indicted, Rem said he would ask the judge to dismiss the indictment.

Paul Brickfield, a criminal defense lawyer in River Edge, said he thinks the pilot program could lead to more motions to dismiss an indictment. If his client were required to submit to a remote grand jury, he would expect to carefully review the transcript and audio tape to see if anything problematic occurred.

"It may end up creating more litigation," he said. The pilot program "is designed to move the process along but it could end up slowing it down. Defense lawyers will be obligated to examine the whole process."