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A committee has studied the issue of virtual grand juries; two pilot counties are waiting to begin; and critics are skeptical. Let's consider a few points:    

• What is the issue? The Constitution guarantees defendants the right to indictment by a grand jury. Before a case may proceed to trial, defendants are entitled to have a grand jury of 23 citizens evaluate an abbreviated version of the evidence against them. If a majority of the grand jury finds there is probable cause and votes to indict, they return a "true bill," and the case proceeds. Otherwise, the grand jury returns a "no bill" and charges are dismissed. In some instances, the prosecutor may return to the grand jury. 

• What is the problem? Grand juries are an arm of the court, and they traditionally convene in person in courthouses. With the courts closed to large in-person gatherings, no grand juries have been able to sit since mid-March and 1,611 defendants now held in custody are awaiting grand jury action. Many more who have been released are also waiting for their case to move forward. Space will be limited as criminal trials and other in-person gatherings will need to be held according to social distancing guidelines. And as courthouses reopen in the months ahead, some grand jurors will be reluctant to return. 

• Why not meet in a gymnasium or large room outside the courthouse? Large gatherings have not been permitted for months. Plus, we need a solution that will continue until a vaccine is developed. School facilities will likely be unavailable come September, and it is unlikely that adequate space—in or out of courthouses—will be able to accommodate multiple grand juries that serve in all 21 counties. At some point, we also may consider convening in non-Judiciary facilities if they are confirmed available for a substantial period, and if security and solemnity can be maintained with persons dispersed throughout a large area.  

• What's the proposal? To conduct a pilot program in two counties that will convene virtual grand jury proceedings. The project would focus on a small number of cases that involve less serious offenses—third- and fourth-degree charges. Those matters typically involve a short presentation by a single law enforcement witness.  

• Don't we want grand jurors to be able to evaluate whether a witness is credible by looking the person in the face? Of course, we do. If grand juries meet in large rooms and follow social-distancing practices, some grand jurors will be seated more than 40 feet away from the witness. By comparison, grand jurors will be able to look directly at a witness' face—on a screen immediately in front of them—and assess each comment, movement, and gesture up close.  

• How can we be confident the process will be kept confidential? Only grand jurors would be able to log into virtual proceedings with electronic devices. Today, we rely on jurors to abide by an oath of secrecy that all grand jurors are sworn to follow; the same would be true for virtual proceedings. We have supplemented the standard grand jury charge and secrecy oath to specifically address the requirements of participation in a virtual proceeding.

• How do we know this can work? The Judiciary tested the process using mock grand jurors, prosecutors, and witnesses. The next step is to try it in real life and assess the process. To date, the Judiciary has conducted more than 35,000 other types of actual court events with more than 320,000 participants. The technology has worked well in a variety of settings from pretrial conferences to Supreme Court arguments.  

• What if the pilot project doesn't work well?  If IT staff can't fix problems that surface, the project will end.  

• What happens if the pilot project works? There may well be motions in individual cases that challenge the virtual process. Courts will decide them in due course, just as they now decide other challenges to individual indictments.

• What happens if we don't try? Hundreds more defendants will continue to wait to be charged by a grand jury. Well more than a thousand will wait behind bars; others will wait while under pretrial supervision and restrictions. All of them will live for an indefinite period of time with the prospect of future charges hanging over their heads. 

Anything other than a regular in-person grand jury proceeding may have limitations, but for a state that has been (and may continue to be) hard hit by COVID-19, we must explore the best immediate option for restarting our criminal justice process in a way that will enable a fair cross section of citizens to participate in the grand jury process.

Glenn A. Grant, J.A.D., is Acting Administrative Director of the Courts, at the Administrative Office of the Courts, in Trenton.