State high court upholds virtual grand juries in criminal cases

New Jersey’s Supreme Court on Wednesday unanimously rejected a constitutional challenge to the use of virtual grand juries during the COVID-19 pandemic.

A defendant facing drug charges in Mercer County brought the challenge last year, arguing that the Supreme Court violated separation of powers doctrines by unilaterally authorizing the virtual format.

Omar Vega-Larregui’s case began with in-person grand jury proceedings in February 2020 but switched to virtual proceedings after the pandemic took hold.

Civil and criminal trials in New Jersey were suspended for several months last year. To address a backlog of thousands of cases, the state Supreme Court authorized virtual grand juries on a pilot basis in two counties last spring, By July, it extended the program to the whole state. They continue to be in use.

Attorneys argued to the Supreme Court the process is unfair because, among other problems, the virtual format makes it impossible to guarantee the secrecy of the proceedings, a hallmark of the grand jury system. They also said there were technical issues during Vega-Larregui’s grand jury proceedings that deprived him of a fair hearing.

In a 7-0 ruling Wednesday, Justice Barry Albin wrote that the virtual panels are a temporary measure to meet a public health emergency and are within the court’s authority. They rejected defense attorneys’ arguments that a lack of access to technology unconstitutionally excludes minority, poor and elderly potential jurors.

Through the end of January, more than 3,000 presentations had been made to virtual grand juries, with no incidents of hacking or other security compromises, Albin wrote. The state judiciary had provided more than 150 tablets to potential jurors who needed them.

If courts had kept in-person grand juries during the pandemic, Albin wrote, “it is not likely that vulnerable populations, such as the elderly and those with underlying conditions, would have appeared for service at the risk of their lives. In-person grand juries — not virtual grand juries — would have likely caused the underrepresentation decried by defendant.”

Individual defendants can still file challenges if they believe an error or defect in the process undermined the fairness of their proceeding, Albin added.