State v. Omar Vega-Larregui (085288) (Mercer County & Statewide)

• Court: Supreme Court of New Jersey
• Decided: April 28, 2021
• Docket: A-33-20
• Status: Published

Opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Omar Vega-Larregui (A-33-20) (085288)

Argued March 15, 2021 -- Decided April 28, 2021

ALBIN, J., writing for the Court.

As a temporary emergency response to the easy transmissibility of the deadly airborne coronavirus, the Supreme Court authorized grand jury presentations in a virtual format, first in a pilot program and later on a statewide basis. In this appeal, defendant Omar Vega-Larregui and various amici curiae organizations claim that the virtual grand jury format -- and therefore the lack of an in-person proceeding -- violates the right to a grand jury presentation and other constitutional provisions. They also claim that the Supreme Court does not have the constitutional authority to order temporary virtual grand jury presentations for the duration of the pandemic.

On March 9, 2020, Governor Philip Murphy declared a Public Health Emergency and State of Emergency in response to the COVID-19 pandemic. The Court canceled all new civil and criminal jury trials until further notice on March 12, 2020, and all grand jury sessions and the selection of new grand jury panels on March 17, 2020.

To keep the criminal and civil justice system functioning, by April 24, the Judiciary had turned to technology and conducted more than 12,000 virtual proceedings. The Court established the Working Group on Remote Grand Jury Operations to examine whether, and if so, how, grand jury proceedings could resume in a virtual format while in-person gatherings are suspended because of COVID-19. The Working Group recommended that grand jury operations resume in certain counties in a virtual format in a manner that upholds the solemnity and secrecy of those proceedings and safeguards the rights of defendants, victims, jurors, and the public.

On May 14, 2020, the Court issued an Order authorizing a virtual grand jury pilot program to begin in Bergen and Mercer Counties. The Order instructed that “[g]rand juries empaneled before March 16, 2020 and still within their term of service may reconvene in a virtual format.” It further directed that the standard grand jury charge would be supplemented by a special charge and an oath of secrecy adapted to the virtual format. The supplemental charge reminds the jurors of the gravity of their obligation and warns that, if they violate their oath of secrecy or any other rule governing the grand jury proceeding, they could be held in contempt and face “serious consequences,” including 1 potential fines and jail time. The May 14 Order also advised that the Judiciary would “provide restricted-use devices (laptops or tablets) and related items” to any grand juror who is “able to participate in virtual proceedings but requires technological support” and would give training to the grand jurors “on the virtual courtroom process.”

In June 2020, the Court expanded the two-county grand jury pilot program to include virtual grand jury selections and authorized virtual State Grand Jury proceedings. On July 24, 2020, the Court took the virtual grand jury pilot program statewide. In- person grand jury selection and sessions remain suspended.

As of January 29, 2021, the Judiciary had provided over 150 tablets (with broadband internet capacity when necessary) to allow potential jurors to participate in virtual grand jury selections and jurors to participate in virtual grand jury sessions. Any grand juror without access to a computer or tablet is provided one by the Judiciary. Jurors serving on State Grand Juries are instructed to interrupt or wave at their screens if they have any technical problems, and Deputy Attorneys General and grand jury staff monitor grand jurors’ screens to assist with any problems.

Judiciary staff, moreover, ensure that grand jurors comply with the secrecy requirements of virtual grand jury sessions. Before each session, a staff member checks in with the jurors, has them perform with their electronic devices a 360-degree scan of their environments to confirm the privacy of their locations, and reminds them to turn off their cell phones or other devices.

In August 2019, defendant was arrested and charged with three drug-related offenses and with two disorderly persons charges. A Superior Court judge placed defendant on pretrial release. On February 13, 2020, a twenty-three-person grand jury panel was selected. The grand jury convened in person for orientation and for three sessions in February and March. Further sessions were canceled due to the pandemic.

On June 18, 2020, the grand jury reconvened in a virtual format. Beforehand, the jury manager inquired of all of the grand jurors whether they had the capacity to fulfill their service in virtual sessions, and five grand jurors were given tablets with internet capacity to ensure their continued service. Judiciary staff then assisted all grand jurors with a Zoom trial run, and the grand jurors received further instructions at an orientation. Over three sessions in June and early July, they heard eight presentations.

On July 9, 2020, the grand jury met for its fourth Zoom session, at which the prosecutor presented defendant’s case. Before each virtual session, the grand jury staff conducted a check-in process with each juror. As part of that process, using their computers or tablets, grand jurors were required to perform a 360-degree scan of their location to assure staff of the privacy of their environment. In addition, at each session, the jurors were administered the supplemental oath of secrecy. 2 The Court reviews in detail the presentation of the case against defendant, including questions asked to confirm whether the jurors had questions or technical issues. After some questions, the grand jurors were asked to raise their hands; after others, a lack of response was treated as agreement. At certain points, people speaking were recorded as “unidentified speakers.” After deliberating, the grand jury indicted defendant on four counts. The grand jury foreperson conducted pre- and post-deliberation technology checks to ensure that the grand jurors had not experienced any technical problems that affected their ability to hear and/or observe the proceedings or their ability to deliberate and vote.

Defendant pleaded not guilty and later moved to dismiss the indictment on the basis that the virtual grand jury presentation did not “adhere to constitutional norms” and that the State failed “to present clearly exculpatory information” during the presentation. More particularly, defendant argued that this Court exceeded its constitutional rulemaking authority by convening a virtual grand jury. On January 13, 2021, in accordance with Rule 2:12-1, this Court certified directly for its review only defendant’s constitutional challenge to the grand jury presentation in the virtual format.

HELD: The Court has the constitutional authority to make rules and procedures for all courts of this state, including the grand jury; the Court’s authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic does not violate the State Constitution’s separation of powers. There is no support for the facial constitutional challenge to the temporary use of the virtual grand jury during the current public health crisis, and virtual grand jury proceedings do not facially violate the fundamental fairness doctrine. In individual cases where a defendant claims that an alleged error or defect undermined the fairness of the proceeding, a challenge may be mounted. But in this case, no error undermined the integrity of the grand jury proceeding; nor is there a basis for the dismissal of the indictment.

1. Article I, Paragraph 8 of the New Jersey Constitution guarantees that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury.” The Court traces the history of the right to a grand jury presentation and the roles that grand juries play in the criminal justice process. The Court’s temporary suspension of in-person grand juries and jury trials was a public health imperative, but that suspension delays the criminal justice process with serious implications for the accused, whether detained or released pretrial, and the State. The question is whether all of the essential attributes of the right to a grand jury presentation can be preserved through a virtual format so that the grand jury can function and fulfill its historic purpose in the midst of an unprecedented public health emergency. In answering that question, it must be remembered that the framers of our State Constitution, like the framers of the Federal Constitution, created a founding charter “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” See McCulloch v. Maryland, 17 U.S. 316, 415 (1819). (pp. 28-32) 3 2. The grand jury is a judicial, investigative body, serving a judicial function and is an arm of the court. In New Jersey, the Judiciary exercises supervisory authority over grand juries to ensure that grand jury proceedings are fundamentally fair. See N.J. Const. art. VI, § 2, ¶ 3. The Court’s constitutional administrative authority extends to the power to issue rules and directives governing the grand jury and cannot be circumscribed by legislation. Grand juries are also the subject of legislation that, in many instances, overlaps with the court rules, and the Court acts with restraint when such legislation advances a significant governmental purpose and does not interfere with the Court’s administration of the court system. Here, in authorizing grand juries to operate in a virtual format for a temporary period during an unprecedented public health emergency, the Court is exercising a quintessential judicial power that is not in any way in conflict with legislative enactments concerning the grand jury. Where a grand jury convenes is a matter of procedure; internet access and technological know-how are not qualifications for jury service, see N.J.S.A. 2B:20-1, in light of the Judiciary’s provision of internet access, equipment, and technological support to the jurors. (pp. 32-37)

3. Defendant and his supporting amici allege that the very nature of a virtual grand jury session is incompatible with the secrecy requirements mandated by Rule 3:6-7 and N.J.S.A. 2B:21-3. But one of the foundations of our jury system is that the jury is presumed to follow the trial court’s instructions. Grand jurors are given repeated reminders about the sanctity of the proceedings and serious penalties they would face for a violation of their oath of secrecy, and Judiciary staff monitor compliance. Defendant and amici have set forth no basis for concluding that virtual grand jurors are less trustworthy than other jurors. (pp. 37-39)

4. To establish a prima facie claim that the grand jury selection process violated the fair- cross-section requirement or the right to equal protection, a defendant must show substantial underrepresentation of a constitutionally cognizable group. Defendant and amici have provided no evidence that the grand jury in this case did not represent a fair cross-section of the community. Not only has the selection process remained largely unchanged, but the grand jurors here were selected when in-person grand juries were still in session. Had the Court not followed health-safety protocols and kept in place in- person grand juries during the pandemic, 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 here. New Jersey has not been alone in crafting temporary remedies -- consistent with constitutional rights -- to keep the criminal justice system moving as new cases mount and old cases stagnate; five of the seventeen other states with grand juries have acted likewise. (pp. 40-43)

5. That New Jersey used a pilot program to ensure the efficacy of virtual grand juries did not create an impermissible classification and advanced a legitimate constitutional objective, thus satisfying the rational-basis test for such a program. (pp. 44-45) 4 6. Virtual grand jury proceedings comply with the essential tenets of the fundamental fairness doctrine. Defendant and amici point out the various technological problems that can arise during a virtual grand jury proceeding -- or any virtual proceeding for that matter -- and claim that a virtual proceeding “does not capture all of the cues so vital to judging credibility.” But grand jurors are extensively trained to participate in virtual grand jury sessions and advised to report technical problems to Judiciary staff. And Judiciary staff and prosecutors patrol and monitor the virtual grand proceedings to detect and correct technological issues. As to credibility determinations, judges make them in remote proceedings in many contested matters, and the grand jury process is not a mini- trial where issues related to credibility are decided. Because the virtual process may not be perfect does not mean that it is not mostly effective or unconstitutional. Certainly, technological glitches or defects will require individually tailored solutions. A defendant will not be without a remedy if such problems render grand jurors not present or informed about the evidence during a virtual session. (pp. 45-49)

7. Turning to the virtual grand jury proceeding in this case, a review of the transcript leads the Court to conclude that, viewed in its entirety, the proceeding did not violate the fundamental fairness doctrine or defendant’s constitutional right to a fair grand jury presentation. At times, as in typical in-person grand jury presentations, the prosecutor relied on silence as an answer. That was offset here by the training the jurors received, the monitoring by Judiciary staff, and the foreperson’s pre-deliberation check. But in the future, to remove any doubt about a virtual grand juror’s response to a question, the prosecutor should require a clear indication for the record, such as an audible response or a showing of hands. As to comments by an “unidentified speaker” about whether the jurors could see the indictment, the record, the jurors’ experience, and the foreperson’s post-vote technology check refute the contention that those comments reveal that the jury could not see the indictment. Nevertheless, going forward all persons speaking on the record should identify themselves or be identified. Everyone participating in the virtual grand jury process should remember that the record must clearly reflect who is speaking and the responses to any questions. All in all, defendant received a grand jury hearing that comported with basic tenets of fundamental fairness and the constitutional right to a fair grand jury presentation. (pp. 49-52)

8. Virtual grand juries are a temporary measure invoked to meet an extraordinary, life- threatening public health crisis, and the Court reviews relevant statistics. (pp. 52-54)

The motion to dismiss the indictment is DENIED, and the matter is REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.

5 SUPREME COURT OF NEW JERSEY A-33 September Term 2020 085288

State of New Jersey,

Plaintiff-Respondent,

v.

Omar Vega-Larregui,

Defendant-Appellant.

On direct certification by the Supreme Court from the Superior Court, Law Division, Mercer County.

Argued Decided March 15, 2021 April 28, 2021

John S. Furlong argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong, on the brief).

Randolph E. Mershon, III, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Randolph E. Mershon, III, of counsel and on the brief).

Matthew S. Adams argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Fox Rothschild, attorneys; Matthew S. Adams, of counsel and on the brief, and Marissa Koblitz Kingman and Marc M. Yenicag, on the brief).

Brian J. Neary argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar

1 Association, attorneys; Kimberly A. Yonta, President, of counsel, and Brian J. Neary and Christopher J. Keating, on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

The Constitution must operate not just in the best of times, but also in

the worst of times. The framers of our Federal and State Constitutions

established a structure of government and system of justice to endure for the

ages -- even through crises and perils they could not have envisioned. The

fundamental rights guaranteed by our Constitution have been stress-tested

during a civil war, two world wars, an economic depression, and now a once-

in-a century pandemic.

The question in this case is whether, in the throes of the current

pandemic, we have been faithful to one of those rights provided in our State

Constitution -- that “[n]o person shall be held to answer for a criminal offense,

unless on . . . indictment of a grand jury.” N.J. Const. art. I, ¶ 8.

Beginning in March 2020, the public health threat of COVID-19 became

a dire reality for the residents of New Jersey. As of March 9, 2020, there were

eleven reported presumed positive cases of COVID-19 and no reported deaths

2 in this state. Just two months later, as of May 5, there were over 130,000

positive cases that resulted in at least 8,244 deaths and mounting

hospitalizations. The easy transmissibility of this deadly airborne coronavirus

led the Governor to exercise emergency powers to limit public gatherings and

the Supreme Court to issue public-safety Orders temporarily suspending jury

trials and grand jury presentations. Requiring grand jurors, particularly older

ones and those with underlying conditions, to appear in person in a forum

where social distancing was not practicable would have recklessly put at risk

the lives of those willing to perform their civic duty.

Without grand jury presentations, defendants subject to pretrial detention

or pretrial release would have been denied their right codified in Article I,

Paragraph 8 of the New Jersey Constitution. As a temporary emergency

measure, the Supreme Court authorized grand jury presentations in a virtual

format, first in a pilot program and later on a statewide basis.

Defendant Omar Vega-Larregui and various amici curiae organizations

claim that the virtual grand jury format -- and therefore the lack of an in-

person proceeding -- violates the right to a grand jury presentation and other

constitutional provisions. They also claim that the Supreme Court does not

have the constitutional authority to order temporary virtual grand jury

presentations for the duration of the pandemic.

3 The arguments advanced by defendant and amici are not supported by

the record in this case. Indeed, the defects attributed to the virtual format are

almost wholly based on supposition and speculation. To be clear, this Court

has the constitutional authority to make rules and procedures for all courts of

this state, including the grand jury, which is an arm of the court. Part three of

the Rules of Court extensively details the procedures governing grand juries .

Those procedures were adopted pursuant to this Court’s constitutional

rulemaking and supervisory authority. We reject the contention that this

Court’s authorization of a virtual format for the selection of grand jurors and

grand jury presentations during a lethal pandemic violates our State

Constitution’s separation of powers.

This Court has utilized technology to preserve, not to undermine, the

constitutional right of defendants to a grand jury presentation. The virtual

grand jury format -- a temporary measure to meet a public health emergency --

has not sacrificed any core principle animating the constitutional right to

indictment by grand jury. The selection of grand jurors for a virtual setting is

no different than for an in-person setting. Every grand juror who does not

have the technical capacity to participate is provided the necessary equipment

and training by the Judiciary. Defendant and amici have presented no

4 evidence that those selected for grand jury service in a virtual setting do not

represent a cross-section of the community.

The grand jurors in this case were drawn pre-pandemic, before the use of

virtual grand juries, and sat for a period in person before transferring to a

virtual format. Therefore, the general challenge to the virtual selection of

grand jurors is not even applicable here.

The Judiciary has closely monitored the administration of the virtual

format to ensure the integrity of the grand jury proceedings. We acknowledge

that errors sometimes will occur in court proceedings, including in a grand jury

presentation, whether in the in-person or virtual format. In individual cases

where a defendant claims that an alleged error or defect undermined the

fairness of the proceeding, a challenge may be mounted.

In the case before us, we do not see any error that undermined the

integrity of the grand jury proceeding; nor do we see a basis for the dismissal

of the indictment. Moreover, we do not find support for the facial

constitutional challenge to the temporary use of the virtual grand jury during

the current public health crisis. Accordingly, we hold that the presentation of

defendant’s case to a virtual grand jury did not violate his constitutional rights,

and we remand to the trial court for further proceedings.

5 I.

A.

On March 9, 2020, Governor Philip Murphy declared both a Public

Health Emergency and a State of Emergency in response to the COVID-19

pandemic -- a pandemic that, over the last year, has killed more than 22,500

residents of New Jersey and more than 560,000 persons in the United States.1

See Exec. Order No. 103 (March 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020).2

COVID-19 is a highly contagious and deadly virus that is spread airborne from

person to person, often by a cough, a sneeze, or even talking. It causes acute

respiratory illnesses and has led to countless hospitalizations, patients hooked

up to ventilators, and deaths -- and has left many survivors with long-term

unresolved health issues.

New Jersey was at the epicenter of the pandemic in the early days of the

outbreak. In the first two months after the issuance of the Governor’s first

executive order, more than 8,000 New Jersey residents had succumbed to

1 See N.J. Dep’t of Health, New Jersey COVID-19 Dashboard: Cases and Trends, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (last visited Apr. 21, 2021); Ctrs. for Disease Control & Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker (last visited Apr. 21, 2021). 2 Pursuant to N.J.S.A. 26:13-3(b), Governor Murphy has extended the Public Health Emergency each month since, most recently on April 15, 2021. See Exec. Order No. 235 (Apr. 15, 2021).

6 COVID-19, and hospitals were inundated with patients infected by the virus.

The Governor’s initial executive orders required the closure of schools, day -

care centers, and non-essential businesses, and curtailed large gatherings to

slow the spread of the virus. See, e.g., Exec. Order 107 (Mar. 21, 2017).

In response to this unprecedented public health crisis caused by the

person-to-person spread of the virus, this Court on March 12, 2020 canceled

all new civil and criminal jury trials until further notice, and on March 17

canceled all grand jury sessions and the selection of new grand jury panels. In

Omnibus Orders issued on March 27 and April 24, 2020, the Court continued

the suspension of grand jury empanelment dates and grand jury sessions, and

all new civil and criminal jury trials.

To keep the criminal and civil justice system functioning, by April 24,

the Judiciary had turned to technology and conducted more than 12,000 virtual

proceedings by video and telephone conferences, including motions, settlement

discussions, arraignments, and detention hearings. After issuing the April 24

Order, the Court established the Working Group on Remote Grand Jury

Operations (Working Group) “to examine whether, and if so, how, grand jury

proceedings could resume in a virtual format while in-person gatherings are

7 suspended because of COVID-19.”3 Sup. Ct. of N.J., Notice and Order

-- Supreme Court Authorization of Virtual Grand Jury Pilot Program, at 1-2

(May 14, 2020).

“The Working Group recommended that grand jury operations resume in

certain counties in a virtual format in a manner that upholds the solemnity and

secrecy of those proceedings and safeguards the rights of defendants, victims,

jurors, and the public.” Id. at 2. On May 14, 2020, the Court issued an Order

authorizing a virtual grand jury pilot program to begin in Bergen and Mercer

Counties.4 At the time, statewide, 1,400 defendants were detained pretrial in

county jails and many defendants were on pretrial release, all waiting for their

cases to be presented to a grand jury.

The Court’s May 14 Order instructed that “[g]rand juries empaneled

before March 16, 2020 and still within their term of service may reconvene in

a virtual format.” It further directed that the standard grand jury charge would

3 The Working Group was composed of representatives from the Attorney General’s Office and the Office of the Public Defender, designees of the County Prosecutors Association of New Jersey, the American Civil Liberties Union, the New Jersey State Bar Association, and the private defense b ar, as well as judges and court staff. 4 From March to May 14, 2020, New Jersey courts had conducted “more than 23,000 virtual proceedings involving more than 189,000 participants .” Sup. Ct. of N.J., Notice and Order -- Supreme Court Authorization of Virtual Grand Jury Pilot Program, at 1-2 (May 14, 2020). 8 be supplemented by a special charge and an oath of secrecy adapted to the

virtual format. The supplemental charge and supplemental oath of secrecy, in

relevant part, instruct grand jurors that they must (1) participate from a private

location and shield their computer or tablet from the view of others and, unless

alone, use headphones or earbuds so that others cannot overhear the

proceedings; (2) “not allow other persons to see, hear, or otherwise observe the

grand jury proceeding”; (3) advise the “prosecutor immediately if [they]

believe someone can see or hear the proceeding” or if they “have a technical

problem, such as loss of audio or video”; (4) not communicate with other

grand jurors except during deliberations; (5) not communicate or share

information with anyone, at any time or through any medium, about the grand

jury proceeding; and (6) not audio- or video-record, photograph, or broadcast

the proceedings, or allow anyone else to do so. 5

The supplemental charge reminds the grand jurors of the gravity of their

obligation and warns that, if they violate their oath of secrecy or any other rule

5 At the Court’s request, Acting Director of the Administrative Office of the Courts Judge Glenn A. Grant prepared the supplements to the jury charge and oath of secrecy.

9 governing the grand jury proceeding, they could be held in contempt and face

“serious consequences,” including potential fines and jail time. 6

The May 14 Order also advised that the Judiciary would “provide

restricted-use devices (laptops or tablets) and related items” to any grand juror

who is “able to participate in virtual proceedings but requires technological

support” and would give training to the grand jurors “on the virtual courtroom

process.”

The May 14 Order stated that the remote grand jury format would

proceed “only with the consent of the defendant.” It quickly became apparent,

however, that the consent requirement had “inhibited bringing cases before . . .

ready grand juries.” Additionally, in the three weeks preceding June 4, the

number of defendants detained pre-indictment had increased from 1,400 to

1,540. In view of the increasing number of criminally charged defendants

6 A judge gives the traditional charge and supplemental charge to the grand jury before it convenes for the first time in a virtual format. At each subsequent session, the prosecutor is expected to remind the grand jurors of the requirements of maintaining secrecy, preventing access by others, and never photographing, recording, broadcasting, or otherwise sharing records of the grand jury proceeding. The grand jurors are also advised again of the criminal consequences of violating the oath of secrecy.

A Directive was issued on September 30, 2020, clarifying the “operational requirements for administration of the supplemental grand jury charge and oath [of secrecy]” for grand jurors empaneled during the virtual phase.

10 detained or released and awaiting a grand jury presentation, on June 4, 2020,

the Court declared that remote grand jury sessions would proceed without a

defendant’s consent.

In June 2020, the Court expanded the two-county grand jury pilot

program to include virtual grand jury selections and authorized virtual State

Grand Jury proceedings. On July 24, 2020, the Court took the virtual grand

jury pilot program statewide, announcing that grand jurors in participating

counties would “be summoned for new grand jury selections starting on or

after September 21, 2020.” Over the next several months, Passaic and Atlantic

Counties joined the ranks of vicinages conducting virtual grand jury

proceedings.

By October 8, 2020, in-person grand jury sessions had been suspended

for six months and the number of defendants detained in county jails awaiting

a grand jury presentation had climbed to more than 2,700 (a number excluding

defendants on pretrial release) -- and there was no possibility of a presentation

except in those counties conducting virtual grand juries. That day, the Court

“announce[d] a comprehensive plan to ensure that all counties have a grand

jury panel equipped and ready to convene in a virtual format” by December 1,

2020.

11 We also authorized Assignment Judges and County Prosecutors to

convene in-person grand juries in accordance with public safety guidelines and

Judiciary policies. That plan ran aground just a few weeks later as a second

deadly wave of COVID-19 swept over New Jersey and the nation, rendering

in-person grand jury sessions a public health hazard. Accordingly, on

November 16, 2020, the Court again suspended in-person grand jury

proceedings and directed that all grand jury panels continue to convene in a

virtual format.

In-person grand jury selection and sessions remain suspended as of this

Court’s most recent Omnibus Order. Sup. Ct. of N.J., Eleventh COVID-19

Omnibus Order (Mar. 23, 2021). Virtual grand juries are now convened in all

twenty-one counties and have returned indictments, no-bills, and partial no-

bills in the course of more than 6,000 presentations.

B.

Certifications submitted by the Judiciary’s statewide Manager of Jury

Programs Brian McLaughlin; the Mercer Vicinage’s Jury Manager Dalia Seidl;

and Deputy Attorney General and Acting Attorney Supervisor of the State

Grand Jury Mallory Shanahan collectively aver that (1) no person summoned

to serve on a virtual grand jury is excluded because of lack of the necessary

technology; (2) grand jurors in need of technological equipment are provided

12 with tablets by the Judiciary for temporary use; (3) all grand jurors are trained

to fully and effectively participate in the virtual format; (4) virtual sessions are

closely monitored to ensure that grand jurors comply with the grand jury’s

secrecy requirements; and (5) Judiciary staff provide assistance if grand jurors

encounter technical difficulties hearing or participating in a grand jury

session.7

According to McLaughlin, the “summoning of a pool of jurors for a

[virtual] grand jury selection has remained largely unchanged” during the

pandemic. Prospective grand jurors complete a standard qualification

questionnaire either online or in hard copy; Assignment Judges or their

designees address requests for disqualification or rescheduling of service; and

requests for excusal because of financial hardship or childcare responsibilities

are handled in the same standardized manner. “No juror has been excluded

from selection or from serving on a virtual grand jury based on [a] lack of

technology.”

Vicinage Jury Management and information technology (IT) staff have

provided “individualized training to summoned and selected jurors to facilitate

7 In their briefs to this Court, the State attached McLaughlin’s and Seidl’s certifications and the Attorney General attached Shanahan’s certification.

13 their participation in remote proceedings using Zoom.” 8 And all qualified

jurors are provided the necessary technology to serve on virtual grand juries.

As of January 29, 2021, the Judiciary had provided over 150 tablets

(with broadband internet capacity when necessary) to allow potential jurors to

participate in virtual grand jury selections and jurors to participate in virtual

grand jury sessions. Also, as of that date, more than 1,000 grand jurors were

serving on forty-five county-level virtual grand juries statewide, and more than

3,000 presentations had been made to virtual grand juries. McLaughlin

reported that no virtual grand jury selection or session had been breached or

hacked, or had its technical security otherwise compromised.

Judiciary staff, moreover, ensure that grand jurors comply with the

secrecy requirements of virtual grand jury sessions. Before each session, a

staff member checks in with the jurors, has them perform with their electronic

devices a “360-degree scan of their environment[s]” to confirm the privacy of

their locations, and reminds them to turn off their cell phones or other devices.

Deputy Attorney General Shanahan, the Acting Attorney Supervisor of

the State Grand Jury since the shift to virtual proceedings, attested that the

procedures identified by McLaughlin in his certification are largely followed

8 Zoom is a video-conferencing platform. See Zoom, https://explore.zoom.us/meetings (last visited Apr. 20, 2021).

14 in State Grand Jury virtual selections and sessions. “No one is excused for

reasons relating to technological access or capability,” and any grand juror

without access to a computer or tablet is provided one by the Judiciary. Jurors

serving on State Grand Juries “are instructed to interrupt or [wave] at their

screens if they have any technical problems,” and Deputy Attorneys General

and grand jury staff monitor grand jurors’ screens to assist with any problems.

As of February 12, 2021, the Division of Criminal Justice had presented

more than sixty cases to virtual State Grand Juries, cases “ranging from

straightforward drug and weapons charges, to multi-defendant Human

Trafficking cases.” Shanahan noted that jury pool statistics for the number of

potential jurors available for virtual State Grand Juries are “not significantly

different” than the number for in-person State Grand Juries during pre-

pandemic times.

In Mercer County, Jury Manager Seidl certified that “[n]o juror has been

unable to participate in virtual selection or virtual sessions based on a lack of

technology” and that twenty-one grand jurors were provided the required

technology to participate. She described an “isolated instance early on in the

process” where one grand juror who was having trouble with her audio asked

her grandson for help “prior to the start of the session. The Assistant

Prosecutor conducting the session immediately noticed the presence of the

15 grandson, and directed that he leave the room, which he did.” As of February

10, 2021, virtual grand juries in Mercer County had heard 208 presentations.

II.

On August 22, 2019, a City of Trenton police detective arrested and

charged defendant Omar Vega-Larregui in a complaint-warrant with third-

degree possession of a controlled dangerous substance (cocaine), N.J.S.A.

2C:35-10(a)(1); second-degree possession of cocaine with intent to distribute,

N.J.S.A. 2C:35-5(b)(2); second-degree possession of cocaine with intent to

distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a); and the

disorderly persons offenses of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and

obstructing a lawful investigation, N.J.S.A. 2C:29-1. Two days later, a

Superior Court judge placed defendant on pretrial release.

On February 13, 2020, the Mercer County Criminal Presiding Judge

selected a twenty-three-person grand jury panel in the Mercer County

Courthouse. The grand jury convened in person for orientation on February

20, 2020 and for sessions on February 27, March 5, and March 12, 2020.

Further sessions were canceled due to the pandemic until this Court’s

introduction of the virtual grand jury pilot program.

16 On June 18, 2020, the grand jury reconvened in a virtual format. Before

doing so, however, Dalia Seidl, Jury Manager for the Mercer Vicinage,

inquired of all of the grand jurors, by telephone or email, whether they had the

capacity to fulfill their service in virtual sessions. Only one grand juror asked

to be excused, and that was because she had moved to another county. Five

other grand jurors expressed a “willingness to serve but indicated that they

lacked reliable personal technology to participate in virtual sessions.” To

bridge the digital divide, the Judiciary made available to those five grand

jurors tablets with internet capacity to ensure their continued service.

Judiciary staff then assisted all grand jurors with a Zoom trial run. On

May 20, 2020, the Judiciary also conducted an orientation session and required

each grand juror “to demonstrate the capacity to use the technology, to see and

hear the proceedings, to communicate with [Judiciary] staff and each other,

and to indicate if they experienced any difficulties or otherwise required

assistance.” In addition, the grand jurors were given technical instructions and

contact information for the Mercer Vicinage jury and IT staff if they

encountered any technical problems. At the orientation session, the Criminal

Presiding Judge administered to the panel the supplemental grand jury charge

and supplemental oath of secrecy.

17 The grand jury convened for virtual Zoom sessions on June 18, June 25,

and July 2, 2020 and heard eight presentations during which it returned

indictments and partial no-bills.9 On July 9, 2020, the grand jury met for its

fourth virtual Zoom session, at which the prosecutor presented defendant’s

case.

Before each virtual session, the grand jury staff conducted a check-in

process with each juror. As part of that process, using their computers or

tablets, grand jurors were required to perform a 360-degree scan of their

location to assure staff of the privacy of their environment. In addition, at

each session, the grand jurors were administered the supplemental oath of

secrecy.

During the virtual session in defendant’s case, Jury Manager Seidl and

three other grand jury staff members were present to ensure that no technical

issues arose during the proceeding.10 At the beginning of the session, the

9 “When a grand jury authorizes an indictment, it returns a ‘true bill.’ When it declines to indict, it returns a ‘no bill.’” State v. Shaw, 241 N.J. 223, 231 n.1 (2020) (quoting Wayne R. LaFave et al., 3 Criminal Procedure § 8.2(a) (4th ed. updated 2019)). 10 At this proceeding, only four grand jurors required the use of electronic devices provided by the Judiciary.

18 prosecutor asked the grand jurors to express “[b]y a show of hands” whether

any recognized the names of Detective Stephen Szbanz, the State’s sole

witness, or defendant Omar Vega-Larregui, and whether any were “unable to

remain fair and impartial.” This exchange followed:

PROSECUTOR: I do not see any hands raised in the affirmative. And, at this point, everybody can hear and see me clearly, correct?

(No audible response)

PROSECUTOR: Okay. I see you nodding your heads indicating yes. Okay. . . . Does any member of the grand jury wish to have any portion of that law re-read?

PROSECUTOR: I do not see any hands raised. . . .

The prosecutor then read the proposed indictment and asked the grand

jurors whether they had any questions before she brought in the witness.

When there was no audible response, the prosecutor stated, “No? Okay.”

Detective Szbanz testified that on August 22, 2019, he was in uniform

and on patrol in an unmarked vehicle when he observed a pickup truck parked

on a sidewalk, blocking a number of garages. He approached several men

standing nearby, and defendant stated that the pickup truck was his. The

detective requested the vehicle’s documents, and defendant proceeded to

unlock the truck’s passenger door, open the glove compartment, and shuffle 19 through papers. Defendant was visibly nervous, his hands were shaking , and

he failed to produce any paperwork. When defendant reached underneath the

passenger seat, the detective told him to stop, fearing he might reach for a

weapon. Defendant did not obey the command. At that moment, Detective

Szbanz also observed a sandwich bag on the floorboard containing a suspected

controlled dangerous substance.

The detective pulled defendant from the truck and attempted to place

him under arrest, but defendant resisted. With the assistance of responding

officers, defendant was subdued and taken into custody. The sandwich bag

with the suspected drugs was recovered and submitted to the New Jersey State

Police Laboratory for analysis. The substance inside the bag tested positive

for 29.982 grams (more than an ounce) of cocaine. Based on the packaging

and amount of the cocaine, Detective Szbanz offered his opinion that

defendant possessed the drugs with the intent to distribute. The detective also

indicated that defendant possessed the cocaine within 500 feet of a public park.

About halfway through the prosecutor’s questioning of the detective, the

prosecutor asked if the grand jurors could hear clearly. When there was no

audible response, the prosecutor said, “Okay. Good,” and proceeded.

20 At the conclusion of his testimony, the detective exited from the virtual

grand jury room. The prosecutor then made the following inquiries of the

grand jurors:

PROSECUTOR: Okay. Do any members of the grand jury have any questions for the witness?

PROSECUTOR: Any questions on the law?

PROSECUTOR: Okay. So the State is requesting a no bill on the charge of resisting arrest.

UNIDENTIFIED SPEAKER: And if nothing further, the foreperson can ask if there was any technical.

PROSECUTOR: You’re muted, Michelle. You’re saying something. I can’t hear you.

THE FOREPERSON: All right. Did anyone have any technical issues with hearing this case?

THE FOREPERSON: No. Okay.

UNIDENTIFIED SPEAKER: Okay. I’m going to share the screen. Can everyone see the indictment?

GRAND JURORS: No.

UNIDENTIFIED SPAKER: How about now?

21 GRAND JUROR: No.

UNIDENTIFIED SPEAKER: No? Okay? Let me see.

UNIDENTIFIED SPEAKER: There we go.

UNIDENTIFIED SPEAKER: Yeah, but that’s not it, though. Was that it? How’s that, do you see it?

UNIDENTIFIED SPEAKER: Yup.

UNIDENTIFED SPEAKER: Okay. All right . . . . No other questions or concerns?

UNIDENTIFIED SPEAKER: No? Okay.

An “unidentified speaker” reminded the grand jurors that they were not

to speak with anyone, even friends or family, about the grand jury hearing and

that any unauthorized disclosure of information was “a crime punishable by up

to 18 months [of] imprisonment.” The grand jury then proceeded to the virtual

“deliberation room” and returned a four-count indictment, charging defendant

with third-degree possession of cocaine, second-degree possession of cocaine

with intent to distribute, second-degree possession of cocaine with intent to

22 distribute within 500 feet of a public park, and fourth-degree obstructing the

administration of law or other governmental function, N.J.S.A. 2C:29-1(b).11

The grand jury session ended with the grand jury foreperson asking,

“Did anyone have any technical issues with that vote?” After there was no

audible response, the foreperson said, “No,” and an unidentified speaker also

said, “No.”

In a certification, Jury Manager Seidl later averred that the foreperson

conducted a “pre-deliberation technology check” with the grand jurors to

ensure that they had not “experienced any technical problems that affected

their ability to hear and/or observe the proceedings” and a “post-vote

technology check” to ensure that they did not have “any technical problems

that affected their ability to deliberate and vote.”

C.

Defendant entered a plea of not guilty to the charges in the indictment.

On November 10, 2020, defendant filed a motion in the Law Division to

dismiss the indictment on the basis that the virtual grand jury presentation did

not “adhere to constitutional norms” and that the State failed “to present

clearly exculpatory information” during the presentation. More particularly,

11 The prosecutor was not present in the virtual deliberation room.

23 defendant argued that this Court exceeded its constitutional rulemaking

authority by convening a virtual grand jury.

Defendant invited the Association of Criminal Defense Lawyers of New

Jersey (ACDL) to intervene as amicus curiae, given the statewide

constitutional implications of the virtual grand jury format. With the consent

of the State and defendant, the Law Division granted the ACDL leave to

participate as amicus curiae and to address defendant’s motion challenging

“the constitutionality of virtual grand juries.” Defendant indicated that he

would join the arguments presented by the ACDL.

D.

On January 13, 2021, in accordance with Rule 2:12-1, this Court

certified directly for its review only defendant’s constitutional challenge to the

grand jury presentation in the virtual format. The Court allowed the ACDL to

retain its amicus status. The Court also granted the Attorney General of New

Jersey and the New Jersey State Bar Association leave to appear as amici

curiae.

III.

Defendant, the ACDL, and the State Bar Association -- like the State and

the Attorney General -- have filed separate briefs but advance many of the

24 same arguments. To avoid repetition, for the most part, we present their

respective arguments collectively.

Defendant and amici contend that the right to a fair grand jury

presentation guaranteed by our State Constitution is violated when an

indictment is returned by a grand jury performing its duties virtually. In the

virtual format, they claim, the oath of grand jurors alone is not sufficient to

assure the secrecy of grand jury proceedings because the jurors are

participating from their homes or other private locations and may -- despite

instructions not to do so -- conduct their own factual or legal research using

smart phones, record the proceedings, or allow others to have access to the

hearing itself.

Defendant and amici also assert that virtual grand juries will not

represent a fair cross-section of the community because minority, poor, and

elderly populations are less likely to have access to internet devices, thereby

creating an intolerable “digital divide.” They maintain that technological

problems arising from the virtual format are rife and undermine the integrity of

the grand jury presentation, as evidenced in this case by “unidentified

speakers,” the acceptance of “no audible response” as a silent assent to a

question, and the possibility that individual grand jurors had connectivity

25 issues or did not know how to unmute to pose a question or raise an issue. The

virtual presentation, they profess, denies grand jurors a meaningful opportunity

to participate in the hearing.

The ACDL separately asserts that defendant’s equal protection rights

were violated by the Judiciary “selectively implementing” the virtual grand

jury program in only two counties initially. The ACDL reasons that defendant

was singled out for disparate treatment when his case was presented for

indictment when other cases, including those of detained defendants, were not.

The ACDL also faults this Court for overstepping its constitutional rulemaking

authority and breaching the separation of powers by adding to the legislative

qualifications for grand juror service the capacity to remotely participate in

Last, the State Bar Association and the ACDL call on this Court to

declare a moratorium on grand jury proceedings until they can return to an in-

person format.

In contrast, the State and amicus Attorney General (collectively, State)

submit that the virtual grand jury -- a response to a life-threatening pandemic

-- has kept the criminal justice system in operation and honored the dictates of

our State Constitution and notions of fundamental fairness. The State

26 emphasizes that safeguards have ensured the integrity of the virtual grand jury

process: grand jurors are trained in the technology needed to participate in

virtual proceedings; they are advised that a violation of their oath of secrecy

will lead to criminal sanctions; and they are monitored by Judiciary staff so

that improper access to proceedings and technical glitches do not occur.

The State rejects defendant’s presumption that grand jurors cannot be

expected to obey their oath to keep grand jury proceedings secret or to abstain

from using electronic devices to conduct private research and investigations.

According to the State, the argument that jurors will defy their oaths is based

on nothing more than speculation and has no factual support.

The State also asserts that no evidence in the record suggests that the

virtual grand jury selection process does not produce a fair-cross section of the

community or that a constitutionally cognizable group has been excluded from

participating. The State contends that no juror has been excluded from serving

based on a lack of technology and that, in the present case, the Judiciary

provided five members of the grand jury tablets to participate in the virtual

sessions.

In addition, the State insists that no technical issues arose during the

grand jury presentation in this case that would place in question the fairness of

the proceedings. It also maintains that the grand jury is an arm of the court,

27 and therefore this Court exercised its constitutional rulemaking authority in

implementing the virtual format.

Last, the State denies that the presentation of defendant’s case to a

virtual grand jury in a two-county pilot program before the program was

extended statewide and before the cases of some detained defendants violated

defendant’s right to equal protection.

IV.

In addressing the facial constitutional challenge to virtual grand juries

and the specific challenge to the virtual grand jury presentation in this case, we

begin with Article I, Paragraph 8 of the New Jersey Constitution. That

provision guarantees that “[n]o person shall be held to answer for a criminal

offense, unless on the presentment or indictment of a grand jury.” N.J. Const.

art. I, ¶ 8.

An accused’s right to a grand jury presentation has deep roots in the

English common law, long predating the adoption of New Jersey’s first

Constitution in 1776 and the United States Constitution in 1787. See State v.

Shaw, 241 N.J. 223, 235-36 (2020) (detailing the historical development of the

grand jury). The right to a grand jury presentation was guaranteed by New

Jersey’s 1776 Constitution, through its general adoption of the English

28 common law, and by the Fifth Amendment of the Federal Constitution.12 Id. at

237; see also State v. Rockafellow, 6 N.J.L. 332, 339 (Sup. Ct. 1796)

(“Without a legal presentment, no man can, under our administration of the

laws, be tried for any heinous offence . . . .”), overruled in other part, In re

Pub. Highway, 22 N.J.L. 293 (Sup. Ct. 1849). The right to a grand jury

presentation in the current New Jersey Constitution first appeared in similar

language in Article I, Section 9 of the 1844 Constitution. Bd. of Health of

Weehawken Twp. v. N.Y. Cent. R.R. Co., 10 N.J. 294, 304 (1952).

To this day, the grand jury “occupie[s] a high place as an instrument of

justice in our system of criminal law.” State v. Del Fino, 100 N.J. 154, 165

(1985). The grand jury fulfills the dual purpose “of determining if there is

probable cause to believe that a crime has been committed and of protecting

citizens against unfounded criminal prosecutions.” Ibid. (quoting Branzburg v.

Hayes, 408 U.S. 665, 686-87 (1972)). “The indictment requirement of Article

1, Paragraph 8, is a constitutional protection that enhances the integrity of the

12 The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const. amend. V. That provision of the Fifth Amendment does not apply to the states, however. See Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). Indeed, most states have abandoned the use of grand juries and institute charges by way of information. See Shaw, 241 N.J. at 237; see also Wayne R. LaFave et al., 4 Criminal Procedure § 15.1(d) (4th ed. updated 2020).

29 charging process,” In re Grand Jury Appearance Request by Loigman, 183 N.J.

133, 139 (2005), and infuses our system of justice “with a democratic ethos”

because ordinary citizens serve as grand jurors, ibid. (quoting State v. Fortin,

178 N.J. 540, 638 (2004)).

A grand jury presentation, however, is not a trial. The accused has no

right to appear before the grand jury or participate in the grand jury process.

See Robert Ramsey, Criminal Practice and Procedure, 31 N.J. Practice Law

Series § 21.7 (2021). Unlike at a trial, a defendant has no right to present

evidence or confront the witnesses against him at a grand jury proceeding. See

ibid.; see also Loigman, 183 N.J. at 143.

Although the language of Article I, Paragraph 8 does not speak of the

right to an in-person grand jury presentation, those who drafted that

constitutional provision and the same provision in the 1844 Constitution

obviously presumed that grand jurors would meet together in the same room.

They likely did not conceive of the technology that today allows for virtual

telemedicine examinations, virtual classrooms, or virtual grand juries. They

also did not likely foresee the lethal effects of an airborne virus that would kill

more than a half-million Americans and that would call for a public health

response requiring, to the extent possible, personal isolation to stop the spread

of the deadly pandemic.

30 This Court’s temporary suspension of in-person grand juries and jury

trials was a public health imperative -- a step necessitated to protect jurors,

prosecutors, and court staff from potential serious illness and death. The

suspension of grand juries, however, delays the criminal justice process with

serious implications for the accused, whether detained or released pretrial, and

the State. Suspension of grand juries means that some detained defendants,

whose charges might be dismissed by the grand jury, will remain incarcerated

for longer periods than otherwise necessary. See, e.g., Haley v. Bd. of

Review, ___ N.J. ___, ___ (2021) (slip op. at 4) (noting that the defendant

spent two months in custody until his charges were dismissed by a grand jury).

The right of the accused to a speedy trial is also deferred -- and no doubt some

will argue violated -- by not keeping grand juries in session.

The State, moreover, has an interest in securing testimony while the

memories of witnesses are fresh and in convening investigative grand juries

with the power to subpoena witnesses to ferret out criminal activities -- and in

bringing justice to victims with all due speed.

When the Court entered its first Order temporarily suspending grand jury

sessions, it could not know the duration of the pandemic, the death toll it

would reap, or whether an effective vaccine or treatment would be developed

within a year or much longer. Confronting the Court was whether the

31 Constitution required a shutdown of the criminal justice system for an

indeterminate period while arrests continued and detentions climbed.

The question is whether all of the essential attributes of the right to a

grand jury presentation can be preserved through a virtual format so that the

grand jury can function and fulfill its historic purpose, in the way intended by

the drafters of our Constitution, in the midst of an unprecedented public health

emergency. In answering that question, we must remember that the framers of

our State Constitution, like the framers of the Federal Constitution, created a

founding charter “intended to endure for ages to come, and consequently, to be

adapted to the various crises of human affairs,” see McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 415 (1819) -- a charter capable of adapting “to a

future that [could] only be ‘seen dimly,’ if at all,” see NLRB v. Noel Canning,

573 U.S. 513, 534 (2014) (quoting McCulloch, 17 U.S. at 415).

We begin with an indisputable legal principle: “[t]he grand jury is a

judicial, investigative body, serving a judicial function” and “is an arm of the

court.” Loigman, 183 N.J. at 141; State v. Haines, 18 N.J. 550, 557 (1955)

(“The grand jury, at common law, is an arm of the court and acts for the court

under which it is organized, and its proceedings are regarded as proceedings in

the court.” (quoting O’Regan v. Schermerhorn, 25 N.J. Misc. 1, 19-20 (Sup.

32 Ct. 1946))). Indeed, “[n]ot only is the grand jury an arm of the court in New

Jersey, but the Judiciary also exercises supervisory authority over grand juries”

to ensure that grand jury proceedings are fundamentally fair. Shaw, 241 N.J.

at 242.

Our supervisory authority over the grand jury derives from the New

Jersey Constitution, which provides that “[t]he Supreme Court shall make rules

governing the administration of all courts in the State and, subject to the law,

the practice and procedure in all such courts.” N.J. Const. art. VI, § 2, ¶ 3.

The Constitution also designates the Chief Justice as the “administrative head

of all the courts in the State.” Id. § 7, ¶ 1. “Those two provisions give the

Chief Justice and the Supreme Court sweeping authority to govern their own

house,” In re P.L. 2001, Chapter 362, 186 N.J. 368, 379 (2006), a house that

includes the grand jury.

Our “Court’s administrative authority is ‘far-reaching’ and ‘encompasses

the entire judicial structure [as well as] all aspects and incidents related to the

justice system,’” including “‘all facets of the internal management of our

courts.’” Id. at 381 (alteration in original) (first quoting Knight v. City of

Margate, 86 N.J. 374, 387 (1981); and then quoting Lichter v. County of

Monmouth, 114 N.J. Super. 343, 349 (App. Div. 1971)). That authority

extends to the power to promulgate rules and issue directives governing the

33 grand jury. Ibid.; see also Haines, 18 N.J. at 558-59 (affirming the Court’s

power to adopt a rule concerning “the continuance of terms of a grand jury”).

Because of the constitutional power Article VI vests in the Supreme Court, its

“administrative rulemaking authority cannot be circumscribed by legislation .”

In re P.L. 2001, 186 N.J. at 381.

The New Jersey Rules of Court set forth comprehensive guidelines and

procedures governing almost every aspect of the grand jury process. R. 3:6-1

to -11. Those Rules cover details regarding the summoning of the grand jury;

the making of objections to the array of the grand jury or individual grand

jurors; the supervision and charging of the grand jury; the appointment of a

foreperson and deputy foreperson; the duties of the clerk of the grand jury; the

persons who may be present during grand jury proceedings; how a record and

transcript are to be made and retained; the secrecy of grand jury proceedings;

the finding and returning of indictments and no-bills and the finding and

returning of presentments; the discharging of a grand jury and continuance of a

grand jury’s term; and the empanelment and supervision of the State Grand

Jury. Ibid.

We acknowledge that county grand juries and the State Grand Jury are

also the subject of legislation that, in many instances, overlaps with our court

rules. See N.J.S.A. 2B:21-1 to -10 (laws pertaining to county grand juries);

34 N.J.S.A. 2B:22-1 to -9 (laws pertaining to the State Grand Jury). The

Legislature, however, has spoken on topics not covered by our Court Rules,

such as setting forth the qualifications for service on a grand jury, N.J.S.A.

2B:20-1; the oath to be taken by grand jurors, N.J.S.A. 2B:21-3; and the

criminal penalty for purposely disclosing information concerning a grand jury

proceeding, N.J.S.A. 2B:21-10. Some aspects of the overall legislation are

clearly procedural and some substantive. It is not uncommon for the Judiciary

and Legislature to share spheres of responsibility in areas of mutual concern,

as exemplified by the adoption of court rules and legislation regarding

evidence rules, e.g., State v. Byrd, 198 N.J. 319, 342 (2009), and the Pretrial

Intervention Program, e.g., State v. Johnson, 238 N.J. 119, 128 (2019).

In exercising our constitutional supervisory authority over the courts, we

may “permit or accommodate the lawful and reasonable exercise of the powers

of other branches of government even as that might impinge upon the Court’s

constitutional concerns in the judicial area.” Knight, 86 N.J. at 391. “The

purpose of the separation of powers doctrine is not to create three ‘watertight’

governmental compartments, stifling cooperative action among the” three

branches of government. In re P.L. 2001, 186 N.J. at 379. Thus, we act with

restraint when legislation, touching on the judicial sphere, advances “a

significant governmental purpose” and does “not interfere with the Supreme

35 Court’s administration of the court system.” Id. at 384 (quoting Knight, 86

N.J. at 391-93, 394-95).

Here, in authorizing grand juries to operate in a virtual format for a

temporary period during an unprecedented public health emergency, the Court

is exercising a quintessential judicial power that is not in any way in conflict

with legislative enactments concerning the grand jury. We reject the ACDL’s

argument that this Court’s rulemaking authority has tread on a “field of the

substantive law” reserved to the Legislature. See Winberry v. Salisbury, 5 N.J.

240, 248 (1950). We also reject the ACDL’s more particularized claim that

service on a virtual grand jury requires a juror qualification at odds with

N.J.S.A. 2B:20-1.

N.J.S.A. 2B:20-1 sets forth the qualifications for jury service: age,

citizenship, and residency requirements; the ability to read and understand the

English language; lack of an indictable criminal conviction; and lack of a

mental or physical disability that would prevent service as a juror. The ACDL

raises the illusory issue that the Court has made “reliable internet access,

technology, and technological know-how” a new “extra-statutory”

qualification for grand jury service.

First, where the grand jury convenes -- customarily in a courthouse -- is

clearly a matter of procedure. See generally R. 1:2-1. Under the emergent

36 circumstance prompted by the pandemic, the grand jury temporarily convenes

in a virtual format. Second, the record plainly reveals that “[n]o juror has been

excluded from selection or from serving on a virtual grand jury based on lack

of technology.” The Judiciary provides not only tablets with broadband

internet capacity to grand jurors who do not have the available technology, but

also technical assistance in setting up and using the tablet. In this case, the

Judiciary made available tablets to five grand jurors who indicated a

willingness to serve but lacked reliable personal technology to participate in a

virtual proceeding. All grand jurors, moreover, receive training to participate

in virtual proceedings using Zoom. Providing tablets to grand jurors -- like

providing interpreters for non-English speakers and listening devices to the

hearing impaired -- is akin to other accommodations afforded by the Judiciary

so that all can participate and have equal access to the courthouse.

Whatever digital divide existed has been bridged by the Judiciary’s

provision of the necessary technology and technological know-how to grand

jurors.

Defendant and his supporting amici allege that the very nature of a

virtual grand jury session is incompatible with the secrecy requirements

mandated by our Court Rules. See R. 3:6-7 (providing that “the requirement

37 as to secrecy of proceedings of the grand jury shall remain as heretofo re” and

that all grand jurors “shall be required to take an oath of secrecy before their

admission” to a grand jury session); see also N.J.S.A. 2B:21-3 (requiring grand

jury members to swear or affirm that they “will keep secret the proceedings of

the grand jury”). To be sure, “the proper functioning of our grand jury system

depends upon the secrecy of grand jury proceedings.” Douglas Oil Co. of Cal.

v. Petrol Stops Nw., 441 U.S. 211, 218 (1979).

“One of the foundations of our jury system is that the jury is presumed

to follow the trial court’s instructions.” State v. Burns, 192 N.J. 312, 335

(2007). The premise of defendant’s and amici’s argument is that virtual grand

jurors cannot be trusted to obey their oaths or follow instructions, even on

penalty of severe sanctions. In effect, they urge that we discard the

presumption that virtual grand jurors will act in accordance with their lawful

duties. Because defendant and amici have no sound evidence to support their

premise of virtual grand juror irresponsibility, they have resorted to

speculation and hypothetical scenarios.

Defendant and amici hypothesize that grand jurors -- in the privacy of

their homes -- will do online research with their smartphones, surreptitiously

record the proceedings, talk to their families or friends about the case, and

perhaps give unauthorized access to the virtual grand jury room. They give

38 little credit to the repeated reminders given to the grand jurors about the

sanctity of the proceedings and serious penalties they would face for a

violation of their oath of secrecy. See N.J.S.A. 2B:21-10 (stating that

unauthorized disclosures may be punishable as a fourth-degree crime). Nor do

they fully take into account the diligent efforts by Judiciary staff to monitor

compliance, such as requiring jurors to perform a 360-degree scan of their

location with their electronic devices.

In the end, there is no perfect system of verification, and we must rely

on the good faith of all grand jurors and all trial jurors to follow instructions

and obey their oaths -- and in those instances when violations occur, hold the

offending jurors accountable. We cannot guarantee that a petit juror during a

trial will not go home and do research or speak to a spouse or a friend about a

case. We cannot guarantee that a juror will not smuggle an audio recording

device into the grand jury room or go home and reveal the names of the

witnesses and target of the investigation. We presume that those jurors will

follow instructions and obey their oaths. Our confidence in our system of

justice is proportionate to our faith in those jurors.

Defendant and amici have given this Court no basis -- other than utter

conjecture -- for concluding that virtual grand jurors are less trustworthy and

less honorable than other grand jurors and petit jurors.

39 D.

1.

Likewise, defendant’s and amici’s argument that a virtual grand jury

does not represent a cross-section of the community is based wholly on

supposition. They have provided no evidence to contradict the fact-based

certifications in the record that virtual grand juries are not only drawn in the

same manner as in-person grand juries, but also that no person is excluded

from grand jury service based on lack of technology or internet capacity.

A grand jury that represents a cross-section of the community provides

“a democratic safeguard to our judicial system” and is infused with “the

common wisdom of ordinary citizens to make the important fact-finding

decisions that must precede the filing of an indictment.” Fortin, 178 N.J. at

638. Impartially selecting a grand jury that mirrors a fair-cross section of the

community “demands that each person have an equal chance of serving.” State

v. Ramseur, 106 N.J. 123, 231 (1987).

To establish a prima facie claim that the grand jury selection process

violated the fair-cross-section requirement or the right to equal protection, 13 a

13 Article I, Paragraph 1 of the New Jersey Constitution provides that “[a]ll persons . . . have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” We have construed the “expansive language” of Article I, Paragraph 1 as 40 defendant must show, through statistical evidence or through inferences drawn

from a discriminatory selection procedure, substantial underrepresentation of

“a constitutionally cognizable group.” State v. Coyle, 119 N.J. 194, 213

(1990).

Defendant and amici have provided no evidence that the grand jury in

this case did not represent a fair cross-section of the community. First, the

statewide Manager of Jury Programs averred that the process of summoning

jurors for grand jury selection “has remained largely unchanged” for virtual

grand juries. Prospective grand jurors are mailed a juror summons postcard

that identifies the internet site at which the juror can complete their

questionnaire. If they do not respond to the questionnaire online, they are

mailed a hard copy questionnaire. Deputy Attorney General Shanahan,

moreover, has attested that, statistically, the number of potential jurors

available for virtual State Grand Juries is “not significantly different” from

those before the pandemic.

guaranteeing every person equal protection under the law. See, e.g., Sojourner A. v. Dep’t of Human Servs., 177 N.J. 318, 332 (2003); Lewis v. Harris, 188 N.J. 415, 442 (2006). The equal-protection guarantee is intended “to protect against injustice and against the unequal treatment of those who should be treated alike.” Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985).

41 Second, the grand jurors in this case were selected in pre-pandemic days

when in-person grand juries were still in session. When the Court authorized

virtual grand juries and the present panel transitioned to virtual sessions, the

Judiciary provided to five grand jurors tablets with, if necessary, internet

access so that every juror could continue to serve and participate. No one on

this grand jury panel was excluded from serving based on lack of personal

technology.

The certifications of the statewide Manager of Jury Programs, the Jury

Manager of the Mercer Vicinage, and the Acting Attorney Supervisor of the

State Grand Jury indicate that no person called to serve on virtual grand juries

throughout the state has been excluded for lack of technological equipment or

means. Those in need of the necessary technology are provided with tablets

and training to effectively participate.

Had this Court not followed health-safety protocols and kept in place in-

person grand juries during the pandemic -- presuming a public facility could

effectively accommodate the required social distancing of masked grand jurors

-- 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 and amici. On the other

42 end of the spectrum, an indeterminate moratorium on all grand jury

presentations would have caused adverse consequences for those seeking to be

cleared of charges, for those seeking to be afforded speedy trials, and for

victims looking to have their perpetrators brought to justice without undue

delays.

New Jersey has not been the only State to authorize virtual grand jury

proceedings during the pandemic. Five of the seventeen other states that “still

require a grand jury indictment for serious offenses,” Shaw, 241 N.J. at 237;

see also Wayne R. LaFave et al., 4 Criminal Procedure § 15.1(d) (4th ed.

updated 2020), have authorized virtual grand jury proceedings in response to

the COVID-19 pandemic. See, e.g., Alaska, Sup. Ct. of Alaska, Special Order

of the Chief Justice No. 8204: Update Regarding Authorizing

Videoconference Grand Jury Proceedings (Nov. 2, 2020); Georgia, Sup. Ct. of

Ga., Eighth Order Extending Declaration of Statewide Judicial Emergency

(Nov. 9, 2020); Kentucky, Sup. Ct. of Ky., Order 2020-40 -- In Re: Kentucky

Court of Justice Response to COVID-19 Emergency: Expansion of Court

Proceedings (May 19, 2020); South Carolina, Sup. Ct. of S.C., Operation of

the Trial Courts During the Coronavirus Emergency (Apr. 22. 2020); Texas,

Sup. Ct. of Tex., Twenty-Ninth Emergency Order Regarding the COVID-19

State of Disaster (Nov. 11, 2021).

43 In the midst of this worldwide and national pandemic, New Jersey has

not been alone in crafting temporary remedies -- consistent with constitutional

rights -- to keep the criminal justice system moving as new cases mount and

old cases stagnate.

2.

Defendant and the ACDL contend that by “selectively implementing”

the Virtual Grand Jury Pilot Program first in Mercer and Bergen Counties and

not allowing defendant to await an in-person presentation like similarly

situated criminal defendants, the Judiciary denied him his right to equal

protection of the law. In light of our conclusion that a virtual grand jury --

convened under the emergent circumstances of a deadly pandemic -- does not

run afoul of the constitutional right to a grand jury presentation, defendant can

hardly complain that having his constitutional right vindicated too soon and

before others violates his equal protection rights. 14 Virtual grand juries,

moreover, are now operating in all twenty-one counties, so defendant’s

disparate-treatment argument -- if it ever had legitimacy -- falls away.

The purpose of having a pilot program, such as for virtual grand juries or

drug courts, is to ensure the efficacy of the program before implementing it

14 Contrary to defendant’s assertion, no limitation has been placed on the types of criminal cases that could be presented to a virtual grand jury.

44 statewide. Pilot programs by their very nature may apply to a subset of a much

larger population. For example, drug courts began in Essex County and

Camden County and, over time, expanded statewide. See N.J. Courts, Drug

Courts, https://njcourts.gov/courts/criminal/drug.html?lang=eng (last visited

Apr. 21, 2021). The use of a pilot program, as here, did not create an

impermissible or unlawful classification and advanced a legitimate

constitutional objective, thus satisfying the rational-basis test for such a

program. See State v. Bianco, 103 N.J. 383, 398 (1986) (holding that the

Excessive Sentencing “Pilot Program, by singling out excessive sentence

appeals for disposition with oral argument but without briefs . . . rationally

furthered the State’s interest of securing prompt justice for all” and did not

violate the defendant’s equal protection rights).

Defendant and supporting amici argue that that the inherent limitations

and shortcomings of technology fatally undermine the integrity of virtual

grand jury proceedings and render them fundamentally unfair under New

Jersey law. They reason that, in the setting of a virtual grand jury,

technological deficiencies, as illustrated in the particular case before us,

obstruct one of the core functions of the grand jury -- to be “present or

45 informed of the evidence at each session in order to vote or to indict,” citing

Del Fino, 100 N.J. at 164-65.

We find that the concerns raised by defendant and amici, for the most

part, are overstated and grounded in conjecture, not in the reality of the many

thousands of virtual judicial proceedings successfully conducted -- despite

occasional glitches -- over the course of the pandemic. We acknowledge that

the use of technology, like all human undertakings, will not meet the test of

perfection. Nevertheless, we conclude that virtual grand jury proceedings

comply with the essential tenets of the fundamental fairness doctrine.

“New Jersey’s doctrine of fundamental fairness ‘serves to protect

citizens generally against unjust and arbitrary governmental action, and

specifically against governmental procedures that tend to operate arbitrarily.’”

Doe v. Poritz, 142 N.J. 1, 108 (1995) (quoting Ramseur, 106 N.J. at 377

(Handler, J., dissenting)). The doctrine is “an integral part of due process,”

Shaw, 241 N.J. at 239 (quoting State v. Saavedra, 222 N.J. 39, 67 (2015)), and

promotes the values of “fairness and fulfillment of reasonable expectations in

the light of the constitutional and common law goals,” Saavedra, 222 N.J. at

68. The fundamental fairness doctrine, however, is “applied ‘sparingly,’ only

when ‘the interests involved are especially compelling.’” Shaw, 241 N.J. at

239-40 (quoting Poritz, 142 N.J. at 108).

46 B.

Defendant and amici point out the various technological problems that

can arise during a virtual grand jury proceeding -- or any virtual proceeding for

that matter: a frozen video screen, imperfect audio, insufficient signal strength

and connectivity issues, all capable of causing a grand juror to miss key

testimony. A virtual proceeding, it is claimed, “does not capture all of the

cues so vital to judging credibility.” Defendant, moreover, presents anecdotal

examples from a news article about a grand juror who purportedly dropped off

a video feed and one who could not hear a witness’s testimony.

However, the hypothetical technological concerns raised by defendant

and amici, as well as the secondhand account from a news article, are

addressed in certifications filed by the statewide Manager of Jury Programs,

the Mercer Vicinage’s Jury Manager, and the Acting Attorney Supervisor of

the State Grand Jury. Those certifications detail what actually occurs before,

during, and after a virtual grand jury presentation to ensure that grand jurors

were present during the proceeding, heard the evidence, and voted. Those

certifications spell out that grand jurors are extensively trained to participate in

virtual grand jury sessions and advised to report technical problems to

Judiciary staff. Those certifications describe how Judiciary staff and

47 prosecutors patrol and monitor the virtual grand proceedings to detect and

correct technological issues.

No one suggests that technology does not present challenges in the

virtual setting. In Mercer County, for example, grand jurors are given the

contact information for grand jury and IT staff and instructions to call if they

have any technical issues. Experience and common sense also tell us that if a

grand juror’s screen is frozen or the grand juror falls off the feed, that will be

noticed -- by the affected grand juror, by other grand jurors, by Judiciary staff,

and by the prosecutor. If grand jurors have a problem hearing, presumably

they will follow instructions and advise Judiciary staff. If a grand juror

attempts to speak and gets no response, that will be a cue for the juror to

unmute -- or if others see the juror’s lips moving and hear no sound, they will

tell the juror to unmute.

Defendant also raises the question of whether grand jurors can assess the

credibility of a witness in the virtual format. Yet judges do so in remote

proceedings in many contested matters, such as testimonial hearings,

municipal court trials, and even civil jury trials. See also Ramsey, § 21.7

(“The grand jury process is not a mini-trial where issues related to credibility

are decided.”).

48 The technological problems that may arise in the virtual grand jury

setting are common to all virtual proceedings -- even live-streamed New Jersey

Supreme Court virtual oral arguments. Those problems have not deterred the

thousands of virtual proceedings that have permitted the New Jersey Judiciary

to keep the doors to the virtual courthouse open in the time of a pandemic.

Because the virtual process may not be perfect does not mean that it is not

mostly effective or unconstitutional. Certainly, technological glitches or

defects will require individually tailored solutions. A defendant will not be

without a remedy if such problems render grand jurors not present or informed

about the evidence during a virtual grand jury session.

We reject the notion that virtual grand jury proceedings facially violate

the fundamental fairness doctrine or the New Jersey Constitution.

We now turn to the virtual grand jury proceeding in this case. Our

review of the grand jury transcript leads us to conclude that, viewed in its

entirety, the proceeding did not violate the fundamental fairness doctrine or

defendant’s constitutional right to a fair grand jury presentation. We

nonetheless recognize that some simple steps can be taken to further safeguard

and inspire confidence in the integrity of virtual grand jury proceedings.

49 At the beginning of the grand jury proceeding, the prosecutor asked , “by

a show of hands,” whether any grand juror recognized the name of defendant

or the State’s only witness and affirmed for the record that no hands were

raised; she then asked whether the jurors “can hear and see me clearly,” and

indicated she saw no hands raised. As in typical in-person grand jury

presentations, the prosecutor relied on silence as an answer. For example, the

prosecutor asked the grand jurors whether they had any questions about the

proposed indictment, or for Detective Szbanz after he testified, or on the law;

and the prosecutor relied on the jurors’ silence (“no audible response”) as their

response that they had none.

It is true that if the grand jurors did not hear the question, because of a

technical malfunction, they arguably would not be in a position to respond.

But the grand jurors were trained to report technical issues to the grand jury

staff, and presumably if they saw the prosecutor’s lips moving and heard no

sound, they would know that there was a problem. Judiciary staff monitored

the proceedings as well. In addition, following protocol, before the jurors

deliberated in the breakout room, the foreperson asked the jurors whether any

experienced a problem that affected their ability to observe or hear the

proceedings. We are mindful that even in an in-person grand jury session, a

50 juror may be daydreaming or distracted, but the existence of such human

frailties does not indicate an institutional failing in our system of justice.

In the future, to remove any doubt about a virtual grand juror’s response

to a question, the prosecutor should require a clear indication for the record,

such as an audible response or a showing of hands.

Also, during the colloquy about whether the grand jurors could see the

indictment, the transcript reveals an “unidentified speaker” making such

comments as, “Can everyone see the Indictment?”; “How about now?”; “All

right . . . . No other questions or concerns?”; and “No. Okay.” We reject the

contention of defendant and amici that the exchange, in its totality, suggested

that the grand jurors did not see the indictment. That contention is further

refuted by the foreperson’s post-vote technology check.15 Additionally, the

Mercer Vicinage Jury Manager certified that the grand jurors reported no

technical difficulties. Last, the grand jurors were not neophytes; they had

participated in three previous virtual grand jury sessions and knew their roles.

Nevertheless, going forward all persons speaking on the record should

identify themselves or be identified. Everyone participating in the virtual

15 In all likelihood, the “unidentified speaker” was a member of the grand jury IT staff.

51 grand jury process should remember that the record must clearly reflect who is

speaking and the responses to any questions.

All in all, defendant received a grand jury hearing that comported with

basic tenets of fundamental fairness and the constitutional right to a fair grand

jury presentation. We therefore deny his motion to dismiss the indictment on

the grounds addressed in this opinion and remand to the trial court for further

VI.

A few final words. Virtual grand juries are a temporary measure

invoked to meet an extraordinary, life-threatening public health crisis. On

March 9, 2020, New Jersey reported eleven presumed positive cases of

COVID-19. See Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr.

6, 2020). A little more than a year later, as of April 19, 2021, New Jersey

reported 22,551 confirmed deaths and an additional 2,592 probable deaths

related to COVID-19 -- and 858,519 confirmed cases and 120,334 probable

cases. N.J. Dep’t of Health, New Jersey COVID-19 Dashboard: Cases and

Trends, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml. On

April 19, 2021, there were 2,109 COVID-19 patients hospitalized, with 435 in

intensive care and 254 on ventilators in this state. N.J. Dep’t of Health, New

Jersey COVID-19 Dashboard: Hospital Census, https://www.nj.gov/health

52 /cd/topics/covid2019_dashboard.shtml. Up to that date, 563,890 people had

died from COVID-19 in the United States. Ctrs. for Disease Control &

Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker.

New Jersey has suffered the highest per capita death rate in the country during

the course of the pandemic.

Those staggering statistics give some understanding of the dimension of

the crisis faced by the Judiciary and all New Jersey residents. Yet as life goes

on, the criminal and civil justice system cannot stand still. No one could

predict how long the pandemic would last. The Judiciary -- like educational

institutions, government operations, and businesses -- transitioned to a virtual

format during this grim period. Through the cooperative efforts of judges,

Judiciary staff and IT personnel, along with lawyers and litigants, many

thousands of remote hearings have been conducted in our criminal and civil

justice system. Indeed, the Administrative Office of the Courts has reported

that between March 16, 2020 and April 20, 2021, 175,073 virtual court events

have been conducted involving over 2 million participants.

Since the beginning of the pandemic, more than 6,000 cases have been

presented to virtual grand juries. The Judiciary has endeavored to maintain all

the essential attributes of the grand jury in the virtual format, so that the grand

jury retains its high, preferred place in our constitutional framework. As

53 millions of New Jersey residents continue to receive vaccinations, we look

forward in the near future to a return to normalcy and to reopened courthouses

-- and to grand jurors sitting together in the same room where testimony is

taken.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.