A defendant’s right under the New Jersey Constitution to have his charges brought before a grand jury before being indicted isn’t violated by the state’s use of virtual grand jury proceedings during the Covid-19 pandemic, the New Jersey Supreme Court said.
The court had the authority to implement the process using Zoom, and technical glitches don’t make it unconstitutional, the unanimous opinion by Justice Barry T. Albin said. “This court has utilized technology to preserve, not to undermine, the constitutional right of defendants to a grand jury presentation,” it said.
Omar Vega-Larregui challenged the virtual grand jury process after he was indicted on drug charges. He claimed it didn’t contain a cross-section of the community and didn’t protect the secrecy required during the in-person process.
The selection of grand jurors for the virtual process is no different from in-person proceedings, the court said Wednesday.
The process also provides a fair cross-section of the community, the court said. Potential grand jurors aren’t excluded if they don’t have a computer or electronic access to the proceedings; instead, the state provides them what they need and trains them, it said.
Vega-Larregui and amici, the New Jersey Association of Criminal Defense Lawyer and the State Bar Association, argued that requiring jurors to take an oath swearing to keep the process secret is insufficient to ensure secrecy because they are participating from their homes. But no sound evidence exists to support those speculative and hypothetical scenarios, the court said.
The virtual grand jury that heard Vega-Larregui’s charges was fundamentally fair, the court said. But in the future, prosecutors should require speakers to identify themselves and provide an audible response of showing of hands when they reply to questions, it said.
The court also stressed the virtual process is temporary and it’s looking forward to a “return to normalcy.”
Chief Justice Stuart Rabner and Justices Jaynee LaVecchia, Anne M. Patterson, Faustino J. Ferrandez-Vena, Lee A. Solomon, and Fabiana Pierre-Louis joined the opinion.
Furlong & Krasny represented Vega-Larregui. The Mercer County Prosecutor’s Office and the N.J. Attorney General’s Office represented the state. Fox Rothschild LLP represented the ACDL. Brian Neary of Hackensack, N.J., represented the NJSBA.
The case is State v. Vega-Larregui, 2021 BL 156026, N.J., No. A-33 September Term 2020, 4/28/21.