Formal criminal proceedings in indictable (felony) matters begin with a prosecutor’s presentation of the State’s case to a grand jury. A grand jury consists of a body of 23 citizens who listen to the State’s witnesses and review any documents or other materials the State wishes to display, and then decides whether the State has shown that there is probable cause to conclude that the defendant committed a crime. Probable cause is a “baseline” showing that a crime was committed and the defendant committed it. This standard is far lower than the “beyond a reasonable doubt” burden of proof standard that the State must satisfy at trial. If the standard is met, the grand jury votes an indictment, which lays out formal charges. The 1947 Constitution provides that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury[.]” Thus, the institution of the grand jury has a Constitutional basis, and the fair and procedurally correct operation of the grand jury has Constitutional significance.
The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England. Thus, the roots of the grand jury as an institution of Anglo jurisprudence can be traced back almost a thousand years in our legal history.
There are certain rules that have always been viewed as fundamental to the proper functioning of a grand jury, and secrecy is probably the most important one. The grand jury operates in secrecy for good reason. Secrecy protects defendants. If the defendant is “no-billed” (the panel fails to vote an indictment and formally charge the defendant with an offense), their reputation will hopefully remain intact. Further, the identities of witnesses who testify for the State (which may include undercover officers or confidential informants) are shielded from disclosure. Thus, the fact that the grand jury operates in secrecy benefits both defendants and the State.
The Administrative Office of the Courts (the administrative body that manages the functioning and operations of New Jersey’s court system) has apparently decided that that none of the foregoing (Constitutional underpinnings, historical significance, procedural correctness and secrecy) matter very much. What matters is expediency and efficiency, that we move cases, and that and that the system has good numbers and strong statistics. Everything has to be done quickly, as opposed to correctly. These are our new priorities.
What the AOC seeks to do is really nothing short of astonishing in terms of its assaultive impact on the institution of the grand jury. Because of the pandemic and the effect it is having on courthouse operations, the AOC wants to implement virtual grand juries. If this really goes forward, grand jurors will start listening to grand jury presentations from the comfort of their respective homes. Sounds very cozy – right? Depending on the angle of their computer screen, a grand juror may not even have to dress formally, but can instead wear their PJs and fuzzy bedroom slippers. The AOC has, however, completely overlooked the many negatives that would be inherent in virtual proceedings.
Since this proposal has come to light, criminal defense attorneys all over the State have opposed, and continue to oppose, its implementation. As outlined in an excellent article that appeared recently in the New Jersey Law Journal, virtual proceedings limit the composition of a grand jury panel to those that have computers and internet service, with the result that less affluent individuals who lack these things would be barred from participation. Further, virtual grand jury proceedings compromise secrecy, since there is no way to control who else may be present while any given grand juror is listening to a presentation and what those non-participants may be doing including, without limitation, influencing or “advising” the grand juror, or even recording the proceedings. Finally, virtual proceedings depend upon reliable internet hook-ups. A disruption in internet service can impact negatively upon the proper functioning and integrity of the proceedings.
But wait – there’s more. The Legislature has not had a hand in implementing any of the proposed procedures by and through the legislative process; rather, this is all be accomplished administratively. Additionally, defendants and/or their attorneys were originally given the opportunity to refuse to consent to a virtual grand jury presentation. But when nobody consented, the Supreme Court directed that virtual proceedings would occur even without consent. Finally, the defense bar was not offered any meaningful opportunity to comment upon the new procedures prior to or during their formulation.
Significantly, the State’s association of prosecutors has joined the defense bar in objecting to virtual grand jury proceedings, instead voicing support for the idea of conducting grand jury presentations in environments where social distancing and other health and safety protocols can be followed.
Given the importance, Constitutional significance and long history of the grand jury in our legal system, the idea of having virtual grand jury proceedings to move cases and cut down on backlog is simply misguided. It elevates speed over procedural correctness, statistics over fairness and decency, and the mere appearance of a fully functional court system over Constitutional rights. Every attorney in this State – regardless of which side of the case they are on – understands full well that we are all working under challenging and unfamiliar conditions that require new ways of thinking about and solving problems. But virtual grand juries fall far short of the mark and have no place in any solution. We need something better than that. Given what a grand jury is and what it does, more is required.
Criminal defense attorney James S. Friedman, Esq., is based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in all state and federal courts throughout New Jersey and New York City.