Update: On June 25, 2020, at the request of the Attorney General’s Division of Criminal Justice (“DCJ”), Chief Justice Rabner authorized the Virtual Grand Jury Pilot Program to expand its operations to existing State Grand Juries. Now, in addition to Bergen and Mercer County prosecutors’ offices conducting Grand Juries remotely in those counties, the DCJ will reconvene and conduct already existing State Grand Juries remotely. The Order notes that the DCJ “expressed an interest” in expanding remote operations to State Grand Juries “based on the results in the two pilot counties,” and that the Chief Justice entered the Order “accordingly.” The “results” to which the Order refers have not been published, and it is unknown how DCJ assessed those results and determined they warranted an expansion of the Pilot Program. To our knowledge, the Chief Justice did not consult criminal defense attorneys or civil liberties advocates before granting DCJ’s request. The most recent expansion of the Pilot Program therefore only increases our concerns expressed below.
The Chief Justice of the New Jersey Supreme Court recently ordered that a pilot program to conduct Grand Juries remotely may proceed without the consent of the defendant or his attorney. An old saying is: “A prosecutor can indict a ham sandwich.” Even in normal times, the critical gatekeeping function of a Grand Jury -- to determine whether probable cause exists for the State to prosecute serious criminal charges against a defendant at trial – is often lost because of imbalances in procedures. The real-life ramifications of being charged with a crime can only be assessed by those who have faced such a charge. Therefore the impacts of remote Grand Jury proceedings must be carefully evaluated.
The Grand Jury is shrouded in secrecy, conducted solely by a prosecutor. There is no judge present, there is no right for a defendant to even know of its existence let alone have an attorney participate in any way. As a result, grand jurors hear only one point of view, frequently through hearsay testimony offered by the case investigator. The strict rules of evidence do not apply to grand jury proceedings.
The threshold finding to charge someone is probable cause to believe a crime has been committed and probable cause to believe the defendant committed it. This standard---probably a crime and probably committed by the defendant—can allow grand jurors to “rubber stamp” what the prosecutor presents under the rationale that the real proofs can be challenged later at a trial. Forcing Grand Juries to be conducted online will further water down the vital Grand Jury process to the detriment of any person suspected of a serious crime.
Since the COVID pandemic and state-ordered lockdowns rendered in-person meetings nearly impossible, remote video conferences via Zoom, Microsoft Teams, and other apps have become familiar to many people. The severe limitations of this medium have likewise become commonly known. Sound and video quality are poor, internet connections freeze, lag and fail to keep up with “real-time,” video is limited to a person’s face and what they allow to be seen behind them, normal lifetime interruptions at home can impact the remote meeting, meetings can be surreptitiously recorded, and eavesdropping (“innocent” or otherwise) is easily done by third parties outside of the camera’s view or by hackers in cyberspace – just to name a few.
All these shortcomings will impede the Grand Jury’s ability to “secretly” assess witness testimony and the prosecutor’s demeanor and to make critical decisions that have enormous effects on individuals’ lives and society in general. An incalculable amount of information is lost when jurors are unable to observe the proceedings in person. Even under the best technical conditions, people can appear very differently through an electronic medium than they do in person. Volumes have been written about the reality-skewing effects that television has on how politicians, news reporters, and entertainers are perceived. Some of these effects can be controlled by the person on screen. The camera frame alone removes more than half of a witness’s body from view. The screen also filters out innumerable subtle details that the witness cannot control in person – the involuntary physiological clues of a person’s state of mind – a droplet of sweat, a minuscule twitch, a barely audible gasp. Consciously or not, jurors rely on all these details to decide how they feel about a witness and whether to credit their testimony. There simply is no substitute for observing a person face to face.
Remote proceedings threaten the secrecy of the Grand Jury and with it the integrity of investigations and the privacy of individuals. Grand Juries perform an investigative role as well as judicial. The prosecutor in the name of the Grand Jury can issue subpoenas for documents and witness testimony, granting it the power to “snoop” into people’s personal and business affairs which in the end may not even warrant criminal charges. Therefore, unlike trial courtrooms, the Grand Jury is not open to a public audience. Under ordinary circumstances, Grand Juries are convened in secret in secured locked rooms. In a “remote” Grand Jury, however, there is no such security. Every space from which each juror observes the proceeding becomes the Grand Jury room, and is subject to interruption and eavesdropping, even assuming that every juror is focused and conscientious in their duty. The proceedings can also easily be recorded by jurors or others, either through the device running the app, with a separate recorder placed nearby or simply from their smartphone. These obvious flaws seriously undermine the secrecy of the Grand Jury, violate the privacy of witnesses and subjects, and threaten the integrity of the State’s investigation.
It has been speculated that the remote Grand Jury pilot program is just the first step into a Brave New World of a remote justice system, including remote criminal trials. A brief survey of these most obvious flaws in remote Grand Jury proceedings makes it clear that with every step into the “remote” world, the justice system moves a step farther away from real justice.