Trials and Litigation in the Era of COVID-19
This series explores various issues relating to the reopening of Courts in New Jersey in the shadow of COVID-19, including the intersection of safety measures and the rights of litigants.
Jury Selection to Resume Virtually in the State’s First Criminal Trial since COVID-19 Lockdown
State v. Dangcil, New Jersey’s first jury criminal trial since COVID-19 brought our justice system to a grinding halt, has begun. This case is being tried in Bergen County and involves multiple charges against the defendant including attempted arson. However, the selection of the jury has given rise to an early problem.
Trial by jury remains a bedrock of our justice system and the first step in the process is jury selection. Normally, jury selection is done in person and involves attorneys for both sides asking questions of the potential jurors in the presence of a judge as to their ability to act impartially and to serve. This process is known as Voir Dire. Hundreds of jurors are usually summoned for cases and the Jury Management Office within each county works with the judges, court staff, and potential jurors to facilitate jury selection. The outcome of cases can depend greatly on the makeup of the jury and, consequently, the selection process is a critical step in any trial.
Given that jury selection normally requires the gathering of large, diverse portions of the public (approximately 800 potential jurors were summoned for service here), New Jersey Courts have adapted in the wake of COVID-19 by making jury selection virtual. Now, instead of reporting in person, potential jurors use Zoom to contact their county’s Jury Management Office. In Dangcil, this process was challenged because the Bergen County Jury Management Office used their discretion to dismiss potential jurors or delay jury service based on juror requests outside the presence of the litigants and their attorneys. The defense argued that, because of these decisions, they were unable to evaluate, object to, or advocate for any given juror’s request for excusal. The defense also argued that the jury pool was not diverse. An amicus brief filed by the New Jersey Bar Association asserted that the Jury Management Office did not provide reasons why certain jurors were excused or deferred and failed to keep records as to the demographic data of these jurors. Such data would permit the parties to evaluate and address any issues surrounding diversity in the jury pool. The Appellate Division has recently rejected these concerns and ordered jury selection to continue in Dangcil. The New Jersey Supreme Court, on emergency appeal, affirmed the Appellate Division’s decision and declined to further delay the trial. However, the Court left open the possibility of addressing these issues post-trial.
This jury dispute, particularly in the context of a criminal trial, walks the line between protecting the rights of the accused and ensuring the safety of the public. Most would agree that summoning hundreds of potential jurors in person would likely be a public health issue. Additionally, virtual platforms like Zoom have their limits and tend to extend the time it takes to question individuals given the inevitable technical issues and the inherent problems of dealing with a virtual platform as a middleman rather than being able to communicate in person. Allowing the Jury Management Office to dismiss a portion of jurors for procedural reasons (such as a juror being unable to serve due to child care issues) makes sense in order to streamline the process. However, there remain very real constitutional concerns regarding the diversity of the jury pool (which could be made worse by a variety of factors such as a lack of reliable internet for a given juror) and the ability for the parties to question potential jurors as to why they ask to be excused. But as we adjust to the new normal, the Court has seemingly determined that these concerns are not apparent enough to halt jury selection. Perhaps in time, and with more cases, we will be able to more fully understand if the concerns raised in Dangcil impacted the jury pool to the detriment of those on trial.
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