After a six month suspension due to COVID-19, New Jersey courts are set to resume jury trials next week under a Supreme Court order released Friday.
The first trial is scheduled to begin in Bergen County on Sept. 21 with virtual jury selection before Superior Court Judge Robert Vinci.
Jury selection will be conducted using a hybrid approach: Voir dire questioning will largely take place in a virtual format, and follow-up questioning and the exercise of peremptory challenges will be conducted in person. The trial will be conducted in a socially distanced courtroom.
“The decision to resume a limited number of jury trials is motivated by the ongoing restrictions of the rights of criminal defendants, including more than 2,500 defendants who have been indicted and are detained in jail awaiting trial, as well as the rights of victims of crime seeking access to the courts to complete a critical step in their recovery,” the court said in an order signed by Supreme Court Chief Justice Stuart Rabner. “In addition, the extended delay in the administration of civil justice, including more than 9,000 cases awaiting trial today, also compels the resumption of jury trials.”
After a group of 200 potential jurors is whittled down virtually over several days, a smaller group of prospective jurors will appear at the Bergen County Courthouse in Hackensack on Sept. 28.
New Jersey’s first socially distant, in-person jury trial is expected to begin that same week.
“This is welcome news,” said Bill Palatucci, a partner in McCarter & English LLP‘s business litigation practice. “By many lawyers, it’ll be a lot of hoops to hop through in order to operate under all the new protocols – social distancing and masks and temperature checks and all that – but I’ve heard lots of attorneys complain about the inability to move matters along.”
Not everyone is in a rush to get back to the courtroom amid pandemic-related health concerns, however.
“You’ve got a lot of people in the courtrooms and the courthouse,” noted Archer & Greiner partner Lloyd Freeman, who focuses his practice on commercial and complex civil litigation. “There may be two partners, an associate, a paralegal, you might have a tech guy, you might have a whole team going into a trial every day, especially if you’re talking about a more complex litigation matter.”
Not all of the facilities in New Jersey’s 21 counties could allow for distancing, he said, also noting that in places such as the deliberation room, it wouldn’t be possible.
“One consideration for the courts to think about is, is it going to be acceptable for a potential juror to say ‘I’m an at risk individual. I have an autoimmune disorder, I live with an elderly parent, so I don’t want to subject myself to being in this jury box’?” Freeman said.
And, with a socially distant jury box, “certain people get the chance to look at the witness’s face and determine credibility and others won’t,” he suggested.
The preparation to return to jury trials has resulted in the settlement of 10 criminal cases in Bergen County thus far.
“Jury trials are the catalyst for resolving cases, both in criminal and civil matters. The availability of a judge and jury ready to hear a case prompts pleas in criminal matters and settlements in civil cases. In contrast, the unavailability of jury trials removes the impetus for case resolution and stalls the wheels of justice. Countless individuals are adversely affected as a result,” the Court said in its order.
Freeman said he shares the Court’s concern that criminal defendants have a right to a speedy trial.
“I do understand where the Court’s coming from with moving forward with the jury trials. We just have to make sure we’re balancing that need, which is constitutionally guaranteed to the defendants, [and health concerns]. If someone is being unlawfully detained, of course we don’t want them sitting in prison until we get a vaccine. The courts just have to balance all of that,” Freeman said.
Virtual jury selection is expected to start in Atlantic County the week of Sept. 28, Cumberland County the week of Oct. 5, in and Mercer and Passaic counties the week of Oct. 19.
“That list itself to me sounds like they’re looking at county facilities that have the room and the ability to handle people coming back to facilities. You’re gonna need the room for, I assume, temperature checks, besides the magnetometers they’ve had since 9/11 in all the county courthouses, now you’re gonna have to add some additional equipment. But that said, as I said, it’s good news,” Palatucci said.
The first new jury trials will be straightforward criminal cases involving a single detained defendant. The public will be able to witness the first several socially distanced in-person jury trials via livestream.
“For more than six months, the New Jersey courts have sustained court operations to the greatest extent possible without jury trials. During that time, public health authorities have confirmed that COVID-19 trends in New Jersey no longer require all residents to stay at home, and those same authorities have issued guidance for how businesses, schools, and other institutions including the courts can safely resume some level of in-person activity,” the Court said in its order. “Guided by the public health experts and recognizing its duty to uphold the rule of law even when it is difficult to do so, the Court authorized the resumption of jury trials.”
Editor’s note: This story was updated at 7:50 a.m. EST on Sept. 21, 2020, to include remarks from Archer & Greiner partner Lloyd Freeman.