New Jersey court officials say they cannot allow an “increasing backlog” of criminal and civil cases to idle any longer and announced Wednesday that they plan to restart in-person jury trials by September.
Jury selection will occur virtually while in-person trials will include a battery of precautions to protect against the spread of the coronavirus; precautions will include courtrooms with plexiglass barriers and jurors spaced 6 feet apart.
“We do not have the option of saying that the courts can shut down until such time as there is herd immunity or that we come up with a vaccine,” said Acting Administrative Director of the Courts, Judge Glenn Grant. “We would love for that day to happen. We can’t wait for that day to happen. But the work of the court — critical work of the court — needs to continue.”
Grant said there are more than 4,700 people in county jails across the state awaiting trial or the presentation of their case to a grand jury.
But some attorneys worry that because of the coronavirus they will be unable to effectively communicate with their clients during trial or to pick up on the visual cues of jurors.
“The client needs to be able to have a say in how the trial is going, have a say with the lawyer as to what questions should be asked,” said Kimberly Yonta, a criminal defense attorney in New Brunswick. “If that cannot be accommodated, that would certainly be a very big constitutional issue.”
In-person trials will first begin in the Bergen, Atlantic, and Cumberland-Gloucester-Salem vicinages. Parties to the cases, including criminal defendants, will not be able to opt out of the process.
Jurors will receive summonses in the mail and participate in the early phases of jury selection virtually. Court officials will provide an electronic device to any potential juror who needs it to participate in online jury selection.
Potential jurors who are 65 and older or who have a particular underlying medical condition will have their service rescheduled for a later date. Other jurors who have concerns about COVID-19 but do not meet the specific criteria for exemption will get to meet with a judge to discuss why they should be excused.
“The judge makes an individualized assessment as to whether that excuse makes sense,” Grant said.
Trials will be conducted using a “hybrid” model where the judge, attorneys, defendant, and some jurors are in one courtroom and the rest of the jurors are in another courtroom watching a live feed of the proceedings. Officials said some courtrooms were too small to accommodate social distancing for everyone involved in a trial.
Jurors will wear face masks, sit 6 feet apart, and some will undergo “thermal screening” at the courthouse entrance. Defense attorneys will communicate with their clients through a plexiglass barrier, using ear buds, or “the old-fashioned way of just using notepads,” Grant said.
Officials said the public would still have access to trials either in person or virtually, and they could make a request to observe through the assignment judge or local trial court administrator.
But Yonta, the criminal defense attorney, said the precautions intended to prevent the spread of the coronavirus would impact the less tangible but significant parts of a trial, such as a juror’s ability to weigh the evidence.
“If the jurors are not in the same courtroom, they are sometimes missing the ability to assess the credibility and veracity of a witness,” she said.
Yonta suggested the judiciary consider holding in-person trials in alternative venues that can fit all the jurors in the courtroom while socially distanced, like some municipal courtrooms.
The judiciary has been holding virtual grand juries in Bergen and Mercer counties, a move that has received blowback from both prosecutors and defense attorneys who questioned whether it was fair to defendants and could remain confidential.