The COVID-19 pandemic has forced nearly everyone to drastically alter how they once did things, including the justice system. Many aspects of the criminal justice system are now conducted virtually, including but not limited to arraignments, bond revocation hearings, and motions hearings. 

One of the more controversial aspects of the criminal justice system to have gone virtual in some states is the grand jury. New Jersey implemented a pilot program earlier this year to hold grand juries via Zoom video conference. While many laud the efforts as a way to get the wheels of justice moving, particularly for those who remain in detention pending a trial, the concept of a virtual grand jury has been criticized by many as constitutionally unsound. 

A New Jersey Superior Court is now poised to be the first to address the constitutionality of virtual grand juries. In State of New Jersey v. Omar Vega-Larregui, the defendant has moved to dismiss the indictment against him because use of remote grand juries impedes the proper functioning of the grand jury and infringes on his constitutional rights. Mr. Vega-Larregui was arrested and charged with drug distribution and resisting arrest after an officer found cocaine in Mr. Vega-Larregui’s truck. 

Although Mr. Vega-Larregui was not in custody prior to the indictment, prosecutors proceeded with empaneling a grand jury and presenting their case against Mr. Vega-Larregui. There were technical difficulties when the prosecutor attempted to show the grand jurors an exhibit, and the jurors were only able to see head and shoulders of the arresting officer as he testified. Nonetheless, the grand jury indicted Mr. Vega-Larregui and he now contends that remote grand juries do not allow the jurors to view evidence, like documents or a witness’ body language, the way they could in person and as a result his indictment should be dismissed on constitutional grounds. 

Mr. Vega-Larregui is joined by both prosecutors and defense counsel in his opposition to virtual grand juries.  The County Prosecutors Association of New Jersey has also criticized the virtual grand jury as a “constitutional mistake” because the secrecy of grand jury proceedings cannot be ensured in video conference settings, there are inevitable racial and socioeconomic inequalities, and technological difficulties call into question the efficacy of the grand jury. The Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) is also opposed to remote grand jury proceedings and is expected to file an amicus brief in support of Mr. Vega-Larregui’s motion to dismiss. 

How the Court will ultimately rule remains to be seen, but either grand juries will be allowed to continue proceeding remotely or will be suspended until the pandemic concludes. Either outcome will have serious effects on the criminal justice system. 

The attorneys at Chilivis Grubman handle a variety of white-collar matters.  If you need assistance, please contact us today.