Monday Editorial – Are Zoom Juries Constitutional - Generally Speaking, Probably Yes...

The times have certainly changed from 100 years ago!

I'm sure there will be a flurry of appeals in cases where the jury attended court proceedings by a video conferencing program.  The ultimate question will be was the appellant denied due process because the jury participated in the proceedings virtually.  I have a feeling this will be a high hurdle for any attorney to prove their client was denied due process because they had a "Zoom" hearing instead of an in-person hearing.  For example, the New Jersey Supreme Court recently upheld an indictment made by a "Zoom" jury.

In its opinion, State v. Omar Vega-Larregui (A-33-20) (085288), the state supreme court opined the appellant was not denied due process by having his indictment via Zoom.  The NJ Governor had declared a public health emergency due to COVID.  Under these extraordinary times, the court has the (state) constitutional administrative authority as to how it conducted its business; in this case, its grand juries.  More importantly, the court found the "...essential attributes of the right to a grand jury presentation can be preserved through a virtual format."

The ruling discussed how the court was able to maintain the integrity of the proceedings.  Hardware was provided to those jurors who did not have the means to conduct video conferencing on their own - this ensured a diverse jury.  There was judiciary staff to educate jurors about the electronics.  The staff was there to help with technological problems should the need arise.  The staff also required each grand juror "to demonstrate the capacity to use the technology, to see and hear the proceedings, to communicate with [Judiciary] staff and each other, and to indicate if they experienced any difficulties or otherwise required assistance."

A Zoom trial run was first conducted before the proceedings.  Then, to ensure the secrecy of the proceeding, "a staff member checks in with the jurors [before each proceeding], has them perform with their electronic devices a '360-degree scan of their environment[s] to confirm the privacy of their locations, and reminds them to turn off their cell phones or other devices." Like in any grand jury, this grand jury was informed by the court of the secrecy requirements of grand jury sessions - virtual or not. The court empathized the secrecy requirement to the jury by reminding the members that there were consequences in the form of penalties should they violate their oath.

The defendant and his amicus curie argued that there were too many opportunities for the jury to violate their oath.  Jury members could allow others to access the hearing, record the proceedings on their devices or even conduct their own research.  The court soundly addressed this:  The courts rely on jurors to take their oaths seriously.  The court emphasized this by reminding the jury members there were penalties should they violate their oath.  To the reader of this blog, don't forget that regardless of the setting, jury members can still violate their oath.  But what does that mean:

Generally speaking, I'm guessing that Zoom trials, hearings, etc., will be upheld to be Constitutional.  Claiming a virtual hearing is unfair will not likely survive on its own merits.  A party will have to probably prove that their particular trial was prejudiced or unfair due to specifics of their proceedings, e.g., jury tampering, jury misconduct, technical errors, etc.

MTC!

*Reminder of the DISCLAIMER: I am not offering any legal advice nor do the discussions in this blog create an attorney-client relationship.