NJSBA Statement on the Resumption of Jury Trials

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Plan says Judiciary's Resumption of Jury Trial Plan is laudable, but expresses concerns that important details have not been addressed

July 27, 2020
Contact: Kate Coscarelli
NEW BRUNSWICK - The New Jersey State Bar Association largely supports the principles in the Judiciary’s plan to restart jury trials in September, as outlined this week. We know that a live, in-person jury is the cornerstone of our civil and criminal justice system.
The NJSBA's first and foremost concern has always been that the resumption of jury trials happen in a way that balances safety considerations for all involved in the justice system with the litigant's rights to present their case for resolution in a reasonably prompt manner before a fair, representative and impartial jury. While the goals outlined in the plan are laudable, many important details have not been addressed. Litigants, lawyers, judges, jurors, and court staff have a right to know these details before the plan is implemented, so that each can make their own informed choice as to whether the safety measures in place are sufficient protection for their individual health circumstances.
The NJSBA's Committee on the Resumption of Jury Trials, part of the Association’s broader Pandemic Task Force, made a number of recommendations for a multi-stage process for jury selection. Many of those recommendations are incorporated in the Judiciary’s plan. The NJSBA has been developing detailed recommendations and “best practices” for resuming jury trials that will help achieve the goal of conducting jury trials in a safe manner with the protections afforded under our Constitution. We expect to be able to share those recommendations with the Court in the coming weeks.
As we all work to reopen law firms, schools and other businesses, we know that the challenges to doing so are significant. Through our Pandemic Task Force’s Committee on Courthouse Operations, which includes representatives from every county bar association, we have received feedback that the protocols described in the Judiciary’s report are not currently happening on a uniform basis, even for those much more limited matters taking place in courthouses now. We recognize the challenges of having each county courthouse operated at the local level. Nonetheless, it is imperative that there be uniform, statewide protocols that apply to every courthouse for cleaning, for sanitizing, for entering a courthouse and for providing notice of exposure and swift contact tracing to protect the well-being of everyone who is involved with the trial process. The details of those protocols should be clearly communicated and strictly adhered to in every vicinage in the state. Additionally, enforcement mechanisms need to be evaluated and agreed upon.
The Judiciary’s plan discusses the acquisition of technology to provide to potential jurors, but it is unclear how that technology will be disseminated to what could be a large group of people called for jury service who do not have computers or reliable internet connections. It is also unclear how potential jurors who are at high risk for COVID-19 exposure because of age or pre-existing risk factors will be addressed. Given that, our concerns remain that the process outlined will potentially exclude large numbers of people from jury service and, thereby, not provide a representative jury.
Further, there are other stakeholders – judges, lawyers, courthouse personnel – who may be vulnerable for COVID-19 exposure due to pre-existing medical conditions. The plan does not address what will happen if these individuals express concern about entering the courthouse.
Finally, in the context of criminal trials, the Constitutional protections afforded to defendants under the federal and state constitutions must be preserved.
We are in unprecedented times. We recognize that justice delayed is justice denied. The NJSBA looks forward to providing additional constructive feedback to the Judiciary in the coming weeks to help ensure that jury trials can resume in a safe, fair and impartial manner.