NJSBA Urges Courts Turn to Civil Matters as First Step in Resumption of Jury Trials to Ensure Constitutional Rights and Safety for Public, Legal Community

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September 9, 2020
Contact: Kate Coscarelli
NEW BRUNSWICK - The New Jersey State Bar Association (NJSBA) recognizes the importance of resuming jury trials after months of having them suspended due to COVID-19. The NJSBA Committee on the Resumption of Jury Trials has determined that the best path forward -- one that will preserve a litigant’s constitutional rights while also protecting the health and safety of all participants -- is to begin with civil trials.
“The NJSBA respectfully suggests the Judiciary move forward first with civil trials. The Committee’s report concluded the current plan to first resume criminal jury trials presents numerous issues, including heightened constitutional and health and safety concerns. All of us have the same goal, which is to get this right. Starting with civil trials will allow everyone involved in the process to gather lessons learned that can then be applied to criminal trials at the appropriate time without jeopardizing a defendant's liberty,” said Committee Chair William H. Mergner Jr., who is also NJSBA treasurer.
The Committee, which is part of the Association’s broader Pandemic Task Force and composed of civil trial attorneys, criminal defense attorneys, county prosecutors and retired members of the Judiciary, expressed additional concerns about the Judiciary plan to restart criminal trials this month. The Committee’s report was sent to the Judiciary last week.
“The NJSBA stands ready to assist the Court in whatever way it can to resume jury trials in a manner that both preserves a litigant’s constitutional rights and protects the health and safety of all courthouse users,” said NJSBA President Kimberly A. Yonta, in a letter to the Courts accompanying the report.
Criminal trials present a host of heightened constitutional issues that differentiate them from civil trials and that justify continuing to put them on hold, according to the report, including that the current plan:

Jeopardizes the constitutional rights of defendants in several key ways, including the right to a fair trial, the right to confront witnesses, and the right to have a jury that is truly of one’s peers and one that is able to meaningfully witness and engage in the trial proceedings;
Has the potential of jeopardizing a victim’s right to be present in person at the trial and to have the direct support of family and friends; and
Presents nearly impossible-to-overcome logistical challenges in ensuring the health and safety of all who are needed for a successful criminal trial.

The NJSBA believes civil trials can be structured in a way that allows for the safe, fair, and rational return of jury trials to New Jersey’s courthouses.
“There are several factors that point to why this may be a successful way to resume jury trials. Civil trials do not present the same logistical issues as criminal trials, since there are not as many participants, nor are there the same constitutional implications necessitating that all participants be in the same room. Civil trials are a fundamentally safer endeavor as they require only six jurors with two alternates. Indeed, every stage of the trial process is safer due to the reduced number of individuals needed in the courtroom at any given time and potential for exposure,” the report states.
Moreover, civil trial practitioners and jurists are in a superior position to implement the technology necessary for a test program. Expert and fact witnesses are already routinely videotaped, and many civil attorneys are well-versed in using technology in the courtroom to present evidence.
This approach will yield important lessons and present opportunities to learn during an initial pilot program of civil trials, according to the report. Further, the Committee recommended the creation of a committee comprised of judges and lawyers to facilitate discussions about lessons learned and to provide recommendations for improvement.

Committee on the Resumption of Jury Trials Members
William H. Mergner Jr., chair
Craig M. Aronow
Hon. Dennis F. Carey III, P.J.Cv. (Ret.)
Bina Desai
Michael G. Donahue
Kathleen Barnett Einhorn
Hon. Bradley Ferencz (Ret.)
Hon. Kenneth J. Grispin (Ret.)
Robert B. Hille
Reema S. Kareer
Brandon D. Minde
Brian J. Neary
Christopher M. Placitella