The COVID-19 pandemic has foisted ten years of technological advances on the legal sector in a period of ten months. In June of 2020, when the novel Coronavirus was truly novel, we blogged (here) about whether virtual jury trials would be part of the “new normal” and discussed some of the potential pitfalls associated with remote courtroom proceedings.
What seemed revolutionary just a few short months ago, does, indeed, appear to be the “new normal,” ushered in by the pandemic. On January 7, 2021, the New Jersey Supreme Court issued an Order resuming civil jury trials in a virtual format. Noting that “[t]he pandemic required the court system to consider new ways to respond to the needs of public and administer justice” the Court’s Order directs virtual civil trials to begin on or after February 1, 2021 in eight of New Jersey’s 21 counties.
When we blogged about remote jury trials back in June, we raised several concerns—including juror access to technology, the public’s right of access to the courts and the need for a “virtual bailiff” to monitor connectivity and security and ensure that jurors are paying attention. The New Jersey Supreme Court’s Order takes these issues—as well a few additional ones that we had not considered—into account and adopts a two-phase approach for virtual civil jury trials during the pandemic.
Phase 1 begins on February 1, 2021 in the following counties: Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union. Participation in virtual jury trials during Phase 1 is voluntary.
Consent, however, is not required during Phase 2, which commences on or after April 5, 2021 and expands virtual civil trials to all counties in New Jersey. Virtual civil trials will continue until further order but “only as long as necessary based on the COVID-19 pandemic.”
All civil case types (all dockets and all tracks) will be eligible for virtual civil jury trials. To the extent possible, virtual civil jury trials in each county will begin with cases involving a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses.
Cases that are especially complex or anticipated to require more than a few weeks to complete, will be scheduled only after one or more straightforward trials have been conducted in the county. Regardless of complexity, cases involving healthcare professionals involved in responding to the COVID-19 pandemic will not proceed unless: (i) the trial or other proceeding is requested by the healthcare professional, or (ii) involves matters related to COVID-19.
I. The Nuts And Bolts Of Virtual Jury Trials in New Jersey
Jury selection will be conducted in an entirely virtual format. Judges are encouraged to be more permissive in allowing attorneys to participate during virtual voir dire. The model voir dire questions will be expanded and the trial judge and attorneys will agree on at least two open-ended questions that probe (i) juror understanding of public health precautions that will be followed during trial and (ii) juror capacity and commitment to participate in a virtual trial. In all virtual civil jury trials, the judge will advise jurors to avoid distractions and to comply with the Policy Regulating Jurors’ Use of Electronic Devices During Juror Service.
The Judiciary will provide standard technology to summoned jurors during the selection process and to all empaneled jurors. Samsung Galaxy Pro tablets will be provided to all empaneled jurors, with Broadband activated if necessary. The judiciary will deliver the technology to jurors at their homes or an agreed upon location, or will coordinate pickup if preferred. The court may permit jurors who prefer to use their own technology and who demonstrate the capacity and reliability of that technology to use an appropriate personal device instead of the Samsung Galaxy Pro tablet. Designated staff will be available and responsible to monitor and address technical issues.
The trial judge will conduct a comprehensive pretrial conference that will cover all aspects of the virtual trial process, including whether the judge, attorneys, and parties will be present in a courtroom or whether any or all of them will participate remotely. The judge and attorneys may agree to conduct trials in a “hybrid” format with the judge, attorneys, and even witnesses participating from the courtroom. The pretrial conference will also cover the method of presenting evidence, including when and how to show evidence to the jury.
Witnesses who testify remotely will be required to swear or affirm that they will not communicate with or receive messages from attorneys or others while testifying. The judge and attorneys are to agree on a trial schedule designed to minimize the fatigue associated with online participation, by, for example, limiting morning and afternoon sessions to three hours and scheduling lunch and other breaks.
The trial judge will provide an enhanced jury charge that emphasizes jurors must give their full attention to the trial and must maintain the secrecy of jury proceedings. Among other precautions, jurors may be required to scan (360°) the room they are in to show that they are in a private location.
II. Public Access to Court Proceedings
Public access to the first virtual civil jury trials will be provided by live broadcast without showing images of or otherwise identifying the jurors. After a few virtual civil jury trials are shown live, public access will be accommodated by individual Zoom invitation to the court proceeding or by other means.
New Jersey judges, attorneys and residents have already done an incredible job adopting to the brave new world of virtual court proceedings. Since March 16, 2020, judges at all levels of the New Jersey courts have conducted more than 120,000 remote court proceedings involving more than 1.45 million participants. During the same period, more than 500 New Jersey residents have served as jurors in hybrid trials and virtual grand jury panels, using their own technology or technology provided by the courts. Despite these efforts, countless civil litigants whose trials have been indefinitely delayed have not been able to resolve important disputes. The New Jersey Supreme Court’s Order provides a path forward for those litigants and all NJ residents who seek relief from the courts.