December 14, 2020
Many state courts and all federal courts require that a grand jury decide whether to bring criminal charges against a potential defendant. Prosecutors attempt to establish probable cause that a criminal offense has been committed. The grand jury may request the court compel further evidence, including witness testimony and subpoenas of documents. The grand jury is generally free to pursue its investigations unhindered by external influence or supervision.
Before the COVID-19 pandemic, grand juries were required to meet at a courthouse. Grand juries sit in the courtroom and often move to a separate room to review evidence. The grand jury room will accommodate the prosecuting attorney, a court reporter, a bailiff, and then of course the jurors. Grand jury room requirements include maintaining the confidentiality and security of witnesses as well.
The National Center for State Courts has responded to the Pandemic with many resources including Technology Options for Jury Trials and Grand Jury Proceedings. The report notes that “remote grand jury proceedings may be more feasible legally and practically than remote trial juries.” Recommendations for virtual grand jury proceedings include:
- A private, secure videoconference platform
- Modification of the grand juror instructions and oath related to the secrecy of grand jury proceedings as needed to extend its application to videoconferencing
- Determination of the appropriate institution and person to manage the videoconferencing platform for grand jury proceedings
- Providing access to grand jury materials, including documents and transcripts of witness testimony, with a link to a secure digital drop box
The New Jersey State courts have made strides in this area with its Virtual Grand Jury Pilot Program. Under the plan, the court configures, administers, and delivers devices and broadband connections to jurors when required. The program also requires a supplement to the oath of secrecy to address virtual proceedings. The pilot started in Mercer and Bergen counties with the intent of expanding to all New Jersey counties.
The Mohave County Superior Court (AZ) also responded to the COVID-19 pandemic using virtual hearings for grand juries. Judge Charles W. Gurtler authorized the use of video conferencing for grand jury hearings. Such hearings provided both pandemic related health solutions and logistical solutions for the court, by removing the need for all grand jury members to be gathered in the same place.