NJ Court Finds No Merit in Dispute Over Virtual Jury Selection

The first COVID-19 era jury trial in New Jersey stalled after the defense raised concerns about screening potential jurors via videoconference. But after review from the state appellate court, there was no issue found in the protocols used in the jury selection for State v. Dangcil. As such, the case was sent back to Bergen County Superior Court for trial to carry on.

Virtual Jury Selection Dispute

At issue in State v. Dangcil is the jury makeup resulting from a virtual jury selection process. The jury selection was held remotely in an effort to protect all participants from the risk of COVID-19 transmission—an arrangement the defense initially supported. After 13 juror interviews, however, defense counsel filed an order to show cause, arguing that reliance on virtual technology for juror interviews was producing a selection of jurors that were not representative of the community as a whole. Rather, the defense claimed, the jurors available via the virtual arrangement were disproportionately younger and of higher economic status.

Juror interviews continued as the parties prepared for arguments on the motion to show cause. Ultimately, 178 potential jurors were interviewed remotely and 63 of these participants were asked to appear in person. After the in-person selection was complete, 16 jurors were chosen.

Trial Court Finds No Issue

After its review, the trial court decided that the virtual jury selection process was lawful. The court noted that there was no evidence indicating any demographic group had been excluded from consideration in the initial interviews, and that defense counsel had conceded the process was not defective.

Defense counsel then appealed the decision to the New Jersey Superior Court, Appellate Division. The Appellate Division affirmed the trial court’s decision, stating that “there has been no showing, technical or otherwise, to rebut the presumption of validity, or any evidence to suggest that the selection was non-random or that any constitutionally cognizable group was excluded from the array.”

The Next Steps in State v. Dangcil

Following the Appellate Division’s decision, proceedings in State v. Dangcil were set to resume on Monday, October 19, 2020. On October 16, however, defense counsel filed an application for emergent relief with New Jersey’s state Supreme Court.

The state Supreme Court denied a review while the trial was pending, holding that the “defendant has not made a sufficient showing that entitles him to emergent relief.” The court did, however, state that it would entertain a motion for direct certification of the issues raised in the emergent application if that motion were made post-trial. The Supreme Court also said that it would be willing to sever the jury selection questions from any other questions raised on appeal. The Appellate Division would then be free to hear any non-jury-selection appeal issues, just as it would in any other criminal case.

What the NJ Court Decisions Mean for Future Virtual Jury Trials

A number of novel issues appear in State v. Dangcil. They include questions about the reliability of virtual juror selection processes and the effects of virtual intermediaries on the demographic makeup of the juror pool. In the initial appeal, the defendant argued that conducting voir dire virtually was unconstitutional, “as it obscures the jurors’ view of the defendant and prevents counsel from assessing credibility of jurors.” To date, that question remains unresolved in New Jersey or elsewhere, but it could prove dispositive to any number of cases.

The New Jersey State Bar Association, in an amicus brief, also raised concerns about the records kept by the state’s Jury Management Office—or rather, the lack thereof. Without good recordkeeping to track the demographics of juror pools, defendants like Dangcil will find it difficult or impossible to determine whether certain demographic groups really were excluded from, or prevented from participating in, juror selection.

Statistics on the use of Zoom and similar videoconferencing platforms indicate that users are largely younger than the population as a whole. For example, only about 9.5% of Zoom users are 65 or older, yet people in this age group make up 13% of New Jersey’s population.

These numbers do not, however, reveal specific insights into the juror pools of New Jersey or other states. Those numbers will be necessary in order to understand exactly who uses Zoom and other videoconferencing tools, and how that use might affect the makeup of criminal trial juries going forward.