Trials and Litigation in the Era of COVID-19 (VII): NJ Supreme Court Finds Virtual Jury Selection Constitutional, Orders Collection of Juror Demographic Information

This series explores various issues relating to the reopening of Courts in New Jersey in the shadow of COVID-19, including the intersection of safety measures and the rights of litigants.

In October 2020, State v. Dangcil became the first criminal jury trial since the onset of the COVID-19 pandemic. At that time, the court adopted a virtual jury selection process as a public safety measure. This system was meant to allow for jury trials to take place while balancing public safety concerns. However, the defendant, Dangcil, challenged this process as unconstitutional. The Appellate Division denied the defendant’s appeal and the NJ Supreme Court ordered the trial to proceed. See our prior article for more information on the history of Dangcil and the mechanics of the virtual jury process. At trial, the defendant was convicted of multiple offenses and sentenced to 18 years imprisonment but appealed his sentence arguing, again, that the virtual jury selection process was unconstitutional. This time, however, our Supreme Court has chosen to fully address the issue.

Many steps are involved in choosing a jury prior to the actual selection of the jury that sits in the trial. The basic process involves summoning many potential jurors, who are then prescreened and may be excused for various reasons including trial unavailability and medical issues. To adapt to COVID-19, these steps were conducted entirely virtually. Potential jurors are also screened for technical capability including familiarity with video conferencing platforms, access to private internet, and possession of devices that would allow them to serve on a virtual jury. Prospective jurors were supplied with technology including tablets and broadband internet as necessary.  Following the screening, jurors would report in person for the final phase of jury selection. In State v. Dangcil, the defendant challenged the virtual portions of the process, arguing that he was deprived of the right to be present/represented for the initial screening process and that the virtual system failed to ensure that the jury was drawn from a representative cross-section of the community. However, the Court rejected the defendant’s arguments.

First, the Court found that a defendant does not (and never had) a right to be present for that initial administrative phase of juror screening. While defendants have a right to be present at every phase of a trial that implicates their substantive rights, the screening of jurors for scheduling conflicts and other legal bars to jury service does not qualify. The jury selection process was substantially the same as pre-COVID and the defendant failed to show a reason why he had to be present through this administrative screening process.

Second, the jury pool at large is meant to represent a cross-section of the public. Over the years, state and federal courts have found jury pools that exclude certain gender or racial groups to be unconstitutional. The defendant here claimed that the hybrid process impacted the make-up of the jury pool based on studies that COVID-19 has disproportionally affected older people, minority populations, and those of modest means who might not have the necessary technology (especially reliable internet access) to participate in the jury. The theory is that these individuals would have been screened out early in the process, resulting in a demographically skewed jury pool. The Court, however, found this to be purely speculative as there was no evidence that the process excluded any group from the jury pool. This is underscored by the fact that jurors were provided the necessary technology if needed.

Ultimately, the Court elected to uphold the virtual aspects of jury selection. However, there was one new requirement put in place by our Supreme Court: jury demographic data was to be collected. When evaluating the defendant’s arguments that the jury pool was skewed, the Court noted that there was no data to tell either way. Therefore, data will now be collected in order to determine whether some groups are excluded from jury pools. The information would include the prospective juror’s identified race, ethnicity, and gender. Disclosure of this information is voluntary.

While the collection of juror data creates privacy concerns, this is an important step as it demonstrates the Court’s desire to keep the jury pools as fair as possible. Further, rather than turning a blind eye to potential problems for lack of evidence, the Court is actively seeking the evidence out to ascertain whether certain groups are in fact unintentionally excluded from juries under the virtual screening process.

Attorneys at Hoagland Longo have extensive experience in helping litigants navigate the changing guidelines of virtual, hybrid, and in-person court proceedings. Should you need assistance or guidance, please feel free to contact Amelia Lyte and Chad Moore or call us at (732) 545-4717.