1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Wildemar A. Dangcil (A-56-20) (085665)

Argued June 29, 2021-- Decided August 16, 2021

SOLOMON, J., writing for the Court.

The Court considers defendant Wildemar A. Dangcil’s contentions that the hybrid 

jury-selection process implemented by the Judiciary in response to the COVID-19 

pandemic (1) deprived him of his rights to presence and representation and (2) failed to 

ensure him a jury drawn from a representative cross-section of the community.

Jury selection for defendant’s trial was scheduled for April 20, 2020, but was 

adjourned in light of the pandemic. On July 22, 2020, in coordination with 

representatives from the Attorney General’s Office, Office of the Public Defender, 

County Prosecutors Association of New Jersey, and New Jersey State Bar Association, 

the Court established a plan to resume criminal and civil jury selections using a hybrid 

process intended to maintain the core components of pre-pandemic jury operations 

modified to protect the health and safety of jurors, attorneys, parties, and all court users.

Under the predominately virtual selection process, jurors were to be summoned 

consistent with pre-pandemic practices, except that they were to receive a summons 

notice informing them of both the virtual jury-selection process and socially distanced 

trials. Prospective jurors also received a COVID-19 questionnaire. Court administration 

and assignment judges were tasked with prescreening jurors for technological access and 

knowledge, and with providing devices and broadband access as necessary. Judiciary 

staff prescreened jurors for trial availability, medical inability, and other considerations 

consistent with pre-pandemic protocols. All case-specific questioning was conducted 

during virtual voir dire before a judge, counsel, and the parties. Following virtual voir 

dire, a fraction of prospective jurors reported in person to courts for the final phase of 

selection with facemask and social-distancing precautions observed.

New Jersey’s first jury trial under the plan was set to begin in Bergen County on 

September 21, 2020, and defendant’s was selected as the first trial to be conducted. 

During pretrial conferences, defense counsel advised that defendant intended to challenge 

the hybrid jury-selection process, but no such challenge was filed. On the morning of 

September 21 -- after thirteen prospective jurors were interviewed over the course of two 

hours -- defense counsel filed a challenge of the array.
2

Brian McLaughlin, manager of jury programs for the Administrative Office of the 

Courts (AOC), attested that the same Jury Management System used to generate jury 

pools and send out summonses and questionnaires pre-pandemic was used in the hybrid 

process, with the exception of added COVID-19 related materials and the temporary 

disablement of the juror self-deferral option. As they did pre-pandemic, jury managers 

addressed requests for disqualification, excusals, and deferrals in a standardized prescreening process that did not include trial-specific information. Also consistent with 

pre-pandemic practices, juror demographic information including race, ethnicity, and 

gender was not collected.

Regarding defendant’s case, Lourdes Figueroa, jury manager for the Bergen 

County Vicinage, certified that 800 jurors were summoned. Of that list, 197 did not 

respond, 70 summonses were returned as “undeliverable,” 178 prospective jurors did not 

qualify for service under statute, 90 were excused based on statutory factors, and 58 were 

deferred due to calendar conflicts; in the end, 207 potential jurors remained. Only two 

prospective jurors required court-supplied equipment in order to participate; one accepted 

a tablet and one refused a device, which required that individual’s juror service to be 

rescheduled. The juror yield for pools summoned beginning on September 21, 2020 was 

comparable to the Bergen Vicinage’s February 2020 yield.

Defense counsel attacked the hybrid process, claiming a lack of transparency and 

of juror demographic data; the purportedly unclear standards with which prospective 

jurors were excused and deferred; and the possibility that prospective jurors who were 

older, of modest means, and/or lacking in technological access were disproportionately 

excluded. The trial court rejected defendant’s contentions both as time-barred under Rule

1:8-3(b) and on the merits, opining that the pre- and post-pandemic selection processes 

were substantially similar, and that defendant’s arguments were “based on nothing more 

than conjecture and innuendo spun from inaccurate information and rumors.”

After the Appellate Division affirmed, defendant was convicted of and sentenced 

for resisting arrest/eluding, terroristic threats, attempted aggravated arson, and attempted 

aggravated assault. The Court granted direct certification “limited to defendant’s

challenge to the hybrid virtual/in-person jury selection procedure.” 246 N.J. 212 (2021).

HELD: *The pre-voir dire disqualification, excusal, or deferral of jurors is not a 

stage at which defendant is entitled to be present or be represented, and defendant has 

failed to support his representative-cross-section claim.

*In recognition of the important issues raised, but not nearly substantiated, 

in this appeal and to better assist New Jersey courts in preventing potential 

underrepresentation and irregularities stemming from the hybrid process and other 

facially neutral selection procedures, the Court directs the AOC to begin collecting 

jurors’ demographic information.

---
3

1. The trial court correctly determined that defendant’s filed challenge was untimely. 

Rule 1:8-3(b) directs that “[a] challenge to the array shall be decided before any 

individual juror is examined.” Relaxation of that time-bar is granted only upon a prima 

facie showing of actual prejudice to defendant’s right to a fair and impartial jury. Here, 

defendant waited for two hours and through the questioning of thirteen prospective jurors 

before filing his challenge, and counsel’s reliance on notice of a likely challenge to the 

jury pool is unpersuasive. Further, defendant does not set forth a prima facie claim of 

actual prejudice warranting relaxation of Rule 1:8-3(b)’s time-bar. (pp. 17-19)

2. Defendant argues that he was deprived of his constitutional rights to be present and 

represented by counsel during the pre-voir dire disqualification, excusal, and deferral of 

jurors. A defendant’s right to be present at trial and during critical stages of the 

adversarial process is guaranteed by the Sixth Amendment and by Article I, Paragraph 10 

of the State Constitution. Reviewing the statutes that set the criteria for disqualifying 

jurors and that repose discretion for excusals or deferrals in the assignment judges or their 

designees, the Court notes that the process employed here was substantially the same as 

the pre-pandemic process. (pp. 19-21)

3. Federal circuit courts have concluded that routine administrative procedures such as 

the statutory disqualification, excusal, or deferral of prospective jurors are not part of the 

true jury impanelment process and thus not a critical stage of the trial during which the 

parties and counsel must be present. The Court agrees. Defendant fails to provide a 

persuasive reason why he was entitled to be present and represented during the process of 

statutory qualification, excusal, and deferral set in place long prior to the pandemic. 

Further, defendant fails to articulate what vital information he and counsel may have 

gleaned from participation, given that disqualifications, excusals, and deferrals precede 

the revelation of any case-specific information. Nor does the Court see why an excusal 

based on COVID-19 should be distinguished from one based on -- for example --

impending surgery. The Court joins courts from other states in concluding that the prevoir dire process of disqualifying, excusing, and deferring prospective jurors is not a 

stage at which defendants and counsel are entitled to be present. (pp. 21-24)

4. In State v. Vega-Larregui, the Court considered whether the right to a fair grand jury 

is violated by a virtual format allegedly limiting the participation of racial minorities, 

older citizens, and those of modest means. See 246 N.J. 94, 117 (2021). The Court 

rejected the defendant’s representative-cross-section claim, citing a lack of substantiation, 

similar pre- and post-pandemic practices, and attestation that the number of potential 

grand jurors available was “not significantly different” than pre-pandemic. Id. at 127-28. 

The Court also concluded that the virtual process likely increased the participation of 

members of vulnerable demographic groups. Id. at 129. Here, the processes challenged 

-- pre-voir dire excusals and deferrals -- were in place pre-pandemic, and defendant’s 

opposition to the hybrid selection process is actually a challenge to long-standing 

procedures now presented through the “prism” of the COVID-19 crisis. (pp. 24-26)
4

5. A criminal defendant’s right to be fairly tried by an impartial jury is protected by both 

the Federal and the State Constitutions. Under the latter, defendants have “the right to 

trial by a jury drawn from a representative cross-section of the community.” State v. 

Andujar, ___ N.J. ___, ___ (2021) (slip op. at 26-27). To challenge whether a jury pool 

was drawn from a representative cross-section of the community, a defendant is required 

to “(1) identify a constitutionally-cognizable group . . . ; (2) prove substantial 

underrepresentation over a significant period of time; and (3) show discriminatory 

purpose.” State v. Dixon, 125 N.J. 223, 232 (1991). (pp. 26-30)

6. Defendant asserts that, because nationwide COVID-19 statistics show 

disproportionate transmission rates and serious complications among minority 

populations, the disparity must have manifested itself in a skewed jury pool. The 

argument is analogous to one rejected in State v. Coyle, 119 N.J. 194, 213 (1990). One’s 

likelihood of contracting and falling seriously ill due to COVID-19 may have correlative 

ties with race and ethnicity worthy of consideration, but it does not follow that those 

particularly susceptible to, or who have contracted, COVID-19 themselves make up a 

cognizable class under a representative-cross-section analysis. As to technology-based 

arguments, the Court rejected in Vega-Larregui a similar unsupported contention, noting 

-- as was the case here -- that prospective jurors were provided the equipment necessary 

to participate. 246 N.J. at 127-29. Defendant has failed to make a showing that any 

cognizable group -- however identified or classified -- has been excluded from the jury 

venire in this case, and the Court therefore does not reach the question of whether age or 

financial means, for example, might be a cognizable group for purposes of a challenge to 

a jury venire. Second, defendant failed to demonstrate substantial underrepresentation 

over a significant period of time. Third and finally, the jury-selection procedure 

employed here was facially neutral and defendant has not shown that it was applied in a 

discriminatory manner. Defendant fails to meet the requirements of Dixon. (pp. 30-35)

7. The validity of a jury-selection process is not static, and the exercise of special care in 

unusual circumstances is of the utmost importance. Defendant contends that excusal and 

deferral records have not been maintained as required by N.J.S.A. 2B:20-9(b) -- a claim 

that cannot be substantiated as such records were never requested. Suffice it to say, those 

records should be kept. Further, in recognition of the important issues raised, but not 

nearly substantiated, in this appeal and to better assist New Jersey courts in preventing 

potential underrepresentation and irregularities stemming from the hybrid process and 

other facially neutral selection procedures, the Court directs the AOC to begin collecting 

jurors’ demographic information. Disclosure should be voluntary and cover a juror’s 

identified racial identity, ethnicity, and gender categories. (pp. 35-36)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, 

FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-56 September Term 2020

085665

State of New Jersey,

Plaintiff-Respondent,

v.

Wildemar A. Dangcil,

Defendant-Appellant.

On appeal from the

Superior Court, Law Division, Bergen County.

Argued

June 29, 2021

Decided

August 16, 2021

Brian J. Neary argued the cause for appellant (Brian J. 

Neary, of counsel and on the briefs, and Lois De Julio, on 

the briefs.)

Jaimee M. Chasmer, Assistant Prosecutor, argued the 

cause for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; Jaimee M. Chasmer, of counsel and 

on the briefs).

Joseph E. Krakora, Public Defender, argued the cause for 

amici curiae Public Defender of New Jersey and 

American Civil Liberties Union of New Jersey (Joseph E. 

Krakora, Public Defender, and American Civil Liberties 

Union of New Jersey Foundation, attorneys; Joseph J. 

Russo, Deputy Public Defender, Alison Perrone, First 

Assistant Deputy Public Defender, John P. Flynn,
2

Assistant Deputy Public Defender, Jeanne LoCicero, and 

Alexander Shalom, on the brief).

Lawrence S. Lustberg argued the cause for amicus curiae 

New Jersey State Bar Association (Gibbons and New 

Jersey State Bar Association, attorneys; Lawrence S. 

Lustberg, Michael R. Noveck, and Domenick 

Carmagnola, President, New Jersey State Bar 

Association, on the brief).

Marissa Koblitz Kingman argued the cause for amicus 

curiae Association of Criminal Defense Lawyers of New 

Jersey (Fox Rothschild, attorneys; Matthew S. Adams, of 

counsel and on the brief, and Marissa Koblitz Kingman 

and Arrianna T. Diamantis, on the brief).

Lila B. Leonard, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New Jersey 

(Andrew Bruck, Acting Attorney General, attorney; Lila 

B. Leonard, of counsel and on the brief, and Valeria 

Dominguez, Mercedes Robertson, Jeffrey Olsen, and 

Jesse Magliulo, Deputy Attorneys General, on the brief).

Linda A. Shashoua, Special Deputy Attorney 

General/Acting Assistant Camden County Prosecutor,

argued the cause for amicus curiae County Prosecutors 

Association of New Jersey (Esther Suarez, President,

County Prosecutors Association, attorney; Linda A. 

Shashoua, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Defendant Wildemar A. Dangcil was awaiting trial when the COVID-19 

pandemic hit and altered how we live, work, and conduct criminal trials. 

Defendant’s trial was adjourned for five months and, in the interim, the 
3

Judiciary implemented a primarily virtual, hybrid jury-selection process with 

the aim of balancing public health and defendants’ constitutional rights, while 

preserving the majority of pre-pandemic practices and procedures.

Defendant’s trial was Bergen County’s first to utilize the hybrid process. 

During the virtual phase of jury selection, defense counsel filed an Order to 

Show Cause challenging the array as not being drawn from a representative 

cross-section of the community. The trial court rejected the challenge. After 

the Appellate Division affirmed and remanded for resumption of the trial, 

defendant was convicted of multiple offenses, including attempted aggravated 

arson. He was sentenced to an aggregate eighteen-year term of imprisonment.

We granted direct certification, and before us defendant contends that 

the hybrid jury-selection process deprived him of his rights to presence and 

representation and failed to ensure him a jury drawn from a representative 

cross-section of the community. Though the challenge is to the new hybrid 

process, it is also directed at pre-pandemic practices -- most notably pre-voir 

dire juror excusals and deferrals -- that have remained largely unchanged

during the COVID-19 crisis.

We are asked to consider those longstanding practices through the new 

“prism” of COVID-19. We hold that the pre-voir dire disqualification, 

excusal, or deferral of jurors is not a stage at which defendant is entitled to be 
4

present or be represented and that defendant has failed to support his 

representative-cross-section claim. We therefore affirm. 

I.

A.

Following a domestic incident not relevant to this appeal, defendant was 

charged in an August 2019 Bergen County indictment with second-degree 

resisting arrest/eluding, contrary to N.J.S.A. 2C:29-2(b); fourth-degree 

contempt for violating an order entered under the Prevention of Domestic 

Violence Act of 1991, contrary to N.J.S.A. 2C:29-9(b); third-degree terroristic 

threats, contrary to N.J.S.A 2C:12-3(a); second-degree attempted aggravated 

arson, contrary to N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:17-1(a)(1); and firstdegree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3.

Jury selection for defendant’s trial was scheduled for April 20, 2020, but

this Court suspended new jury selections and trials on March 12, 2020 in 

response to the COVID-19 pandemic. See Sup. Ct. of N.J., Notice -- COVID19 Coronavirus -- Status of Court Operation -- Immediate and Upcoming 

Plans, at 1 (Mar. 12, 2020). Defendant’s case was adjourned until the 

resumption of jury trials.

On July 22, 2020, this Court established a plan to resume criminal and 

civil jury selections using a hybrid process intended to “maintain[] the core 
5

components of pre-pandemic jury operations . . . modified to protect the health 

and safety of jurors, attorneys, parties, and all court users.” Sup. Ct. of N.J., 

Order -- Resuming Criminal and Civil Jury Trials, at 1-2 (July 22, 2020). 

Under the predominately virtual selection process, jurors were to be

summoned consistent with pre-pandemic practices, except that they were to 

receive a summons notice informing them of both the virtual jury-selection 

process and socially distanced trials. Id. at 4. Prospective jurors also received

a COVID-19 questionnaire. Ibid. Court administration and assignment judges 

were tasked with prescreening jurors for technological access and knowledge,

and with providing devices and broadband access as necessary. Id. at 2-3. 

Judiciary staff prescreened jurors for trial availability, medical inability,

and other considerations consistent with pre-pandemic protocols, with COVID19 concerns “not related to substantiated medical inability” brought before a 

judge and all case-specific questioning conducted during virtual voir dire 

before a judge, counsel, and the parties. Id. at 4-5. Following virtual voir 

dire, a fraction of prospective jurors reported in person to courts for the final 

phase of selection with facemask and social-distancing precautions observed. 

Id. at 2, 5. The plan was produced in coordination with the Judiciary’s PostPandemic Stakeholder Coordinating Committee, which included 

representatives from the Attorney General’s Office, Office of the Public 
6

Defender (OPD), County Prosecutors Association of New Jersey (CPA), and 

New Jersey State Bar Association (NJSBA). Sup. Ct. of N.J., Notice --

Resuming Criminal and Civil Jury Trials, at 3 (July 22, 2020).

Additional guidance was provided several weeks later, specifying that 

jurors who did not meet the disqualification criteria of N.J.S.A. 2B:20-1 or 

were seeking excusal under N.J.S.A. 2B:20-10 were required to contact the 

Jury Management Office and supply substantiating documentation. Sup. Ct. of 

N.J., Notice -- COVID-19 -- Update on Resumption of Criminal and Civil Jury 

Trials; Next Steps, at 1-2 (Sept. 11, 2020). Jurors were contacted regarding 

the virtual format and related safety precautions and advised that they needed 

to submit a note from a healthcare provider to substantiate claims of medical 

inability to report. Id. at 2. Jurors were also prescreened for technological

capability, including familiarity with virtual conferencing platforms, access to 

a private internet connection, and possession of a device with a functioning 

web camera, speaker, and microphone. Id. at 2-3. The Judiciary provided 

tablets and broadband to prospective jurors as necessary. Id. at 3. New 

Jersey’s first jury trial was set to begin in Bergen County on September 21,

2020. Ibid.
7

B.

Defendant’s trial was selected as the first to be conducted in Bergen 

County. During pretrial conferences on September 16 and 18, defense counsel 

advised that defendant intended to challenge the hybrid jury-selection process,

but no such challenge was filed. Finally, on the morning of September 21 --

after thirteen prospective jurors were interviewed over the course of two hours 

-- defense counsel filed an Order to Show Cause challenging the array and 

sought a stay. A hearing was scheduled for September 28, but selection 

continued over four days with 178 prospective jurors interviewed and sixtythree selected for in-person questioning to be conducted on September 29.

In advance of the hearing, Brian McLaughlin, manager of jury programs 

for the Administrative Office of the Courts (AOC), and Lourdes Figueroa, jury 

manager for the Bergen Vicinage, presented certifications. McLaughlin 

attested that the same Jury Management System used to generate jury pools 

and send out summonses and questionnaires pre-pandemic was used in the 

hybrid process with three exceptions: (1) juror summons documents were 

modified to inform jurors of the virtual format and related requirements, (2) 

the juror self-deferral option1 was temporarily disabled -- requiring prospective 

1 Typically, jurors are able to reschedule their own service via New Jersey’s 

Juror eResponse Portal by opting to “Defer Service” and selecting a specific 

future date, provided that they do so more than a week prior to their reporting 
8

jurors to contact Jury Management to request deferrals, and (3) additional 

standardized COVID-19-related communications were sent to jurors, including 

a COVID-19 questionnaire. In keeping with pre-pandemic practices, jury 

managers addressed requests for disqualification, excusals, and deferrals in a 

standardized pre-screening process that did not include trial-specific 

information such as familiarity with the parties or counsel. McLaughlin 

reported that, also consistent with pre-pandemic practices, juror demographic 

information including race, ethnicity, and gender was not collected.

Regarding defendant’s case, Figueroa certified that 800 jurors were 

summoned. Of that list, 197 did not respond or complete the summons, 70

summonses were returned as “undeliverable,” 178 prospective jurors 

substantiated that they did not qualify for service under N.J.S.A. 2B:20-1, 90

were excused based on substantiated N.J.S.A. 2B:20-10 factors, and 58 were 

deferred due to calendar conflicts; in the end, 207 potential jurors remained. 

Only two prospective jurors required court-supplied equipment in order to 

participate; one accepted a tablet and one refused a device, which required that 

individual’s juror service to be rescheduled. A spreadsheet memorializing all 

232 responses to the COVID-19 questionnaire, including duplicates, was

date. See Frequently Asked Questions About Juror Service in New Jersey, at 

7, https://www.njcourts.gov/jurors/assets/juryfaq.pdf.
9

provided to the trial court in advance of selection. The juror yield -- the 

number of qualified responsive jurors divided by summonses issued -- for 

pools summoned beginning on September 21, 2020 was 22.38%, according to 

Figueroa, comparable to the Bergen Vicinage’s February 2020 yield of 

28.37%.2

During the hearing, defense counsel sought to question Figueroa and 

attacked the hybrid process based on a claimed lack of transparency and lack 

of juror demographic data; the purportedly unclear standards with which 

prospective jurors were excused and deferred; and the possibility that 

prospective jurors who were older, of modest means, and/or lacking in 

technological access were disproportionately excluded. Counsel 

acknowledged that prospective juror demographic data had never been 

collected or shared in the past, but noted that the hybrid process itself was 

2

 Juror-yield data provided to the Court by the AOC for February 2020, 

September 2020, and June 2021 differs from the figures in the record. 

Additionally, Bergen County’s yield rate surpassed the state rate in each month 

-- 32.95% to 27.27% in February 2020, 27.97% to 13.24% in September 2020 

with only three counties reporting, and 29.90% to 23.73% in June 2021. In 

limited instances, juror-yield rates have increased from February 2020 to June 

2021, most notably in Camden County where the rate has moved up by nearly 

a percentage point -- 33.02% to 33.82%. This data does not detail the 

representativeness of these juror pools, but it supports the general proposition 

that although Bergen County’s yield has decreased by several percentage 

points under the hybrid model, those yields still exceed the pre-pandemic 

statewide average. 
10

new, stating, “I’m not saying that the process was defective. . . . All we know 

is that we got a certification from Ms. Figueroa, and I believe a certification 

from counsel, saying this is what happened. I don’t know that for certain. I 

don’t know what went into those numbers.” 

The trial court rejected defendant’s contentions both as time-barred 

under Rule 1:8-3(b) and on the merits, opining that the pre-pandemic and postpandemic selection processes were substantially similar, and that defendant’s 

arguments were “based on nothing more than conjecture and innuendo spun 

from inaccurate information and rumors.” The court noted that prospective 

jurors were provided with technological equipment and access as necessary,

that jury managers had not made determinations previously addressed by 

judges on the record, that the demographic information sought by defendant 

had never been collected, and that -- far from secret -- details concerning the 

hybrid plan had been made public months in advance. The court reported that 

technological issues were infrequent and readily addressed to ensure that each 

prospective juror was able to participate. As for the demographic makeup of 

the pool, the trial court stated

I have not heard a word from defense counsel about the 

demographic makeup of the jurors that we interviewed 

during the virtual phase of jury selection in this case. 

We didn’t hear it, because there isn’t a basis for 

objection. It would have been entirely without merit. 

The jurors we interviewed most certainly represented a 

----
11

cross-section of the community and, based on our 

experience in this case so far, the hybrid jury selection 

process implemented by the Supreme Court will be a 

success. 

Defendant’s application was denied in its entirety along with his request 

to stay proceedings. The Appellate Division granted defendant’s emergent 

application claiming that the hybrid process lacked transparency and failed to 

ensure a jury pool drawn from a representative cross-section of the 

community, affirmed the trial court’s denial, and remanded for resumption of 

the trial. The Appellate Division agreed that defendant’s challenge was 

untimely under Rule 1:8-3(b) and that he had failed to show actual prejudice 

permitting relaxation of the time bar. On the merits, the Appellate Division 

concluded that defendant failed to rebut the presumption that jury selection 

was valid and produced no evidence that the selection was non-random or 

excluded any constitutionally cognizable group. 

We denied defendant’s motion for emergent relief pursuant to Rule 2:9-8 

without prejudice to defendant’s right to file a post-trial motion for direct 

certification. Defendant’s trial resumed on October 19, and he was convicted 

on October 23 of second-degree resisting arrest/eluding, third-degree 

terroristic threats, second-degree attempted aggravated arson, and third-degree 

attempted aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2), as a lesserincluded offense to attempted murder. 
12

Defendant, again, sought emergent relief under Rule 2:9-8 and we,

again, denied without prejudice to defendant’s right to file a motion for direct 

certification following entry of a judgment of conviction. In March of this 

year, defendant was sentenced to an aggregate eighteen-year term, with nine 

years -- those attributable to defendant’s attempted-aggravated-arson 

conviction -- subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(c). 

Defendant thereafter filed a motion for direct certification pursuant to 

Rule 2:12-2. We granted certification “limited to defendant’s challenge to the 

hybrid virtual/in-person jury selection procedure.” 246 N.J. 212 (2021). We 

also granted leave to participate as amici curiae to the Attorney General, CPA,

NJSBA, OPD, American Civil Liberties Union of New Jersey (ACLU), and 

Association of Criminal Defense Lawyers of New Jersey (ACDL).

II.

A.

1.

Defendant contends that the pool from which the jury for his case was 

selected likely did not represent a cross-section of the community because of

the disproportionate effects COVID-19 has had on racial and ethnic minorities 

and women. He points to Centers for Disease Control and Prevention (CDC) 

data showing that Black and Hispanic Americans have been significantly more 
13

likely to contract, require hospitalization for, and die from COVID-19 than 

Caucasian populations as evidence that it was “probable” that a 

disproportionately low number of Black and Hispanic Americans were 

available for jury service in his trial. Similarly, defendant cites a study 

detailing how women have disproportionately borne additional childcare 

demands during the pandemic, presumably impacting the ability of women to 

serve on juries. 

Defendant acknowledges that he is unable to demonstrate an actual lack 

of representation, but attributes that inability to Jury Management’s failure to 

maintain demographic records, the denial of his discovery request, and the 

absence of trial counsel during the excusal process. To the latter point,

defendant further argues that the processing of hardship excusals and deferrals

outside his and counsel’s presence denied him of both his Sixth Amendment 

right to counsel during a critical stage of his proceedings and his own 

constitutional right to be present at all stages of his trial -- including jury 

empanelment.

2.

Amici curiae NJSBA, ACDL, OPD, and ACLU all support defendant’s 

general position. The NJSBA asserts that juror excusals and deferrals outside 

the presence of defendant and counsel infringed on defendant’s right to 
14

participate and deprived defense counsel of a valuable opportunity to assess 

jurors. It adds that temporarily disabling the self-deferral option provided Jury 

Management with additional discretion with respect to deferrals -- the scope of 

which cannot be ascertained because records are not maintained.

The ACDL asserts that the hybrid process places an additional 

requirement on prospective jurors -- reliable internet access -- that cannot be 

satisfied simply by providing devices and broadband and that inadequately 

accounts for COVID-19’s disparate impact on older and minority populations. 

The ACDL adds that the hybrid process should be used only upon the informed 

consent and knowing waiver of a defendant and argues that defendant is 

entitled to juror data and that, if none exists, the trial court must restart the 

process and collect such data. 

The OPD and ACLU, in their joint appellate brief, advance two proposed 

safeguards: having judges rule on all COVID-19-related excusals and 

requiring the collection of prospective juror demographic information. 3

3

 The ACDL, OPD, and ACLU also assert that the Attorney General’s 

representation of the AOC is a conflict of interest, an issue not raised by the 

parties and therefore not considered by the Court. See State v. O’Driscoll, 215 

N.J. 461, 479-80 (2013) (“[A]s a general rule, an amicus curiae must accept 

the case before the court as presented by the parties and cannot raise issues not 

raised by the parties.” (alteration in original) (quoting State v. Lazo, 209 N.J. 

9, 25 (2012))).
15

B.

1.

The State counters that defendant relies only on the “likely” 

disproportionate effect of COVID-19 on minority and female prospective 

jurors -- a position the State characterizes as contrary to the observations of the 

trial court, the prosecutor, and even defense counsel during the Order to Show 

Cause hearing. The State adds that defendant’s argument that he had a right to 

be present and represented during excusals and deferrals should both be 

deemed waived for failure to raise the objection below4and rejected in the 

same manner that numerous other jurisdictions have declined to recognize a

right to presence and representation during the production of a jury venire.

2.

The Attorney General and CPA echo the State’s arguments and each 

other’s. With respect to defendant’s representative-cross-section challenge,

4

 “Generally, an appellate court will not consider issues, even constitutional 

ones, which were not raised below,” State v. Galicia, 210 N.J. 364, 383 (2012), 

however “the limitation on the scope of appellate review is not absolute,” State 

v. Robinson, 200 N.J. 1, 20 (2009). If “[t]he issue is an important one of 

public concern and ought be considered; there is no question as to our power to 

do so.” City of Newark v. Pulverman, 12 N.J. 105, 108 (1953); see also

Brown v. Shaw, 174 N.J. Super. 32, 39 (App. Div. 1980). We acknowledge 

the importance of a defendant’s right to presence and representation and thus 

choose to address the issue on the merits.
16

the Attorney General rebuts defendant’s claim of underrepresentation due to 

technological access by noting that the hybrid plan provides prospective jurors 

with necessary equipment. Defendant is unable to demonstrate that any 

disparity stemming from hardship excusals and deferrals was unreasonable 

over a sufficient period of time or the result of systematic efforts to exclude 

cognizable populations, according to the Attorney General. The CPA concurs,

finding defendant’s representative-cross-section claim to be speculative and 

reliance on CDC data lacking in any causal tie between minority COVID-19 

rates and substantiated grounds for excusal.

As for defendant’s argument that he had a right to be present and 

represented during excusals and deferrals, the Attorney General submits that 

defendant waived the argument below. With regard to the merits of the claim,

such excusals -- made under set statutory criteria -- are administrative and 

have been handled by assignment judges and designees pre- and postpandemic. The CPA adds that a defendant’s right to be present is not absolute,

excusals are generally granted or denied prior to any disclosure of casespecific information, and the hybrid plan’s removal of the self-deferral option 

likely increased -- rather than decreased -- the number of prospective jurors.
17

III.

A.

As an initial matter, the trial court correctly determined that defendant’s 

Order to Show Cause was untimely. Rule 1:8-3(b) directs that “[a] challenge 

to the array shall be decided before any individual juror is examined.” Accord

State v. Butler, 155 N.J. Super. 270, 271 (App. Div. 1978). As this Court has 

explained, relaxation of Rule 1:8-3(b)’s time bar is to “be granted only where 

there is a prima facie showing of actual prejudice to defendant’s right to a fair 

and impartial jury.” State v. Simon, 161 N.J. 416, 481 (1999). Otherwise,

“time limitations are ‘strictly enforced’ because to do otherwise would 

‘impede the orderly administration of [the] criminal justice system.’” Ibid.

(alteration in original) (quoting State v. Gerald, 113 N.J. 40, 128 (1988)).

Here, defendant waited for two hours and through the questioning of 

thirteen prospective jurors before filing his Order to Show Cause. Counsel’s 

contention that the State and trial court were on notice of a likely challenge to 

the jury pool is unpersuasive. To agree with defendant would make courts and 

opposing parties responsible for what a defendant may do, including the filing 

of untimely challenges. Such a system would be ripe for abuse and no doubt 

impede the efficient functioning of our courts. Cf. H.C. Equities, LP v. 

County of Union, ___ N.J. ___ (2021) (slip op. at 29) (rejecting an 
18

interpretation of the New Jersey Tort Claims Act that “would require counsel 

for a public entity to review every letter, e-mail, or other communication 

received from counsel for a potential claimant and determine whether any such 

communication, when combined with other communications, might constitute 

notice of a tort claim”); State v. Irving, 114 N.J. 427, 433 (1989) (“The 

purpose of a notice of alibi is ‘to avoid surprise at trial by the sudden 

introduction of a factual claim [that] cannot be investigated unless the trial is 

recessed to that end.’” (alteration in original) (quoting State v. Garvin, 44 N.J. 

268, 272-73 (1965))); State v. Wyles, 462 N.J. Super. 115, 122 (App. Div. 

2020) (“The reciprocal discovery provision in [Rule] 3:13-3 . . . . entitle[s] 

[the State] to know in advance what evidence a defendant intends to use at trial 

so that it may have a fair opportunity to investigate the veracity of such proof.” 

(alterations and omission in original) (quoting State v. Williams, 80 N.J. 472, 

478 (1979))).

Further, defendant does not set forth a prima facie claim of actual 

prejudice warranting relaxation of Rule 1:8-3(b)’s time bar. To the contrary,

defense counsel specifically clarified at the Order to Show Cause hearing that 

he was “not saying that the process was defective.” As discussed infra, we 

conclude that defendant’s right to a fair and impartial jury was not infringed by 

the hybrid selection process.
19

B.

We first address defendant’s claim that he was deprived of his rights to

be present and represented by counsel during the pre-voir dire disqualification,

excusal, and deferral of jurors. We conclude that the process of whittling 

down the jury pool based on statutory criteria and scheduling conflicts does 

not implicate a defendant’s substantive rights.

A defendant’s right to be present at trial is guaranteed by the Sixth 

Amendment of the United States Constitution and Article I, Paragraph 10 of

the New Jersey Constitution. State v. Tedesco, 214 N.J. 177, 189 (2013). This 

right is buttressed by our court rules, which state that “[t]he defendant shall be 

present at every stage of the trial, including the impaneling of the jury . . . ,

unless otherwise provided by Rule.” R. 3:16(b). The Sixth Amendment 

similarly guarantees defendants the right to counsel during “critical stage[s]”

of the adversarial process, State v. Harris, 181 N.J. 391, 440 (2004), and 

Article I, Paragraph 10 of our State Constitution “is ‘consonant with the 

Federal Constitution on the issue of when the right to counsel is triggered,’”

State v. A.O., 198 N.J. 69, 82 (2009) (quoting State v. P.Z., 152 N.J. 86, 110 

(1997)). 

We have held that jury voir dire is a stage that triggers a defendant’s 

right to be present and to be represented by counsel. See State v. Colbert, 190 
20

N.J. 14, 21 (2007) (presence); State v. McCombs, 81 N.J. 373, 377-78 (1979)

(counsel). However, a defendant’s right to be present “is not absolute,” State 

v. Luna, 193 N.J. 202, 210 (2007), and the right to counsel is limited to 

“‘critical stage[s]’ of the prosecution,” meaning stages “in which the 

substantial rights of the accused may be affected,” A.O., 198 N.J. at 82. 

In the context of jury selection, prospective jurors are disqualified from 

service by statute if they are under the age of eighteen, unable to read or 

understand English, or have a mental or physical disability preventing their 

service, among other factors. N.J.S.A. 2B:20-1. Also, qualified prospective 

jurors may seek to be excused if they are age seventy-five or older or if service 

would create a medical, financial, or similarly “severe” hardship. N.J.S.A. 

2B:20-10. Upon the denial of a request to be excused, the vicinage assignment 

judge may direct that the prospective juror’s service be deferred. N.J.S.A. 

2B:20-11. Excusals and deferrals are uniquely within the discretion of 

assignment judges or their designees. See N.J.S.A. 2B:20-9.

The process employed here was substantially the same as that followed 

before the COVID-19 pandemic. Minor adjustments included the temporary 

disabling of the automatic-deferral option, leaving Jury Management to 

address such requests consistent with N.J.S.A. 2B:20-11. A COVID-19-

specific questionnaire -- asking prospective jurors whether they had tested 
21

positive for, or been exposed to, COVID-19 and whether they had concerns 

relating to COVID-19-related precautions, among other similar questions --

was also distributed as permitted by statute. See N.J.S.A. 2B:20-3(a) (“The 

Assignment Judge may direct that questionnaires be sent to potential jurors,

requesting that they provide pertinent information concerning their 

qualifications for jury service, and any claims for exemption or deferral.”).

Our courts have not previously considered whether the statutory 

disqualification, excusal, or deferral of prospective jurors by an assignment 

judge or designee is a stage at which a defendant is entitled to presence and 

representation, but federal circuit courts have concluded that such “routine 

administrative procedures relating to jury selection are not part of the true jury 

impanelment process in which parties and counsel have a right to participate.” 

United States v. Greer, 285 F.3d 158, 167 (2d Cir. 2002); accord, e.g., United 

States v. Moreland, 703 F.3d 976, 982-83 (7th Cir. 2012). In Moreland, the 

defendants challenged the excusal of several potential jurors in advance of voir 

dire due to vacation plans, business commitments, and employment obligations 

that would have created hardships if they were selected to serve on a lengthy 

trial. 703 F.3d at 982. The Seventh Circuit rejected the defendants’ argument 

that the excusals violated their right to presence under Rule 3:16(b)’s federal 

analogue, Fed. R. Crim. P. 43(a)(2), reasoning that excusal requests and 
22

related actions preceded the jury empanelment at which defendants had a right 

to be present and that it was “difficult to see what the defendant could have 

added” to the “general qualification of the jury.” Id. at 982-83 (quoting 

Henderson v. Dugger, 925 F.2d 1309, 1316 (11th Cir. 1991)). Likewise, in 

Greer, the Second Circuit reaffirmed its prior holdings that “hardship 

questioning is not a part of voir dire -- and thus not a critical stage of the trial 

during which the parties and counsel must be present.” 285 F.3d at 167-68 

(reviewing cases).

We find that the same principles hold true here. Defendant fails to 

provide a persuasive reason why he was entitled to be present and represented 

during the process of statutory qualification, excusal, and deferral set in place 

long prior to the pandemic. Indeed, it is difficult to envision how defendant 

and counsel could have meaningfully participated in a process in which jurors 

were removed based on substantiated hardships, scheduling conflicts, and 

similar considerations. Further, defendant fails to articulate what vital 

information he and counsel may have gleaned from participation, given that

disqualifications, excusals, and deferrals precede the revelation of any casespecific information. To recognize this process as a critical stage would 

require the participation of countless sets of parties and counsel on the off

chance that one of the prospective jurors will be directed to a particular case. 
23

Alternatively, defendant and amici suggest that the importance of the 

stage may depend on whether the excusal or deferral is related to COVID-19. 

But basing a right on the unknowable answer of a prospective juror creates a 

litany of practical complications, and we strain to see why an excusal based on 

-- for example -- impending surgery would be less constitutionally significant 

than an excusal due to having recently contracted COVID-19. See Moreland,

703 F.3d at 983 (deciding that “[p]racticality dictates” finding that the excusal 

process precedes jury empanelment). 

We therefore decline defendant’s invitation to recognize a new critical 

stage in the prosecution of a criminal defendant. Rather, we join sister courts 

in other states in expressly concluding that the pre-voir dire process of 

disqualifying, excusing, and deferring prospective jurors is not a stage at 

which defendants and counsel are entitled to be present. See Orme v. State,

896 So. 2d 725, 737 (Fla. 2005); Commonwealth v. Barnoski, 638 N.E. 2d 9,

13-14 (Mass. 1994); Davis v. State, 767 So. 2d 986, 992 (Miss. 2000); State v. 

Sanders, 13 P.3d 460, 467-68 (N.M. 2000); State v. Hyde, 530 S.E. 2d 281,

291-92 (N.C. 2000).

Having determined that defendant and counsel were not entitled to be 

present during the excusal and deferral process, we turn to defendant’s final 
24

contention: that the hybrid selection process nonetheless failed to ensure a 

jury drawn from a representative cross-section of the community.

C.

1.

Earlier this year we had occasion to consider an issue similar to the one 

before us: whether a criminal defendant’s right to a fair grand jury is violated 

by a virtual format allegedly limiting the participation of racial minorities,

older citizens, and those of modest means. See State v. Vega-Larregui, 246 

N.J. 94, 117 (2021). In Vega-Larregui, as in this appeal, certifications were 

submitted from statewide and county officials stating that the grand-jury 

process had “remained largely unchanged,” with disqualifications, excusals,

and reschedulings handled in the same standardized manner as they had been 

before, and with the Judiciary providing technological equipment and training 

to prospective jurors to facilitate full participation. Id. at 109-10. We rejected 

the defendant’s representative-cross-section claim, citing a lack of 

substantiation, markedly similar pre- and post-pandemic practices, and 

attestation that the number of potential jurors available for virtual grand juries 

was “not significantly different” than were available pre-pandemic. Id. at 127-

28. To the contrary, we concluded that the virtual process likely increased --
25

rather than decreased -- the participation of members of vulnerable 

demographic groups. Id. at 129.

We recognize here the limited applicability of Vega-Larregui -- most 

notably the fact that the defendant’s grand jury was selected pre-pandemic -- to 

our case, but we are nonetheless informed by our discussion there.

We also find that the specific processes challenged here -- pre-voir dire 

excusals and deferrals -- were in place pre-pandemic and that defendant’s 

opposition to the hybrid selection process is actually a challenge to longstanding procedures now presented through the “prism” of the COVID-19 

health crisis. The certifications from McLaughlin and Figueroa and our own 

directives evidence that jurors were/are selected through the hybrid process in 

substantially the same way that they were selected pre-pandemic, save for 

modified summons documents, disabled juror self-deferral, and additional 

standardized communications including the COVID-19 questionnaire. Jurors 

were required to appear before a judge or designee before being excused or 

deferred for COVID-19 concerns “not related to substantiated medical 

inability,” see Order -- Resuming Criminal and Civil Jury Trials, at 5, and 

Judiciary staff prescreened prospective jurors for technological capabilities 

and provided equipment as necessary to ensure full participation. We note that 
26

amici NJSBA and OPD were among the stakeholders whose input was elicited 

in crafting those adaptations.

To compare the practical effects of those adjusted practices, defendant 

relies largely on general CDC data that is not specific to New Jersey, let alone 

Bergen County, and juror-yield statistics for only Bergen County -- and for 

only February 2020 and part of September 2020. Those statistics, as detailed, 

differ by just a few percentage points and do not reveal the over- or 

underrepresentation of any specific group.

It is with that guidance and having recognized those limitations that we 

proceed to consider defendant’s representative-cross-section claim.

2.

A criminal defendant’s “constitutional right to be fairly tried by an

impartial jury” is protected by both the Sixth Amendment of the United States 

Constitution and Article I, Paragraph 10 of the New Jersey Constitution. State 

v. Little, 246 N.J. 402, 414 (2021) (quoting State v. Williams, 93 N.J. 39, 61 

(1983)). That right under Article I, Paragraph 10 of the State Constitution, in 

conjunction with Paragraphs 5 and 9, guarantees “defendants ‘the right to trial 

by a jury drawn from a representative cross-section of the community.’” State 

v. Andujar, ___ N.J. ___, ___ (2021) (slip op. at 26-27) (quoting State v. 
27

Gilmore, 103 N.J. 508, 524 (1986));5see also Taylor v. Louisiana, 419 U.S. 

522, 528 (1975) (“[T]he selection of a petit jury from a representative cross 

section of the community is an essential component of the Sixth Amendment 

right to a jury trial.”). Thus, “in all criminal prosecutions the defendant is 

entitled to trial by an impartial jury without discrimination on the basis of 

religious principles, race, color, ancestry, national origin, or sex.” Gilmore,

103 N.J. at 524. The representative-cross-section requirement “appl[ies] both 

to the initial selection of the venire and to the selection of the petit jury from 

the venire.” State v. Fuller, 182 N.J. 174, 195 (2004).

Jury-selection processes are presumed valid and a defendant challenging

a jury-selection process “must show by a preponderance of the believable 

evidence that the attacked process is fatally flawed.” State v. Long, 204 N.J. 

Super. 469, 485 (Law Div. 1985). To challenge whether a jury pool was 

drawn from a representative cross-section of the community, a defendant is 

required to

(1) identify a constitutionally-cognizable group, that is,

a group capable of being singled out for discriminatory 

treatment; (2) prove substantial underrepresentation 

over a significant period of time; and (3) show 

5

 Following oral argument, defendant and the NJSBA filed submissions under 

Rule 2:6-11(d), citing Andujar as support for their contentions. Andujar

involved a specific prospective juror at a distinct stage of jury selection, and 

we therefore find our decision there to be largely inapplicable to the case at 

bar.
28

discriminatory purpose either by the strength of his 

statistical showing or by showing the use of racially 

non-neutral selection procedures to support the 

inference of discrimination raised by substantial 

underrepresentation.

[State v. Dixon, 125 N.J. 223, 232 (1991).]6

If a defendant establishes all three prongs, the burden then shifts to the State,

which must show “that a significant state interest is manifestly and primarily 

advanced by those aspects of the jury selection process that result in 

disproportionate exclusion of the distinctive group.” State v. Ramseur, 106 

N.J. 123, 216-17 (1987).

6

 Dixon cited State v. Ramseur, 106 N.J. 123 (1987), for the proposition that a 

defendant’s burden is the same under both a representative-cross-section and 

equal-protection claim. See Dixon, 125 N.J. at 232. Ramseur, however,

actually bifurcated the second and third prongs of the analyses based on United 

States Supreme Court cases that appeared to suggest that an equal-protection 

claim required a greater showing than a Sixth Amendment representativecross-section claim. See 106 N.J. 215-16. We interpret Dixon to confirm that, 

despite the subtle apparent differences, the two claims require identical 

showings and are to be treated as congruous. In considering defendant’s 

representative-cross-section claim, therefore, we rely on the more recent, 

stringent standard of Dixon, which shares important characteristics with the 

United States Supreme Court’s more recent articulation of the relevant 

standard. See Berghuis v. Smith, 559 U.S. 314, 327 (2010) (“To establish a 

prima facie violation of the fair-cross-section requirement, . . . a defendant 

must prove that: (1) a group qualifying as ‘distinctive’ (2) is not fairly and 

reasonably represented in jury venires, and (3) ‘systematic exclusion’ in the 

jury-selection process accounts for the underrepresentation.” (quoting Duren

v. Missouri, 439 U.S. 357, 364 (1979))).
29

Our rules and statutes pertaining to jury selection “are designed to 

pursue the goal of producing a jury in each case that is ‘as nearly impartial as 

the lot of humanity will admit.’” State v. Tinnes, 379 N.J. Super. 179, 183 

(App. Div. 2005) (quoting Williams, 93 N.J. at 60). The objective is to 

“produce a pool of jurors that truly reflect community standards and in which 

all have an equal chance of serving.” Long, 204 N.J. Super. at 485 (footnote 

omitted). 

“Equal chance” is the operative phrase because the representative-crosssection requirement does not guarantee proportional representation of each 

demographic group within a community. Fuller, 182 N.J. at 195. The 

representative-cross-section requirement serves to “make[] possible a diversity 

of perspectives that fosters an ‘overall impartiality of the deliberative 

process,’” ibid. (emphasis added) (quoting Gilmore, 103 N.J. at 525), “not to 

guarantee proportional representation of every diverse group on every jury, let 

alone to mandate disproportional representation by setting aside a spot for 

every discrete group on every jury,” Gilmore, 103 N.J. at 525; see also

Ramseur, 106 N.J. at 216 (“[A] defendant has no right to a jury that includes 

members of his own race.”). At the same time, however, “[t]he fair crosssection principle . . . is designed to achieve results, not just assure 

opportunities; thus ‘“compilers of jury lists may drift into discrimination by 
30

not taking affirmative action to prevent it.”’” Ramseur, 106 N.J. at 227 

(quoting People v. Harris, 679 P.2d 433, 446 (Cal. 1984)).

3.

Having identified the hurdle standing between defendant and the relief

he seeks, we conclude that he fails to clear it. We analyze the facts and 

considerations before us under Dixon in the interest of providing guidance for 

future challenges.

First, with respect to identifying a constitutionally cognizable group, we 

have found such groups to “at minimum . . . include those defined on the basis 

of religious principles, race, color, ancestry, national origin, and sex.” 

Gilmore, 103 N.J. at 526 n.3; see also State v. Bellamy, 260 N.J. Super. 449, 

456-57 (App. Div. 1992) (“[T]o be classified as cognizable under Gilmore, a 

group must be one that has been historically excluded, on the basis of 

stereotypical prejudices, from full participation in the significant duties and 

privileges of American citizenship.” (synthesizing guidance from Gilmore and 

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985))).

We note at the outset that -- contrary to prior similar challenges --

defendant here provides no useful data for us to consider. Rather he asserts 

that, because nationwide COVID-19 statistics show disproportionate 

transmission rates and serious complications among minority populations, the 
31

disparity must have manifested itself in a skewed jury pool. The argument is 

analogous to one we rejected in State v. Coyle, in which the defendant argued

that two municipalities were underrepresented in three jury panels. See 119 

N.J. 194, 213 (1990). We determined that the defendant’s argument was not, 

in fact, that members of a cognizable group were excluded. Id. at 213-14. 

One’s likelihood of contracting and falling seriously ill due to COVID-19 may,

similar to the municipality in which they live, have correlative ties with race 

and ethnicity worthy of consideration, but it does not follow that those 

particularly susceptible to, or who have contracted, COVID-19 themselves 

make up a cognizable class under a representative-cross-section analysis. 

As to technology-based arguments, we rejected in Vega-Larregui a 

similar unsupported contention that the virtual process led inexorably to an 

unrepresentative jury pool, noting -- as was the case here -- that prospective 

jurors were provided the equipment necessary to participate. 246 N.J. at 127-

29; see also Weeks v. State, 396 S.W.3d 737, 742-45 (Tex. App. 2013) 

(dismissing the defendant’s challenge to an “e-juror” selection process). Agebased groups have not been recognized as constitutionally cognizable by either 

the Appellate Division, see Bellamy, 260 N.J. Super. at 456-57, or federal 

courts, see, e.g., Silagy v. Peters, 905 F.2d 986, 1010-11 (7th Cir. 1990) 

(declining to adopt the petitioner’s position that individuals over the age of 
32

seventy represent a cognizable group). Federal courts have also declined to 

recognize those of modest means as a cognizable group. See United States v. 

Gonzalez-Velez, 466 F.3d 27, 39 (1st Cir. 2006) (finding no support for the 

defendant’s claim that public-housing residents are a cognizable group); 

United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977) (“[N]either 

non-high school graduates, non-working people, nor the young are cognizable 

classes.”). Nor have they discerned a representative-cross-section violation in 

the exclusion of minority jurors due to illness. See United States v. Dunnican, 

961 F.3d 859, 880 (6th Cir. 2020) (rejecting the defendant’s representativecross-section claim premised on the removal and replacement of a lone Black

juror due to illness). 

Importantly, defendant has failed to make a showing that any cognizable 

group -- however identified or classified -- has been excluded from the jury 

venire in this case. Therefore, we do not have to determine here whether age 

or financial means, for example, might be a cognizable group for purposes of a 

challenge to a jury venire. 

Second, even if defendant has identified a constitutionally cognizable 

group, he fails to demonstrate substantial underrepresentation over a 

significant period of time. “[M]embers of a cognizable group, like all 

potential jurors, may be excused for reasons not rising to the level of removal 
33

for cause.” Fuller, 182 N.J. at 201. What constitutes substantial 

underrepresentation varies from case to case, and we have declined to adopt a 

particular standard for analyzing such claims. See Ramseur, 106 N.J. at 217-

222. Here, defendant has provided no data for comparison other than juroryield statistics that are comparable to Bergen County’s pre-pandemic yields. 

Likewise, defendant is unable to demonstrate underrepresentation over a 

significant period of time by applying general, nationwide CDC data to his one 

jury pool. See Dixon, 125 N.J. at 235 (finding uncompelling a dated survey of 

500 jurors, in part, because it covered an insufficient period of time); Coyle,

119 N.J. at 214 (“Whatever a significant period of time might be, it surely is 

not three weeks.”).

Third and finally, we conclude that the jury-selection procedure 

employed here was facially neutral and defendant has not shown that the 

neutral procedure was applied in a discriminatory manner. See Coyle, 119 

N.J. at 214. As has been repeatedly referenced, the hybrid process of jury 

selection is substantially similar to pre-pandemic practices, and defendant has 

failed to demonstrate that application of those same practices through the 

“prism” of COVID-19 amounts to discriminatory intent. See State v. 

Hightower, 120 N.J. 378, 401 (1990) (finding that a county’s “facially neutral”

practice of compiling petit-jury lists from motor-vehicle and voting records 
34

rebutted the defendant’s representative-cross-section and equal-protection 

claims). As in Gerald, we find that, here, “the methods used were chosen out 

of a commitment to improve the juror-selection process rather than an attempt 

to undermine or to inject invidious discrimination into it.” 113 N.J. at 132; see 

also Ramseur, 106 N.J. at 226 (noting New Jersey’s efforts toward achieving 

greater juror representativeness, including the addition of Department of Motor 

Vehicle lists in compiling jury pools). 

The hybrid process was intended to balance public health and safety with 

the “the fundamental rights established by the United States Constitution and 

the New Jersey State Constitution, including meaningful participation by 

attorneys and parties in the jury selection process,” see Order -- Resuming 

Criminal and Civil Jury Trials, at 2, and we find success in the similarity 

between pre- and post-pandemic juror yields. Facets complained of, such as 

removal of the automatic-deferral option, logically increased the size and 

representativeness of jury pools, and prospective jurors were doubtlessly more 

likely to be willing and able to participate with additional precautions like 

limiting the number of in-person jurors to accommodate social distancing. See

Vega-Larregui, 246 N.J. at 129 (determining that virtual grand-jury procedures 

increased representation).
35

Because we find that defendant fails to meet the requirements of Dixon,

we need not consider the State’s interest in the hybrid selection process. We 

close by recognizing that the validity of a jury-selection process is not static,

and the exercise of special care in unusual circumstances is of the utmost 

importance. Defendant, for instance, contends that excusal and deferral 

records have not been maintained as required by N.J.S.A. 2B:20-9(b) -- a 

claim that cannot be substantiated as such records were never requested by 

defense counsel in this case. Suffice it to say, records should be kept. Our 

courts, jury managers, and stakeholders must remain vigilant in the event that 

the facially neutral practices we approve of here result in underrepresentation 

of a cognizable group despite all best efforts. See Ramseur, 106 N.J. at 227

(“[J]ury officials may not sit by idly in the belief that no constitutional 

complaint may be lodged against a random selection mechanism” because 

exclusive reliance on “facially ‘neutral’” approaches that nonetheless permit 

systematic underrepresentation can themselves “become constitutionally 

suspect”). Irregularities may result from imperfect application of measures 

aimed at improving the selection process. See Gerald, 113 N.J. at 133. 

In recognition of the important issues raised, but not nearly 

substantiated, in this appeal and to better assist our courts in preventing 

potential underrepresentation and irregularities stemming from the hybrid 
36

process and other facially neutral selection procedures, we direct the AOC to 

begin collecting jurors’ demographic information. Disclosure should be 

voluntary and cover a juror’s identified racial identity, ethnicity, and gender

categories. “Perfection may not be attainable but its pursuit should be 

relentless.” Long, 204 N.J. Super. at 486.

IV.

The judgment of the trial court is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE 

SOLOMON’s opinion.