By Lynn A. Kappelman,
Dawn R. Solowey and
William N. Berkowitz
BridgeTower Media Newswires
The COVID-19 pandemic shut down federal and state courts across the country for most in-person court proceedings, including jury trials. Given the emergency conditions, some trials were even halted mid-testimony, with judges declaring mistrial to empty out the courthouse.
While many hearings, depositions and mediations have gone remote, jury trials have shut down completely. This has resulted in a backlog of all the civil and criminal trials that were scheduled to proceed in (at least) March, April or May.
Moreover, when courts reopen, courthouses will be focused on criminal trials first since constitutional and statutory requirements dictate that judges give them priority. This will further exacerbate the growing backlog of civil jury trials.
The country is reopening in a state-by-state patchwork with varying restrictions. Some governments and employers are considering phasing in the workforce, with older and vulnerable employees staying home longer. In addition, others are considering creating work shifts to limit the number of people in the workplace at any one time.
So how do jury trials fit into this new landscape?
Social distancing in a jury trial?
Jury trials pose unique health challenges in a pandemic. Pre-COVID, jury selection typically involved large public gatherings, including hundreds of prospective jurors sitting close together in the jury room, waiting for courtroom assignments.
Juror pools were then called into separate courtrooms for selection, sometimes rotating between courtrooms. Throughout this process, they typically shared chairs or benches, elevators and public bathrooms.
Once selected for a jury, jurors sat close together both in the jury box and around a conference table in a deliberations room, sharing food and coffee. They came in close contact with the bailiff and other court personnel, and to a lesser extent, lawyers, witnesses and the judge.
All of these conditions would create a near-perfect environment for spreading the virus. And if any juror were to get sick with COVID-like symptoms during a trial, the judge would likely need promptly to declare a mistrial, so that the other jurors (and trial participants) could be tested and quarantined, leading to serious health concerns and significant disruption.
Despite these challenges, courts will need to figure out how to move forward with jury trials during the period before the virus is controlled by vaccine or widespread immunity. After all, jury trials are not optional; they are a matter of constitutional right.
Courts, in consultation with public health officials and practitioners, will need to consider many creative options. No doubt trials will start sooner in certain states, based on political decisions and the public health outlook, which will in turn become pilots for the rest of the country.
Structural changes to courtrooms
Some courts will consider making structural changes to the spaces used by jury trials, beyond those needed in the courthouse generally.
For example, certain older courtrooms are simply too small to allow social distancing for 12 (or more) jurors, personnel and lawyers, and might require combining two courtrooms, or two deliberation rooms, into one, or repurposing some of the public seating into space for the trial participants.
Courtrooms could be modified to reduce transmission, such as with Plexiglas barriers between juror seats; between the jury box and the rest of the courtroom; or between judge, clerk and court reporter.
Doors could be propped open or equipped with hands-free buttons. Jury boxes themselves might have to be expanded in order to allow jurors to sit at least 6 feet apart. Jurors may be seated in galleries at 6-foot increments, with courtrooms closed to the public, yet viewable remotely.
These sorts of structural changes take time and cost money, at a time when many government budgets are already stretched.
Holding trials outside the courthouse
If modifying courtrooms proves too costly or time-consuming, some courts might consider holding trials or deliberations outside the courthouse, where greater social distancing might be possible.
In Boston, we have at least one trial judge who regularly holds oral arguments in a large classroom at a nearby university. Such a setting could more readily allow jurors to sit more than 6 feet apart, while also letting the parties and their counsel and court staff to stay distanced. If universities are temporarily shuttered due to the pandemic, these spaces might be available.
A non-court setting for deliberations, such as a university or hotel conference room, may also be a safe alternative.
Remote jury selection
The courts may also consider whether some or all of the jury selection process could be done remotely prior to the in-person service. Even pre-pandemic, jurors in some jurisdictions received questionnaires with their summonses, and returned them by mail prior to their jury duty date.
An expansion of that concept — ideally by online survey or phone (for those without a computer or internet) — could collect several categories of information.
First, jurors who are unable to serve could potentially be eliminated by remote questionnaires. Even pre-pandemic, there were a certain number of jurors who could not serve due to inability to speak English, medical conditions, economic hardship or caregiving responsibilities.
Post-COVID, the numbers of such jurors will increase exponentially. Those whose age or health conditions render them high risk (or who live with a high-risk person) may be unable to serve. Those in health care or other essential workers may need to be excused (and are already being exempted from discovery in some jurisdictions).
More prospective jurors will face serious economic hardship. Until schools and nursing homes are fully functional and safe, more potential jurors will have caregiving duties that preclude service. Much of this information could be determined remotely.
The questionnaires could be used to acquire COVID-related health history, if completed reasonably contemporaneously with service. For example, jurors could be asked questions about their symptoms, recent travel and recent COVID exposures.
Remote jury selection questionnaires could also be used to gather biographical and demographic data before the selection day. That data might be helpful, for example, in eliminating a prospective juror from a particular case (such as if he or she knows a lawyer or witness in the case), before he has to appear in a particular courtroom.
It is even possible that the questionnaire could ask voir dire questions specific to the subject matter of particular cases, if those questions were streamlined.
Health assessments of prospective and seated jurors, and other trial participants
The courts will also have to consider what health restrictions, if any, to impose on jurors and other trial participants during the process.
For example, a court could require daily temperature and symptom screening, upon entering the courthouse or courtroom. It could even require, theoretically, diagnostic or antibody testing, if such testing becomes sufficiently available and reliable. A court could also ask prospective jurors to provide a health affidavit such as documenting antibody testing.
All trial participants could be required to wear masks, whether or not there is such a government order in place.
Limits on trial participants
Courts will likely limit the number of trial participants to maintain distancing in the courtroom. The court could limit the number of attorneys per party. Witness sequestration orders, previously often available by motion, may become universal.
The court may also impose limits on the public or press in attendance, with due consideration of the right of access.
Frequent sanitization of the courtroom and adjacent spaces would almost certainly be required, following CDC and other public health guidelines, as would frequent use of hand sanitizer and sanitizing wipes.
The court would likely limit any shared surfaces, such as juror binders of exhibits, in favor of using courtroom technology to display information hands-free. Judges might rethink whether to allow juror notebooks that have to be collected by court staff.
While before it was common for jurors to share meals and coffee in the deliberations room, boxed individual meals could be substituted.
Timing and tech
Trials would likely become very short and sweet. Pre-COVID, some judges already limited the time that each party had to present evidence, and that may become more common. Strict limits on opening statements and closing arguments would be likely. Judges would keep sidebars to an absolute minimum.
Courts may also explore ways to use technology in post-COVID trials. More witnesses could testify by video deposition. In technology-enabled courtrooms, attorneys can present exhibits to jurors electronically.
On the other hand, there are limits to what can be remote. For example, we are unlikely to see remote video jury deliberations, given the concerns about juror access to technology, confidentiality and cybersecurity issues, and the loss of the intimacy of in-person deliberations.
A call to action
The modifications needed to safely conduct jury trials during the pandemic will not be quick or easy. In the meantime, the backlog grows daily. It is not too early for administrative judges and court officers to roll up their sleeves and attack these difficult issues.
Judicially led task forces, including public health and civil engineering experts, should be formed now to address the issues, and to develop and implement plans to enable courts to resume full activities, including jury trials.
Reliance on the best-case scenario — in which the pandemic will be under control in a short time, and no significant structural or procedural changes are anticipated — may only increase the trial backlog to a point where justice is so delayed that it is effectively denied.
William N. Berkowitz and Lynn A. Kappelman are partners, and Dawn R. Solowey is senior counsel, at Seyfarth Shaw in Boston.
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