For months courts have been shuttered – opened and operating just enough to maintain an appearance of constitutional rights for those accused. Essentially, if you are not in jail, your case got continued. If you are in jail, you were either released from jail on bond and your case continued, or you sat in jail while your case was continued. Pre-trials were held via video or phone and while cases were discussed between counsel and court, in-court hearings were practically non-existent.
Now, four months later, courts are starting to re-open and address their severely backlogged dockets. All the courts I am often in have face-mask requirements and are limiting access to only those with business before the court. Some courts have completely switched back to in-person pre-trials while others are still conducting them via phone/video. Each court, and in some instances each judge within a court, are taking varying steps to re-open.
But one large issue remains – jury trials!
I have received notice from some courts that they expect to resume jury trials in August. Others have already “technically” resumed jury trials – but I do not believe any attorney has proceeded with one. Jury trials are the foundational element of criminal justice system – that an accused is not guilty of a crime until the state proves, beyond a reasonable doubt, the accused’s guilt to jury of his/her peers. So, why is resuming jury trials such an issue during the COVID-19 pandemic?
Jurors, for starters, are an issue. Before a jury begins to hear evidence, the jury must be selected. Voir dire – a/k/a jury selection – requires summoning a large number of prospective jurors to the courthouse for selection. For most misdemeanor and lower level felony cases the court may summons 25 – 30 people. These prospective jurors are sat, right next to each other, in the courtroom so attorneys can question them about their experiences and beliefs.
Unlike what is usually shown on TV, courtrooms are not usually large and ornate – they are small and cramped (unless you’re in federal court). There are some large and beautiful courtrooms but they are the exception. In at least one courtroom I recently had a jury trial in, the 30 potential jurors, sitting side by side, took the entire public seating area, save for a bench of about 5 seats.
To properly adhere to social distancing requirements, most courts will need to find another location to conduct voir dire – assuming enough prospective jurors are not afraid of congregating in a large group in a small room and show-up. If enough prospective jurors appear and there is a location large enough to maintain social distancing during voir dire, there is still the problem of facemasks.
When conducting voir dire, it is as much the non-verbal cues as the verbal answers attorneys use to evaluate whether or not to excuse a potential juror. If all the potential jurors are wearing facemasks, attorneys cannot see their full face during voir dire. Without being able to read a person’s non-verbal cues during voir dire, I am not comfortable excusing or accepting a person as a juror. Courts must find a way to conduct voir dire safely but while prospective jurors are not wearing facemasks.
Next, assuming a jury is selected, is the issue of their seating during the trial and making sure they are safe. Jury boxes are not spacious – two rows of chairs with only a few feet between the rows and a few inches between the chairs in each row. I have seen one court, and may others discussing, placing plexiglass “shields” around each seat in the jury box. This is an interesting idea – restaurants are using it to allow in-person dining and maintain separation between parties – but it might be a problem for jury trials (claustrophobia will become a “for cause” excusal or a potential juror).
Instead of using plexiglass shields, one court was considering repositioning the jury into the public seating area. But that will lead to constitutional issues regarding an accused’s right to a trial. Jury boxes are positioned so that the jurors can clearly see and hear the witnesses testifying, presentations by the attorneys, the judge, and counsel tables, including the defendant. If jurors were moved outside the jury box and into the public seating area, their views will be obstructed or completely blocked. In most of the courtrooms I am in the public seating is behind counsel tables, bailiff seats, etc. Sitting in the public seats, as I often do waiting for my client’s case to be called, the view of the witness stand is blocked and all you can see of the defendant is the back of their head. Quite frankly, moving the jurors out of the jury box is going to affect their ability to receive evidence and thus effects an accused’s right to fair trial. Moving the jury to different the public seating to maintain social distancing during a trial is simply not feasible.
The last major hurdle (there are still dozens of smaller issues) to resuming jury trials is defendant-counsel communications. Defendants and their counsel communicate a lot during a trial; sometimes it is by a quick note and sometimes it is a short conversation. If the court is enforcing social distancing requirements, counsel and defendant may not be sitting next to each other. I was in court the other day for a plea hearing and my client and I were sat several feet apart – to far apart to communicate with each other. I had a table to work on but my client only had a chair to sit in.
One court suggested taking a recess every time, or at certain intervals, so counsel and client could talk. This is either going severely interfere with the flow of a trial if it is stopped every time counsel and defendant need to speak; or, it could lead to representation issues if a defendant can’t write notes quick enough to remember what to ask his attorney when they are permitted to speak. To resume jury trials, courts must assure that counsel and defendant can communicate with each other during the trial.
Recently, the National Association of Criminal Defendant Lawyers – an association dedicated to preserving fundamental constitutional rights – issued a report on resuming jury trials. They noted:
that resuming criminal jury trials – particularly in areas of significant community-based transmission – would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.
- NACDL Full Report: https://nacdl.org/getattachment/56802001-1bb9-4edd-814d-c8d5c41346f3/criminal-court-reopening-and-public-health-in-the-covid-19-era.pdf
- NACDL Press Release: https://nacdl.org/newsrelease/NewReportCourtReopeningAndCOVID-19?_zs=gWJMF1&_zl=j2dn5
Re-opening courts is not going to be an easy process and courts should not re-open and resume jury trials until everyone’s safety can be assured.