|Written by Amy S. Griggs|
Trial lawyers around the country are asking when the courts will be equipped to safely resume jury trials and what will those trials look like in a post-pandemic world. Jury trials are the bedrock of our legal system. Without them, there is the potential for cases to linger without resolution for years.
When will it be safe for jury trials to resume? What precautions will courthouses take to make the jurors, litigants, and attorneys, and court staff feel safe and comfortable returning for this vital societal function?
The National Center for State Courts has been tracking the end of statewide jury trial restrictions and it varies wildly by state.
As of this date, some states have no restrictions, like Ohio, Georgia, Mississippi, Texas, and South Dakota. Other states prohibit jury trials until further notice, including New York, New Jersey, Connecticut, South Carolina, and Kansas. Other states have orders extending restrictions sometime into May or as far out as August like in Iowa and Idaho. Literally, the restrictions are all across the map and changing by the week as orders are extended.
National Center for State Courts Proposals
The National Center for State Courts published a guide with ideas about how to protect jurors.
Some of the key proposals from the NCSC to safely resume jury trials included:
- Permit a summoned juror to defer jury service once as a matter of right.
- Permit a second deferral of jury service in cases of a positive COVID-19 test, self-quarantine, high risk medical condition, living with high risk individuals, and health care providers.
- Create lenient policies for failure to appear for jury service including suspending capias warrants until after the pandemic resolves.
- Clean and disinfect often and visibly to calm nerves.
- Limit exchange and handling of paper items like juror badges, identification, nametags, etc.
- Restrict use of common amenities like coffee makers, refrigerators, microwaves, etc.
- Expand social distancing and label seating in the jury assembly room.
- Minimize the number of jurors called each day.
- Use smaller venire panels in the courtroom.
- Consider alternative voir dire, like remote administration of written questionnaires.
- Consider remote prescreening for issues like length of trial, hardship, and for cause conflicts.
Additional Safety Precautions for Jurors
Beyond the NCSC proposals, other precautions may help, such as:
- Jurors wearing masks.
- Daily temperature checks to enter the courthouse.
- Security screening procedures to allow for social distancing in lines.
- Staggered entry times for jurors to avoid crowded court entry times at security lines.
- Court provided hand sanitizer throughout the courtroom.
- Meals and disposable water, coffee, and beverages will need to be provided if common amenities are unavailable.
- Restricted gallery seating for observers to provide distancing in the gallery and to reserve overflow space for jurors if needed.
- Additional counsel tables to provide more space for counsel and the parties.
- Decreased ability for counsel to move around the courtroom during trial and certainly less ability to stand near the jury box.
- Witnesses may be restricted to testifying solely in the witness box, which must be cleaned after every testifying witness.
- Different procedures for ruling on objections; approaching the bench does not accommodate social distancing for the court reporter, lawyers, and judge
- Exhibits, jury instructions, and all other necessary papers must be provided to the jurors in duplicate so that they are not sharing copies
Radical alternatives like remote voir dire are hard to imagine, but may be something on the less-distant horizon post COVID-19. Time will tell how these issues resolve but it best for lawyers and the courts to be considering the options creatively now. Otherwise, the “speedy trial” may be a COVID-19 casualty.