Ensuring The Right To A Fair Trial: Jury Trials In A Post-COVID World

By Brendan Kennedy

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The COVID-19 pandemic has disrupted one of the bedrocks of American jurisprudence — the right to a trial by jury.

With courthouses in every county outside of New York City in Phase Four of reopening, such matters as child support hearings, desk ticket arraignments and small claims disputes are happening in person. But the question remains — What is the future of jury trials?

Betty L. Dunkum hosted a virtual CLE program on “The Future Of Jury Trials: How the Coronavirus Epidemic May Change Online and in-Person Trials and Jury Selection.” The program examined what changes will happen to in-person jury trials, how jury selection will be different in the age of COVID-19 and how online jury trials might work.

“Going back to the old way of doing things is not possible in our current pandemic,” Dunkum said. “The wearing of facemasks while inside the courthouse, social distancing, an abundance of sanitizing wipes and sprays and plexiglass barriers will have to become our new normal.”

Already, the New York court system has announced that court officers will conduct contact-less temperature screenings and ask visitors questions about COVID-19 symptoms. Those entering courthouses will also have to report contact with anyone diagnosed with the virus or who has recently returned from traveling abroad or from a state covered by Executive Order 205.

In Albany County for example, where Grand Jury summonses are being sent, reporting times will be staggered to allow for smaller jury size panels, witnesses will be provided face shields and jurors will be allowed to bring their own bottled water and lunch.

In other states where in-person jury trials have resumed, measures are being taken to ensure social distancing. Dunkum noted that in Vicksburg, Mississippi, jury selection took place in a city auditorium and deliberations were held in the large boardroom. Elsewhere in Mississippi, there are plans to conduct a trial in a middle school auditorium.

A major issue is making sure that jury pools fairly represent all groups within the community. In June during a trial in Portland, Oregon, very few African-American or Latinos were in the jury pool, which correlates to a recent survey cited by Dunkum of potential jurors. In that survey, 72% of White, non-Hispanic residents were willing to serve in an in-person jury compared to just 58% of African-Americans, 50% of Hispanics and 41% of Asian-Americans.

To alleviate some of the concerns potential jurors have and to ensure a jury pool that is representative of the community, Dunkum provided some steps the courts can take to reassure potential jurors.

“Simple things like updating the court website and social media with photos and videos that show jurors the safety measures you’re taking can go a long way,” she said. “Also, courts should be including a written statement of the safety protocols with the jury summons.”

Courts should also be aiming to reduce the chance that jury assembly areas will be overwhelmed with crowds of people by handling hardship requests before jurors arrive at the courthouse. Dunkum suggests allowing for generous deferrals, loosening language that could discourage jurors from sharing concerns and making sure that jurors clearly understand the courts want to know everything that will help court personnel make informed decisions.

Technology will undoubtedly play a major role as the courts move forward and resume jury trials. Such things as finding secure software to allow for online juror questionnaires and obtaining reliable video conferencing software that will allow jury trials to be conducted online will surely be part of the new normal.

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