During this time of social distancing, a subject about which there has been a lot of discussion in the criminal defense community is when to restart criminal jury trials. Courts around the country have stayed case deadlines and continued trials in the interest of keeping defendants, trial participants, and jury members safe. But the jury trial right is a fundamental one, and in some cases, justice delayed is definitely justice denied. Moreover, because the determination of when to restart trials has been left to the discretion of each jurisdiction, some communities and courts are making plans to restart jury trials even before the COVID-19 outbreak has been contained.
Here are just a few of the intractable issues that arise when trying to conduct jury trials in the midst of a global pandemic:
- How to maintain a safe distance between lawyer and client while still ensuring the client’s constitutional right to consult with her lawyer during trial: Lawyer and client are constantly communicating during trial. Lawyer and client must discuss prospective jurors during the jury selection process, discuss witnesses, exhibits, and trial strategy. That simply cannot be done from six feet away. Even if courts provide two-way communication devices, it will be difficult to ensure the confidentiality of those discussions, and the cost of providing and sanitizing those devices may be prohibitive.
- How to ensure that lawyers and jurors can assess witness credibility: Normally, of course, witnesses are unmasked during trial. During a pandemic and in a group setting like a jury trial, witnesses may feel more comfortable wearing masks. Allowing witnesses to wear masks will impede the ability of lawyers to examine witnesses effectively and the ability of jurors to assess witness credibility. If, on the other hand, we prohibit witnesses from wearing masks, we will need to ensure witness safety by locating the witness stand at a safe distance from other trial participants and by sanitizing the witness stand, microphone, chair, and exhibits between witnesses. This requirement alone may significantly lengthen the duration of trials and some witnesses may simply refuse to participate unless they can wear masks.
- How to array the participants in the space: American courtrooms all share the same basic spacial elements and configuration. The plaintiff and counsel (in a criminal case, the prosecution) sit on one side of the courtroom and defendant and counsel sit on the other. Because of the constitutional requirement that trials be public, there is a gallery for spectators. There is a bench at which the judge and her staff sit, and a witness stand for testifying witnesses. And there is a jury box large enough to hold twelve citizens. It is, however, impossible to seat twelve jurors in a traditional jury box while maintaining appropriate social distancing spacing. As a result, jury trials during a pandemic will probably have to be held in alternative, larger spaces like conference venues. Attendant problems with moving trials to larger venues include a lack of appropriate equipment (document cameras, screens, audio equipment) and the cost to acquire or move that equipment to the new space. In addition, a significant concern is how jurors will be able to see and hear witnesses, lawyers, and judge when spread out in a huge room.
These are just a few of the issues to be addressed before restarting jury trials during this global pandemic. It seems to me that in most cases – particularly those cases in which the defendant is out on bond pending trial – the health risk to the participants of forcing a case to trial before we have any treatments or vaccines for COVID-19 is too high to warrant going forward. In my view, only in cases in which defendants are in custody and insist on their speedy trial rights should we even attempt to press forward with jury trials. And I say “attempt” because I am still not convinced that it can be done safely.