There’s something that judges will often tell potential jurors at the start of the voir dire process: “We know jury duty is an inconvenience, but it is a necessary duty.” But what if it is more than an inconvenience? What if it was a threat to health, or even life? In the context of the current coronavirus pandemic, jury duty may indeed be exactly that: Summoning a broad cross section of strangers to sit together in a room that may be small, old, and lacking in ventilation, before asking them to discuss issues at a common table can be a risk, even when precautions are taken.
But many courts across the country are going ahead with it, often with substantial, but inconsistent precautions. A recent article by University of Tennessee law professor, Melanie D. Wilson, entitled “The Pandemic Juror,” shares the opinion that this may be an instance of a system that, in normal times, asks a great deal of jurors, is now asking too much of them. She writes, “Courts have intensified this callous treatment of jurors by exposing them to serious health risks — physical, emotional, and psychological — sometimes to decide cases with minor charges.” Attorneys, at times, will have a unique opportunity to weigh in, since judges are in effect asking, “Under what conditions would you and your clients be willing to proceed to trial,” implicitly adding, “without using those conditions as a basis for appeal?’ It has always been a good idea to respect jurors at a level that goes beyond simply thanking them for their service. Now, however, that respect requires investigating creative ways to avoid unnecessary risks to both health as well as justice.
What Are the Courts Doing?
Some courts are watching and waiting, kicking their cases into early 2021, or later. Others are diving back in, particularly in criminal cases, which is Professor Wilson’s focus. Using several examples, she notes that there is little consistency between one venue and the next, and a jurisdiction’s plans are not always tied to the status of the virus. The article notes, for example, that courts in Tennessee and California were restarting in-person trials just as the coronavirus infection rate was reaching its peak (so far). Tennessee cancelled its bar examination, while at the same time restarted in-person trials.
What are the Risks?
One thing that’s clear is that the quality of being sanguine about being in a courtroom is not evenly distributed across the population. The author refers to a summons in Portland in May in which just 121 of 500 potential jurors showed up. And the quarter who did show up were not a cross section. “Attracting jury pools dominated by Republicans and young people is also problematic,” Professor Wilson writes, “but these are the groups who may be most willing to serve because they generally feel less concerned about COVID-19 and more comfortable gathering in groups.” When those who are older, immune compromised or otherwise concerned over the virus are excused, or self-select out of the process, there are not only specific threats to an individual’s right to a “jury of peers,” there is also a more general threat to the perceived integrity of the system. “By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system.”
The author argues that, even where jurors may not be at high physical risk of illness, they are at risk of being distracted by their own worries, or by the ubiquitous precautions that, as I’ve written before, serve to cue jurors’ anxiety and make them more conservative in response to the case. There is also the fact that one positive test from the households of jurors, attorneys, judge, court personnel, or witnesses could lead to a mistrial.
What Is the Solution?
Professor Wilson supports pausing trials, and resuming them only when courtrooms are able get up to speed, while also following a consistent regimen of health checks, larger courtrooms, broad spacing, and masking by all, including the use of medical grade masks — the kind that don’t just protect others but protect the wearer as well. Even then, the liberal excusal policies that the author also recommends will have a known and dramatic effect on the demographic representativeness of the panels.
What is interesting is that, other than suggesting the use of “nonbinding Zoom trials” as an aid to settling or dismissing cases, the author does not seem to seriously consider the use of technology to avoid the need for in-person contact. While it is true that there are many obstacles to conducting all or parts of jury trials online, it is also true — as Professor Wilson’s article amply demonstrates — that there are tremendous obstacles to safely resuming in-person jury trials. To effectively run any significant number of binding Zoom trials, we would need to address issues of access, as well as technical efficiency. But many of those technical issues are solvable. We have communicated with the aid of technology for generations, and recent advancements in both performance and familiarity with web conferencing, strongly suggests that this might be the time to be skeptical of the assumption that a courtroom must be physical space.