The COVID-19 pandemic has created significant issues for court systems across the country wishing to move forward with civil jury trials, namely the control of jurors. In this article, we seek to address some of the issues that courts are facing in trying to move ahead with jury trials either in person or remotely. Furthermore, these issues create a basis for objections that defense counsel should consider raising with the court at the immediate outset of the court seeking to proceed forward with trial.

1. Juror Management in the Courtroom

Having in-person jury trials during the COVID-19 pandemic raises multiple issues, particularly if a juror reports having classic symptoms for COVID-19 during voir dire. Given that voir dire in complex jury trials can last multiple days, it is possible for a juror to initially report as asymptomatic at the start of voir dire, but later develop symptoms as the voir dire process continues. This creates multiple issues: (1) Will the court require potential jurors to provide COVID-19 test results should a juror begin experiencing symptoms? (2) Can the court divulge the health information of this juror to the other jurors and parties? (3) Does the court have an obligation to then require the other jurors and counsel who have come into contact with the juror to self-quarantine for 14 days per the CDC guidelines? While this list is not exhaustive, it is quite clear that the court’s ability to restart in-person jury trials in the near future faces significant hurdles.

It is clear that the need for a clearly written protocol of how to bring back jurors safely to the courthouse in the face of this pandemic will be needed as well as contingency plans should a juror report identified COVID-19 symptoms during voir dire and trial. It is clear that testing (i.e. contactless checking of temperature) and facemasks will be required, but this in and of itself may not be enough.

Counsel should be prepared to discuss these issues with the court and create a clear record thereon. If the court is insistent on proceeding, counsel should, at minimum, request that the court develop and draft a concise written protocol on how to deal with the jury as well as protocol for dealing with various contingencies. Counsel should be prepared with suggestions of their own, including (1) requiring face masks at all times, (2) jurors being seated in the court room six feet apart, (3) sanitizer for each juror and party, (4) during voir dire limiting the number of jurors in the court room, (5) using plexiglass around the jury box as well as clerk stations, (6) placing standing points inside the hallways of the courthouse noting six feet of separation, as well as limiting the number of people that may enter the elevator. These are just a sample of the countless other considerations that should be raised with the court balancing juror safety and fundamental fairness.

2. Juror Management in a Remote Trial

The alternative to in-person jury trials is having the jurors appear remotely. However, this raises several problems that counsel should be prepared to discuss with the court and create a clear record on:

1. The Court Cannot Ensure the Remote Jurors Perceive the Evidence at the Same Time

As we have all experienced from doing remote meetings, there are many distractions that can arise at home. This creates a due process issue as the court has no way to ensure that all the jurors perceive the evidence at the same time. (1) A juror may become distracted during the presentation of a key piece of evidence and there would be no way for the court to control this. (2) The jurors WiFi or internet connection could have a lag wherein during the presentation of evidence the juror does not hear testimony or see the evidence presented. Unless the juror speaks up, the court would have no way of knowing that the juror missed testimony/evidence as well as how much evidence the juror missed. This is a highly likely event given the amount of people now working remotely. (3) The applications use for remote conferencing are also available for use on cell phones. Theoretically, a juror could participate in a complex trial viewing witnesses and evidence on a 4-inch screen. Such a juror may not perceive the evidence in the same manner as they would on a 10-inch tablet or a 24-inch desk monitor.

2.The Court Cannot Ensure the Remote Jurors Participate in Deliberations in an Unobtrusive Environment

In California, the law requires that the court “provide a deliberation room or rooms for the use of jurors when they have retired for deliberation.” Code Civ. Proc. § 216 subd. (a). “The deliberation rooms shall be designed to minimize unwarranted intrusions by other persons in the court facility…” Id. Given that a court cannot intrude upon the sanctity of juror deliberations, there is no way for the court to guarantee that the jurors will be protected from intrusions deliberating remotely. If a juror is at home and has small children or other family members, the court cannot ensure those other household members will cause intrusions and distractions. The same potential for technological error exists, wherein a juror may miss part of the deliberation or be unable to speak up or ask critical questions to the panel.  Finally, the traditional ability of jurors to review evidence in the deliberation room will be significantly impacted, raising questions such as over who controls the evidence and the ability of the jury to use remote technology to share the evidence with the panel.

It will be critical for defense counsel to create this record to protect their clients’ right of due process. Counsel should be prepared to raise these issues as well as the relevant objections in order to protect their clients.

Conclusion

It is clear that there are significant hurdles in proceeding forward with jury trials given the pandemic. In-person jury trials cannot proceed forward without very clear written protocol to ensure the safety of judges, the parties, their counsel, as well as potential jurors. While some remote jury trials have proceeded forward in some jurisdictions in the United States, it seems that this may be much more difficult to implement in a lengthy complex trial. As indicated, counsel should be prepared to discuss all these issues with the court.

CMBG3 Law’s attorneys are experts in litigation and trial practice. Our nimble team of lawyers and paraprofessionals have easily adapted to the “new normal” and remain ready to help you obtain win your lawsuit, even during these challenging times. To learn more about how we can help you, contact Attorney Luis A Barba at (949) 467-9610 or by email.

Written By:

Luis A. Barba, Esq.