Ride the Lightning

Should We Hold Jury Trials Outdoors? It’s Been Done Before

August 3, 2020

The Washington Post had a fascinating story on July 31 about holding jury trials in the COVID-19 era. So many court proceedings have become virtual – with some glitches and bumps, but the courts are slowly working out the kinks.

Jury trials, however, pose a lot of challenges.

The article references a Fairfax County Circuit Court afternoon where the prosecutor reported to courtroom 4J with a tape measure. The public defender rolled in with bag full of six-foot lengths of rope. A defense attorney showed up with a hockey stick.

This "team" was trying to figure out how jury trials could be held – safely. They wore suits and masks while they pushed chairs around to reconfigure the courtroom. They figured out where to put plexiglass guards. And they used the tape measure, rope and hockey stick to mark off the proper social distancing for everyone who would be involved in a future proceeding. Love the hockey stick.

Lots of other jurisdictions are trying to figure out how jury trials can be held as soon as possible. It's tricky. Jurors are compelled to serve, however reluctantly – and courts are trying to provide the constitutionally mandated right to a speedy and public trial to tens of thousands of defendants, some of whom have waited in jail for months for their day in court.

So what do the courts do? Do they need HEPA air filters to remove contaminants? Who can wear a mask during a trial? Should juror questionnaires include queries about health?

Older courthouses are often too cramped for social distancing, so they are turning to high school gyms and ballrooms. Others are exploring the possibility of staging trials outdoors as courts did during the flu pandemic of 1918. This was a piece of history I had missed!

After the Fairfax County's exercise in early July, recounted above, they realized only a few of the courtrooms in one of the area's largest courthouses were spacious enough to accommodate a jury trial and the jury might have to sit in the gallery to offer adequate social distancing. The only way for the public to watch would be by video.

Is it possible? Yes, but very expensive – not just the set up but the costs of cleaning courtrooms between proceedings. Fairfax County is hoping jury trials will be up and running this fall.

Most states have restricted jury trials during the pandemic, with D.C. and nine states postponing indefinitely, according to statistics from the National Center for State Courts.

In Maryland's federal courthouse in Baltimore, officials have retrofitted courtrooms, pulling out benches and installing plexiglass barriers. Grand jurors returned for the first time in July — a group of about 25 people in a ceremonial courtroom with stadium-style seating for 140. Only witnesses removed their masks from behind a clear face shield and plexiglass barrier.

The court is preparing to select new jurors for two trials scheduled for the end of August. The court is also summoning double the number of usual candidates and will prescreen jurors through questionnaires that give jurors the option of raising health concerns related to age or medical condition. Many courts are figuring out how to handle jurors who request dismissals for coronavirus-related concerns.

The idea of putting juries together in a normal jury room is a non-starter. The juries may have to deliberate in the courtroom itself.

During the pandemic, the courts in many jurisdictions have suspended speedy trial rights, which require prosecutors to bring a defendant to trial within a certain period after charges are filed.

Attorneys who represent criminal defendants are also concerned. The National Association of Criminal Defense Lawyers expressed "grave concern" about courts resuming normal operations during the pandemic. The group said defendants may be forced to choose among their constitutional rights to a speedy trial, the right to confront witnesses, or access to counsel during a trial because of restrictions on proceedings to stem the spread of COVID-19.

Potential jurors that can't afford care for children stuck at home or the elderly who are susceptible to the virus may not end up on juries. Concerns have been expressed about the racial diversity of juries, given that black and Latino communities have been hard-hit by the virus and may be especially worried about exposure.

Criminal defense attorneys are worried about the obvious fears that their clients wearing masks could have the unintended consequence of making them appear guilty.

Some states are experimenting with remote jury selection, virtual grand jury proceedings and even civil trials on Zoom, although few legal experts think video proceedings could pass muster for a criminal trial.

There are a lot of issues to resolve if jury trials are to go forward – and a lot of health and legal concerns that cannot be easily addressed. The operative words are that we have no choice but to improvise, adapt and overcome.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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