The right to a trial by jury is central to our justice system. The Seventh Amendment to the United States Constitution ensures the right to a jury trial in civil cases brought in the federal system. Similar protections exist in individual states’ constitutions. The COVID-19 pandemic has forced courts, federal and state, to suspend jury trials. Our concern is when and how courts will again allow civil jury trials to go forward.
Will we see any civil jury trials before the end of this year? Unlikely.
The entire jury experience—from the moment jurors enter the court house to the announcement of the verdict—is inconsistent with CDC and state authority social distancing requirements imposed as a result of the pandemic. Placing jurors into close proximity of strangers is built into the very architecture of our court houses.
When a potential juror enters the courthouse, he or she is directed to a jury assembly room, which has just enough space to accommodate the jury venire assembled to potentially serve on the juries that day. Depending upon the jurisdiction, that could amount to a hundred or more citizens in tight quarters for hours at a time.
After being selected to serve, jurors face days to weeks of sitting shoulder-to-shoulder in a jury box and jury deliberation room, large enough only to accommodate, at most, 12 -16 adults. Social distancing in the current court house environment is impossible.
And our concerns are not limited to the accommodation for jurors. Litigants, witnesses, counsel, and court personnel also operate in close quarters as they go about trying a case. It would be difficult for attorneys and clients to communicate confidentially in a court room without violating the six-foot rule. Among other practical problems are the handling of physical evidence and frequent bench conferences which require the gathering of counsel, the court reporter, and the judge out of the hearing of the jury.
We do not claim to identify all the issues faced in the conduct of civil jury trials in the age of COVID-19. However, the problems we have identified are serious enough to question whether civil jury trials can be conducted under current circumstances.
Is there a way to reintroduce civil trials before the eradication of the COVID-19 threat? A few states are in process of opening their economies. Court systems are looking to resume some semblance of normal procedure, including jury trials. From pronouncements made by several states, there is no clear path on how this can be done.
While COVID-19 remains a threat, many obstacles operate to delay the commencement of civil jury trials. First, significant changes must be made to court house facilities and procedures to minimize the risk of exposure and transmission. For example, the volume of trials and number of potential jurors will be significantly reduced to preserve at least a modicum of social distancing. Second, criminal trials, which involve questions of personal liberty, will be given priority. Third, the backlog of civil trials will likely cause many more months of delay.
Further, assembling a jury pool in this environment will be much more difficult and will challenge our notions of what constitutes a fair trial. The vulnerable population for serious complications from COVID 19 includes people with high blood pressure (over 30% of Americans); people with underlying heart or lung conditions, such as asthma; those suffering from diabetes; those with compromised immune systems; anyone over 65 years of age; and the obese. If we eliminate these people from the pool of potential jurors, juries will no longer be representative of the broad cross section of our Nation. Those left for jury duty will be of a much narrower demographic than to which we have become accustomed.
Can these problems be addressed through technology? Courts are using technology to conduct remote conferences and hearings at the trial and appellate levels. But we have not seen technology used to address the far more complicated and personal dynamics of the jury trial. In any event, it would take time and significant investment to incorporate that technology to create a virtual trial environment.
Given these problems, it is unlikely that civil jury trials will take place before, at least, the end of this year, and possibly months beyond.