Jury Trials in the Time of COVID-19

One of the many consequences of COVID-19 has been a closure of public spaces and an adaptation to a “new normal.” From a legal perspective, one of the most difficult challenges facing the government has been howand in what capacity, to continue court proceedings. While the vast majority of trials and hearings are able to continue virtually, jury trials present a unique challenge. As the number of cases fluctuates and states’ mandates change, courts across the country have dealt with the pandemic in a variety of different ways, of which nearly all have been met with challenges from defense attorneys.

Back in June, Oregon was one of the first states to resume in-person jury trials due to a statute that prohibits the incarceration of a defendant for more than 180 days before their trial begins. Regardless, other states began resuming their jury trials around the same time, without such statutes. As the months went by and COVID cases seemed to be trending down, other municipalities followed suit and began opening their courthouses for trials with tight restrictions; some even began holding virtual jury trials. As winter rolls around and cases begin to spike, courthouses around the country have again closed their doors and postponed jury trials. The postponement of trials raises constitutional issues in and of itself, but the administration of jury trials in areas with low COVID numbers raises its own peculiar set of questions and points to a desperate need for standardization.

All of these questions fall under the umbrella of the Sixth Amendment. Defendants have the rights to a public trial without unnecessary delay, a lawyer, an impartial jury, and the ability to confront their accusers. Accordingly, the delay of trial based on a public health crisis can arguably be considered necessary, but what happens when the length of pretrial incarceration keeps extending as COVID cases surge? At what point does the length of pretrial imprisonment violate the Eighth Amendment and become cruel and unusual punishment? Given that the Eighth Amendment considers excessive bail to be a violation of one’s rights and the majority of individuals on trial in Oregon were only confined because they were unable to pay their bail, these questions have become an important public debate as advocates bring up the classism behind the bail system and the risks that befall inmates who are kept behind bars for lengthy periods of time before their trials, even without the concern COVID. 

However, jury trials in a time of COVID bring up their own set of questions. As stated above, defendants have both the right to an impartial jury and the right to confront their accusers in court. COVID precautions, though necessary to protect the public, put these constitutional rights at risk and may set up an onslaught of appeals if convictions are reached. The restrictions in question refer largely to mask mandates and social distancing guidelines that affect how effectively defendants and their attorneys are able to confront witnesses and perform voir dire (jury selection). These issues are connected but each represents a distinct challenge.

With trials that have continued in person, all parties, for the most part, have been required to wear appropriate personal protective equipment (PPE) and follow social distancing guidelines. Generally this includes witnesses and members of the jury throughout the trial process, however there are rare exceptions granted by judges on a case-by-case basis. By and large, though, defense lawyers and their clients have been forced to adapt to a process of confronting their clients’ accusers and determining the biases of the jury during a voir dire process where their faces are mostly hidden. This prevents attorneys on both sides from seeing vital clues such as “fleeting smirks or scowls” potential jurors exhibit during the selection process, opening convictions up to appeals.

Further, to follow the standard six-feet apart guideline, jurors have been seated in unusual places, including the gallery and even other courtrooms where they observe the trial through a closed livestream. This can obstruct the view for jurors who are trying to determine the reliability of a witness using facial features and demeanor. While attorneys are unable to read jurors during voir dire, attorneys and jurors alike have more trouble ascertaining the credibility of witnesses through masks and social distancing. With cases continuing to pile up, some courts have tried to remedy the issue by holding trials entirely virtually, but this presents the same risks. Defense attorneys argue determining demeanor through a computer is even more difficult.

Another problem with jury trials has been maintaining a representative jury. As research has shown, COVID’s impact varies based on the area of the country, but variation has been even more obvious among different demographics. Black and Latinx populations have been more adversely affected by the virus, experiencing higher rates of hospitalization and even death. This could impact who shows up to jury summons, and states have reported dwindling numbers of responding jurors as the months go on. Courts across the country have been pre-screening jurors to determine which individuals are “high risk” and not required to report. Some of the criteria considered include those with compromised immune systems and caretakers for the elderly, sick, or children. These caretakers are disproportionately people of color. Defendants have already challenged their convictions and even grand jury indictments due to unrepresentative juries. 

With almost two dozen U.S. district courts suspending jury trials and grand jury proceedings at the end of November, a national standard must be created to ensure states and appeals courts are not swamped with appeals based on Sixth and Eighth Amendment violations. Any possible solution obviously has its drawbacks, but the only way to ensure that defendants’ Sixth Amendment rights are not violated is to postpone grand jury proceedings and jury trials until they can safely be done in person, free of masks. When they are done in person, masks provide grounds for appeal, and close contact risks mistrials being declared if COVID spreads through the involved parties. This has already happened in New York City, Indiana, Colorado, and Missouri. To comply with the Eighth Amendment, then, it is crucial that bail is reduced for low-risk defendants. Without a national standard, however, neither of these recommendations will be implemented successfully, and the country risks an onslaught of appeals and overturned convictions, which would further backlog the already overburdened COVID courts.