Moving Justice Forward at the Trial Courts under the Cloud of COVID-19

In 1963, the prescient lyrics penned by Bob Dylan conveyed a universal message of change expressed with his song, “The Times They Are-A-Chang’in.” Today, these lyrics could speak to the COVID-19 virus and its extraordinary effects worldwide, and to the future winds of change facing the legal profession, including the role of juries in the justice system. In the article below, I discuss some of my personal experiences as a jury consultant since courts were forced to adapt to the COVID-19 public health orders. Indeed, for the trial courts, the restrictions imposed may be ongoing.

Jury Selection In-Person and All Masked

Throughout the pandemic, in-person jury selections have reflected the challenges attributable to COVID. One such challenge occurred in Napa County. Masks were required inside the courthouse. The hardship reviews took place in the large basement auditorium and were conducted in-person. Although some hardship requests were COVID-related, the majority seemed to be within the typical arsenal of excuses—employment demands, childcare challenges and vacation plans. Out of 200 prospective jurors, 70 survived the hardship stage to proceed to the next step of completing a case-specific supplemental juror questionnaire. [Notably, in a nationwide survey of 73 judges responding, they reported a more forgiving standard in granting hardship excuses because of COVID. See NYU Law, Civil Jury Project, Vol. 6, Issue 8, August 2021.] Prior to the widespread vaccine rollout nationwide, older prospective jurors (50+) steered away from jury duty claiming health concerns about contracting the virus. After vaccine availability, this prospective jury pool in Napa did not seem markedly different in age variation from its pre-pandemic juror profiles.

The supplemental juror questionnaire, a voir dire tool permitted under CCP §222.5 (f), expedites the jury selection process by eliminating protracted oral questioning in a physically-distanced and masked courtroom. Its benefits include prospective jurors’ responses articulated in writing to case-specific questions, life experiences and reflections, and indications or admissions of cognitive biases. To uncover bias, one cause challenge technique is to ask for a quantified response when probing experience and attitude on the supplemental questionnaire or during voir dire.

Going back to the Napa County example, 20 prospective jurors and the two trial teams (of three each at counsel table) were invited into the courtroom. The jurors maintained physical distancing by seating arrangement. Now, with only half of a prospective juror’s face showing, counsel’s close attention to non-verbal communication and micro-expressions proved to be important skills: Specifically, interpreting general body language (shoulders and hands denoting signals), as well as eyelid blinking, eyebrow expressions and head movement.

The overflow of prospective jurors sat physically distanced in the courthouse auditorium. There, they watched the voir dire proceeding relayed through Zoom onto large screens. They took direction from the judge remotely, all the while under the watchful eye of the jury commissioner. This overflow group was directed by the judge to jot down their responses to the voir dire inquiries to keep the process moving if called into the box. Only some minor delays occurred here and there due to a smattering of technical glitches.

Overall, what was most impressive with this masked and physically-distanced-selection process was the display of patience and cooperation by all.

The Virtual Jury Selection

Some courts have adopted online jury service. This practice could result in an expanded demographic representation of a jury pool. The issues of broadband inaccessibility and the technological divide that limit virtual jury service should be rectified over time with state and federal investments in infrastructure. Among other benefits, funding for broadband infrastructure to increase affordability of devices and of service to unserved households would expand the availability of virtual participation by jurors.

With online voir dire, picture a Zoom gallery of prospective jurors. The number of prospective jurors allowed at a time into the gallery room varies from court to court. Some courts operate voir dire where everyone is muted except for the judge and the attorney sharing the stage with the responding juror. Alternatively, other courts keep everyone unmuted for ready participation. Many courts find it useful having prospective jurors complete a supplemental juror questionnaire before voir dire begins.

To view a virtual jury selection of a large, unmuted jury pool from Dallas County, Texas go to https://www.youtube.com/watch?v=ApKcPAOPdFQ

Impressions From a Virtual Juror

“I served as a juror in a virtual mock trial, an all-day event that did not include voir dire. Sitting in the ‘virtual jury box,’ I could see everything and everyone up close. The judge set forth rules to eliminate distractions by banning mobile phones, pets, email and other common diversions.

“A practiced presentation by the lawyers made it easy to follow along with their voice expression, appropriate modulation, and controlled pace. Similarly, the organized and succinct PowerPoint slides seemed easier to absorb because of my close proximity to the presentation. Moreover, an uncluttered virtual background kept my attention from wandering.

“Serving as a virtual juror made me feel like a stranger to my fellow jurors. Being dropped into a Zoom breakout room does not present an optimal atmosphere for getting acquainted while the judge and attorneys converse privately. Jurors in the virtual world have less quality bonding time which could hamper jury deliberations. Indeed, important coalitions may not develop that are useful later for employing persuasive argument.

“On the other hand, in the absence of bonding, one can feel less intimidated in deliberations to express an opinion about the evidence with no hesitation or concern about being judged by others. Actively participating in one’s home environment felt empowering especially when talking into a small camera. With civility intact, we arrived at a verdict.

“I learned from this virtual trial experience that (1) the lawyers must practice (and practice again) their presentations, and have working knowledge of the technology; (2) the judge must be firm with admonitions, provide clear instructions on procedure, and show patience with technically challenged jurors regarding remote participation; (3) jurors must maintain a respectful demeanor during deliberations, and (4) guard confidentiality to insure a clean and fair result.”

For information about how various states are conducting trials under the demands of COVID-19, see the National Center for State Courts website: www.ncsc.org for its latest report.

Conclusion

COVID-19 has forced the adoption of moving justice forward in whatever ways that can be achieved with expediency, cooperation, and less reticence from all involved. As Dylan’s lyrics predicted:

“Come gather ‘round people, wherever you roam
And admit that the waters around you have grown…
For the times, they are a-chang’in”

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