Moving Justice Forward at the Trial Courts under the Cloud of COVID-19 By Patrice Truman
In 1963, the prescient lyrics penned by Bob Dylan conveyed a universal message of change expressed with his song, “The Times They AreA-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 10
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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 nonverbal communication and microexpressions 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 physicallydistanced-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.
