COVID and the Juror Experience

Measures to address COVID safety while resuming jury trials will evolve based on what the courts and litigants learn in the early days, and on the surge and decrease of COVID rates in different venues.

Article By Hiliary Remick

PUBLISHED IN THE LEGAL INTELLIGENCER ON 2/16/2021

Without question, COVID-19 has overturned familiar patterns in every field including the legal system. When it comes to jury trials, courts around the country are trying to adapt to conduct fair and effective trials while keeping jurors, litigants and court staff safe from infection. As U.S. District Judge Karen Caldwell of Eastern District of Kentucky described her efforts to conduct a COVID-era trial, the process can be “like building an airplane while you’re flying it.” Measures to address COVID safety while resuming jury trials will evolve based on what the courts and litigants learn in the early days, and on the surge and decrease of COVID rates in different venues.

What are the practical implications for litigants of bringing jurors to the courtroom for in-person trials? And perhaps more important, what are the psychological effects on jurors, not just because of the COVID-19 pandemic, but because of the safety measures that are changing how trials work?

Jurors will see firsthand the practical safety precautions at every point of contact with the court, starting with the summons for jury duty and initial letters addressing new rules and possible hardship issues. Jurors might be vetted differently, for example receiving a questionnaire from the court addressing COVID-related risk or hardship. Likely screening measures include temperature checks and questioning at entry, mask and social distancing requirements, barriers, additional cleaning and special handling of exhibits and other materials. Many courts have also reworked outdoor air access and air exchange systems in addition to reconfiguring courtrooms by relocating juror seats and witness boxes and adding plexiglass barriers. For jury selection, trial courts may deploy jurors in smaller groups across separate, larger rooms, and often confine them to the first floor of the courthouse.

Every new decision made about how to organize prospective jurors and any information jurors receive from the court system about COVID-19, including  summons or initial questionnaires, could influence jurors’ trial reactions—reassuring some and rattling others.

This means that lawyers will face subtle but critical problems as they try to communicate with jurors during a civil trial weighed down with COVID-19 safety measures in place. Consider some of the other possible changes in the juror experience:

• Jurors might object outright to being summoned for jury duty at all if their COVID-19 anxiety level is high. Jurors already tepid toward the idea of jury service might now have new doubts and questions about their health risks. Depending on their social and political views, jurors might feel resentful that the safety measures they do see are either excessive or inadequate.
• Witnesses, including experts, may be more likely to be presented via live video feed instead of testifying in person. In addition to reducing both COVID-19 exposure and travel costs, jurors in both virtual and in-person trials conducted during the pandemic have reported that this format—as opposed to observing in-person witness testimony given through a mask and on the opposite end of the courtroom—often enhances their ability to visually assess a witness’s facial expressions and other nonverbal cues, which allows them to more easily and accurately evaluate a witness’s overall communication effectiveness and credibility. Some jurors may speculate as to why a particular witness was not physically present in court when jurors are required to be there. To address this speculation and to ameliorate any associated resentment jurors may harbor, litigants might request a  judicial admonishment at the outset of trial regarding the fact that some witnesses will testify remotely in order to reduce the number of individuals allowed in the courtroom and thereby minimize COVID-19 exposure for all.
• Jurors could also be frustrated by their inability to see and gauge facial expressions of masked lawyers and witnesses as to credibility and demeanor. They might fail to develop a rapport with masked witnesses or attorneys, for example.
• Where the court allows counsel to unmask at certain points (e.g., during oral argument) in the trial, jurors might question why the attorneys don’t have to follow the same rules and face the same dangers as them. As with remote witnesses, this could raise juror concerns about inconsistency and unfairness in the courtroom.

What can lawyers do to defuse juror concern or anxiety as we feel our way forward? Reassure jurors. Communicate with the court, counsel and jurors about the special measures in place. Acknowledge juror fears or doubts and honor their service in an exceptional time.

• In pretrial conferences, encourage the court to make clear how voir dire and all courtroom contact will go for the sake of predictability for everyone in the courtroom, including jurors.
• Recognize that courts are exploring creative solutions to reduce risk to all trial participants, and litigants must be ready to adapt. For example, in several jurisdictions, courts have required virtual jury selection followed by an in-person trial in the courtroom or an alternative space. While virtual jury selection is not a first choice when it comes to getting a feel for juror demeanor, it may be unavoidable in some jurisdictions.
• Capitalize on any opportunity to include a COVID-related question or two in any pretrial questionnaire your judge might present to jurors. Learn what you can about individual jurors’ COVID-19 issues and concerns that need to be uncovered. Do highlight any special health concerns or vulnerabilities unique to a particular juror’s risk. Do any of the answers telegraph a reluctance to serve?
• Look for opportunities during voir dire to ask one or two COVID-related questions. For example, how much personal impact has COVID-19 had on you? Has COVID-19 raised more concerns for you related to the economy, or related to your health or your family’s health?
• Reinforce the judge’s guidance about jury service. Talk about the right to a jury trial, which is an integral part of our legal system, and about how important their service is, especially during a time of challenge for our jurors. Jurors can be compared to essential workers and reminded that the special measures in the courtroom are designed to keep jurors safe.
• Prepare to hear more jurors request excusals on the basis of COVID-related hardship for themselves or their families. This can result in a lower yield from the pool and may require a larger pool as well as more time for the jury selection process. You should also allow for a higher risk of losing jurors during the trial and perhaps consider seating more alternates.
• Reassure jurors by showing that you and your client take seriously—and follow—the rules, and that your team appreciates and champions the efforts of everyone in the courtroom to stay safe.
• Recognize that some people just may not be able to get past their fears based on their psychological makeup or personal challenges and obligations at home—and that they should be excused for hardship.
• Let jurors know you recognize their experience and realize it is not easy. Acknowledge their extra challenges of seeing, hearing, and feeling safe. Consider a clear face shield that at least allows jurors to see your expressions, even if you can’t see theirs.
• Ask the court to explain any special arrangements whereby witnesses are remote, or counsel is unmasked, at certain points in the trial. Suggest a  specific instruction for jurors along these lines: “The special COVID-19 measures you have seen in the courtroom, including for example remote witnesses and counsel addressing jurors without masks during certain times in the trial, are measures the court has required, are necessary for the smooth administration of the trial, and are not the fault of any litigant in the case. You are not to consider those measures in evaluating your verdict in this case. The court has asked the parties to assist in reducing exposure for everyone in the courtroom, including for you as jurors, by encouraging remote testimony. This helps reduce exposure to witnesses who may otherwise have to travel in airplanes and through large airports, which could put all people inside the courtroom at greater risk.”