Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Jurors in Short Supply as Courts Resume Trials Amid Pandemic

Feb. 17, 2021, 9:46 AM

State courts attempting to resume jury trials have plenty of plexiglass, hand sanitizer, and masks. Finding enough jurors is another matter.

“Nobody wants to serve,” said Lorna Alksne, the presiding judge for the Superior Court in San Diego, which has had an unusually low 5% yield on jury summonses in advance of its first trial this month since last fall.

Potential jurors already worried about missing work may now also fear for their safety in courthouses or while commuting there due to health risks posed by the pandemic, said Jeremy Fogel, a former federal judge and an executive director of the Berkeley Judicial Institute.

The resulting shortages threaten to increase trial backlogs that have been growing for nearly a year since Covid-19 forced courts across the U.S. to curtail in-person proceedings.

Courts are facing growing pressure to reopen safely, Fogel said. “No one expected the pandemic to last this long,” and the temporary measures courts implemented early on, such as closing their doors entirely, are now “less sustainable,” Fogel said.

The highest state courts in Iowa, New Mexico, North Carolina, and Massachusetts recently ended their suspensions of in-person jury trials. Many states, including California and Florida, have no statewide jury trial restrictions in place and leave the decision to local courts, according to data from the National Center for State Courts. Most local courts still need approval from their state’s highest court before resuming trials.

Reluctant to Serve

To get trials up and running again, the Trial Court of Massachusetts began a pilot program in January that uses six-member juries instead of 12. The pilot allows for social distancing of jurors and court staff, and gives the court more flexibility in the face of reluctant jurors, said trial court Chief Justice Paula Carey.

The courts added so much plexiglass that some jurors said they felt safer there than at the grocery store, Carey said.

Nevertheless, the Massachusetts courts found it hard to nail down how many of the summoned jurors would appear, Carey said. And some jurors with medical conditions “that really didn’t need to be there,” came to court anyway, not knowing that they could defer their service.

Lawyers and judges also had to adjust to speaking to masked jurors, which made it difficult to see if their words were resonating, Carey said.

While the trial court was able to fully impanel five juries during its pilot program, soon, “there are a couple of locations where we are probably just not going to have enough people show up,” Carey said.

Drawing in Jurors

“Vaccines should reduce prospective jurors’ level of anxiety,” but in the meantime, making jurors feel comfortable requires consulting with healthcare professionals and “a serious and well-publicized effort to create as much safety as possible,” Fogel said.

New Mexico state courts require jurors to undergo a health screening and temperature check and remain socially distanced. Jurors receive “jury bags” with masks, sanitizer, pens, and notepads to reduce the sharing of materials, said New Mexico Supreme Court Chief Justice Michael Vigil.

The state is not concerned about its 70% attendance rate for qualified jurors and found that it has been beneficial to make jurors videos and send letters that outline public health procedures.

Alksne personally welcomes jurors to let them know how valuable they are to the judiciary. Their court also administers a survey to ask jurors how to make the experience safer.

She said she doesn’t blame people for being reluctant to serve and recognizes the importance of keeping at-risk people safe. But people willing to shop at grocery stores or eat out should “come down and serve,” Alksne said.

In Iowa, the state has managed to maintain the same jury yield of roughly 60% in September and October 2020 compared to 2019. “We’ve thought hard and we’re working hard to try to make sure that they’re safe,” said Supreme Court Justice Matthew McDermott.

Courts in rural areas “seem to have had somewhat less difficulty” finding jurors, Fogel said, “although some urban courts are beginning to make progress.”

While jurors may be hesitant to show up, once they do, the time and money courts have put into safety procedures appear to make a difference.

Almost 97% of New Mexico jurors surveyed said that “the courts made efforts to minimize the risk of contracting the coronavirus,” and 95% said that they “felt safe throughout their jury service,” Vigil said. Iowa’s survey results also showed that jury trials have gone smoothly.

Some jurors have even found jury duty a welcome change in their personal routine, Fogel said.