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Virtual Selection, Virus Screening Among Judiciary Jury Guidance

June 10, 2020, 7:13 PM

The federal judiciary issued recommendations on how juries can proceed in the coronavirus era that include pre-screening jurors based on health, using larger courtrooms for jury assembly, and virtual jury selection in certain circumstances.

The Administrative Office of the U.S. Courts’ guidance report was released Wednesday as courts take steps to reopen following more than two months of closures in response to the virus outbreak that has infected nearly 2 million people in the U.S.

Trial court attorneys and litigants have been waiting for guidance on how federal courts plan to restart jury trials, which normally would put people in close contact in the jury room, the courtroom and during deliberations.

The new guidance is the most comprehensive list of suggestions to-date for the judiciary as a whole. Restarting juries is up to each court and, in some cases, each division of that court.

“When each court determines that the time is right, the judiciary must reconstitute jury trials during the COVID-19 pandemic,” the administrative office said in its report.

There are 94 trial courts, and some already have released their own plans for restarting jury trials and grand juries, including the continuation of social distancing.

Some adopted measures are included in the guidelines. For instance, the federal trial courts in Montana and the Middle District of Georgia are restarting grand juries in their courthouses by separating jurors in different rooms or courthouses by video.

Masks, Health Questions

The suggestions are as broad as enhanced cleaning of court facilities and as specific as swapping identification pins for stick-on badges to limit contact with jurors.

Among changes courts can adopt is virtual jury selection in civil cases and with consent in criminal cases. That may be controversial, especially in criminal matters where the rights of defendants and the use of technology may collide with the Constitution.

In a recent report, the National Association of Criminal Defense Lawyers said virtual voir dire, when prospective jurors are questioned by attorneys or a judge during the selection process, “compromises the ability to get up-close and explore potential juror demeanor and bias as expressed through non-verbal communication.”

The guidance also suggests pre-screening prospective jurors through a supplemental questionnaire that’s related to Covid-19. Questions could include whether potential jurors or people close to them were diagnosed with the virus or if they have a medical condition that puts them at higher risk for infection.

Another suggested change would be a requirement for masks in the courthouse. About 50 federal trial and appeals courts have instituted a face covering requirement in at least one of their facilities, according to a Bloomberg Law analysis.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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