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Excerpted from: Dubin Research & Consulting, Covid-19's Next Victim? The Rights of the Accused, 44-MAY Champion 22 (May, 2020) (201 Footnotes) (Full Document)
On May 24, 2020, Benjamin Netanyahu walked into a courtroom in Jerusalem to face charges of corruption. The occasion was momentous by any measure--Mr. Netanyahu became the first sitting Israeli prime minister to stand trial. But despite these historic charges, the media appeared equally fixated on what Mr. Netanyahu was wearing. Why? He walked into court donning a blue surgical facemask, consistent with public health restrictions for the coronavirus. And Mr. Netanyahu was not alone. All of the lawyers and judges in attendance also wore masks, while the three-judge panel positioned themselves behind a glass divider. Few have considered how these changes will impact Mr. Netanyahu's trial, but none can deny that the stage for one of the biggest trials in the world had been fundamentally altered.
This is no isolated incident. The COVID-19 pandemic is transforming the world's legal institutions with alarming speed. In the United States, many federal and state courts have indefinitely suspended most in-person proceedings, including a near-total shutdown of criminal and civil jury trials, to limit the spread of the coronavirus. In view of health concerns, some trials were even halted mid-testimony, with judges declaring mistrials to limit the risk of infection. Maintaining an indefinite pause on jury trials is a temporary response to a global pandemic, not a long-term solution. State courts handle roughly 106,000 trials per year, tens of thousands of which have already been suspended. Likewise, many defendants facing criminal charges remain in custody, possibly endangering their right to a speedy trial and further risking exposure to the coronavirus. As stay-in-place orders ease and public spaces begin to reopen, jury trials will have to resume in some capacity.
When this occurs, safety from infection will rightly be at the forefront of everyone's mind. Toward that end, judges have been developing innovative solutions to protect participants, especially jurors. Plans have included, inter alia, requiring masks, moving trial and deliberations to overlarge rooms to ensure social distancing, reducing the size of juror pools, and/or conducting proceedings via video conferencing platforms (e.g., Zoom or Microsoft Teams). But while safety is imperative, the integrity of the jury system is also sacrosanct. Trials have operated roughly the same way since the founding of this country--and for very important reasons. Allowing criminal defendants to look their accusers in the eye, for instance, serves the truth-seeking function of cross-examination. Likewise, packed courtrooms open to the parties' friends and families, as well as the press, promote systemic fairness. Limiting not only who may view the proceedings, but also how they are viewed, could fundamentally alter the judicial system.
As courts experiment with new procedures, they must take affirmative steps to protect defendants' civil liberties-- especially in the criminal context. As a threshold matter, while "trial by video" may be permissible in civil cases, it is wholly insufficient for criminal cases. Due process concerns would likely render a digital jury trial unconstitutional in *23 the face of government prosecution. A long line of cases establishes defendants' right under the Sixth Amendment to be physically present. Thus, video conferencing technology cannot replace criminal jury trials. What is needed, then, is a nuanced discussion about how best to resume in-person proceedings.
It would be naïve to dismiss the difficulties of restarting face-to-face jury trials. Participants must feel absolutely comfortable and safe in all aspects of the proceeding. Myriad issues must be considered--including voir dire, procedures for deliberation, effective advocacy, providing public access, speedy trial rights, and enforcing the basics of social distancing. At minimum, the pandemic will make it difficult to obtain a fair cross-section of the community, as required by the Sixth Amendment. In a recent study conducted by Dubin Research and Consulting ("DRC"), 74 percent of respondents indicated that they would be concerned about their health if called to serve as a juror and would be anxious about being in close proximity with other potential jurors. Given these concerns, high-risk (or simply risk-averse) individuals will undoubtedly self-select--refusing to respond to jury summonses for fear of infection. The judiciary must carefully consider these consequences and take active steps to mitigate them--before rushing to resume criminal trials. It is time to formulate a comprehensive plan for conducting criminal jury trials in a post-COVID-19 world.
This article proceeds in four sections.
Section I describes how courts have addressed, or have proposed to address, the pandemic to date.
Section II explains how conducting trials by video would violate criminal defendants' core rights, based upon constitutional precedent and human psychology.
Section III explores the reality of resuming in-person trials during a pandemic and identifies a host of obstacles that courts must first address.
Finally, Section IV provides a set of core principles that should guide the operation of jury trials during these challenging times.
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As described above, the COVID-19 pandemic presents significant challenges to the fair administration of justice. While fear of infection naturally takes center stage, courts must be careful not to trample on the civil liberties of criminal defendants. Toward that end, we propose a set of core principles that we hope will guide courts walking that thin line. While there is no perfect solution to balancing public health and due process for those accused, the rights of criminal defendants deserve no less weight. The guidelines set forth below would help ensure a fair and constitutional process going forward. The criminal justice system provides a number of rights to accused defendants. Each defendant may want to prioritize these interests differently, as is the defendant's constitutional right. For example, a defendant intent on pursuing a speedy trial may consent to video proceedings to accommodate that goal. A different defendant may place great value on face-to-face witness confrontation and reject the use of such technology. Defendants should not be required to abandon protections except on a voluntary basis--based on an informed prioritization. Any proceeding involving diminished procedural rights (e.g., a virtual trial) should only occur with the defendant's intelligent and knowing consent.
The court must review procedures for assembling venires to ensure that the jury pool adequately represents the community at large. The court should consider publishing its plan for ensuring a representative cross-section of the community. In doing so, it should assure transparency in the demographic data of the jury pool so that counsel may challenge its composition as necessary.
Courts should develop standing plans to ensure the safe, socially distant gathering of witnesses, jurors, and staff. Social distancing should be conducted in a manner that will not dilute cross-examination, jury deliberation, and other hallmarks of due process. Courts must ensure that jurors, especially, feel safe during all phases of the proceeding--during selection, trial, and deliberation. We recommend sending safety guidelines to all prospective jurors, along with their respective summonses.
Measures must naturally be taken to ensure that all participants are safe, including social distancing. However, these measures should not come at the expense of defendants' rights. For example, courts must ensure that defendants' and jurors' ability to see other participants--and pick up on nonverbal cues-- remains uncompromised. For instance, any divider used to shield witnesses or jurors must be sufficiently transparent.
Given the responses to DRC's survey, it is important to identify fears that prospective jurors may *40 have. Trial attorneys should request a confidential questionnaire to gauge pandemic-related concerns. For instance, attorneys may assess whether a prospective juror would have concerns about his or her health--even if the court adopts safety precautions. Likewise, attorneys may gauge whether a prospective juror, or any member of his or her household, is at higher risk for COVID-19 infection (e.g., 65 years or older, hypertension, or diabetes). Should such anxieties go unaddressed, they may distort deliberations and give rise to unfair results or mistrials.
Courts should not allow new safety measures to impair the confrontation rights of criminal defendants. Even a great idea for safeguarding public health falls flat if it does not pass constitutional muster.
Dubin Research & Consulting is a national litigation consulting firm specializing injury selection, focus groups, trial strategy, and demonstrative aids.