My federal jury trial in a civil case scheduled for early June 2020 has been continued, rightly so. All trials in the District of Colorado were previously vacated and continued through May 29, 2020, so it seemed unlikely that a civil jury trial would go forward so soon. And this got me to thinking: What will jury trials look like going forward? Will older people or others at risk be excused from jury duty? Will the virus skew the make-up of juries and create appellate challenges? How will the pandemic impact speedy trial rights under the Sixth Amendment in criminal prosecutions?
COVID-19 provides a needed reminder that we have a Constitutional right to a jury trial.
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The Seventh Amendment, which applies to civil suits, provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
The preservation of these Constitutional rights poses critical challenges for our courts and trial lawyers. Jury trials must be resumed as soon as reasonably practicable, with priority given to criminal trials. Careful thought must be given to jury composition and impartiality. How will courtroom layout be affected? Will only 10 people be allowed in the courtroom at a time? Will lawyer movement in the courtroom be restricted? Will masks be required for jurors, lawyers, parties, witnesses and/or the Judge? Would masks affect evaluation of witness credibility? Are jury trials by video conference possible? And, on a more mundane level for all trials, bench and jury, will hotel and restaurant accommodations be available for out-of-town parties and witnesses?
We fought a Civil War without suspending the Constitution. We can work our way through these questions and challenges during this time of pandemic. A crisis has a way of focusing the best legal and constitutional minds in the country.