I recently participated in a round table discussing jury trials in the COVID age. And here’s what I learned from that.
The judge on the panel, one of our local judges who’s conducted a few jury trials, basically let it be known that, as long as there are cases to try, as long as there are people willing to go to trial with the current mask situation, he’s not going to force anybody else to go to trial who doesn’t want to go to trial wearing masks.
But, as we all know, at some point, the volunteers are going to run out, and we’ll see what the playing field looks like.
For my part, I’m ready to try cases, mask or no mask. I’ve talked to several people who have tried cases with masks on, and it seemed to me to be the same as the feeling of butterflies we all get right before we speak. Once the trial begins, once you stand up and begin to talk, you don’t realize you have the mask on any more. That’s what they’re saying. I don’t have any reason to doubt that.
The current situation in Fort Pierce is that, out of our entire courthouse, there is one courtroom set up for jury selection. So, all of the judges who are conducting jury trials have to take turns using that courtroom. As you can imagine, that’s contributing to the backlog getting larger and larger because there are always new cases coming in and we can only get so many to the finish line.
Anyhow, we’re using one courtroom in the entire courthouse to conduct jury selection. Once the jury is picked and sworn, we can try the case in any of the courtrooms.
The jury rooms are not in use. When the jury goes out to deliberate, they’re put in one of the larger open rooms so they can continue to social distance.
Another change that I’m seeing is exhibits.
What most of us as trial lawyers are used to is you introduce an exhibit. You have the clerk mark it for identification. You lay the foundation. You ask questions to make the exhibit relevant to the case being tried. And then you ask the judge to accept it into evidence as your exhibit next-number-in-line.
At that point, trial lawyers typically do what’s called “publishing the exhibit to the jury”, which means we show it to the jury. We hand it, either to one juror or to the bailiff to hand to one juror, and the jurors look at it, one at a time, handing it to one another.
In the COVID age, we’re not doing that.
We are putting up a picture of the exhibit, in as much detail as we like, on a large screen TV in the courtroom. All of the jurors can look at the exhibit for as long as they wish, and then we move on with the trial, but they’re not handling the evidence.
The change happens after the jury goes back to deliberate. They are given gloves. They are given hand sanitizers. And all of the exhibits that have been introduced go back with them so they can examine them as closely as they wish.
I’m not sure what else to say about jury trials in the COVID era. I for one am certainly looking forward to things getting back to normal. Aren’t we all?
I’m going to cover this subject again in a future podcast, hopefully not too far down the road, after I have actually tried a case or two under the current situation. Then I can report back with my findings.
What I’ve shared with you today are really the findings of the other lawyers. There were two trial lawyers on this panel. They both have tried several cases, a couple together and a couple apart. They’ve had mixed results (win a few, lose a few), but they had some interesting tidbits that I’m salting away about each.