JURY DUTY IN THE TIME OF COVID-19: A DRC STUDY

June 9, 2020

Ensuring the safety of all present in the courthouse is paramount and courts have established safety protocols that include requiring the in-court use of a face mask, moving trials and deliberations to larger rooms to adhere to social distancing guidelines, taking the temperature of anyone entering the court and denying entrance to those above a certain threshold, precluding nonessential parties from the courtroom, and using multiple microphones during jury selection in order to disinfect them between uses. (1) Some courts are also using video conferencing platforms, such as Zoom. In Texas, one-day civil trials conducted via Zoom, (2) then, on May 18, the state barred new jury trials until September 1.

The Southern District of New York has not announced whether it will adopt a video conferencing platform for virtual trials, but it has experimented with the technology. Prior to New York’s PAUSE order, United States District Court Judge Alison Nathan took the unprecedented step of allowing an ill juror to deliberate via FaceTime. (4) Although no reopening date has been announced, the Southern District of New York has outlined precautionary measures it will implement when the time comes. Chief Judge Colleen McMahon announced that plexiglass would be the norm at courthouses and that witnesses testify behind a clear plastic barrier, and jurors will be seated further apart than the jury box.

(5) Social distancing will be enforced in the security line with distancing indicators on the floor and limits on the number of lawyers in the courtroom as well as how many people can observe the proceedings. In addition to making and following hygiene protocols, court personnel will be screened for the virus and asked to self-report symptoms. (6) New York Chief Judge Janet DiFiore has described similar precautions for New York state courts. (7) While these safety measures are crucial to ensure the health of persons in the courts, these precautions may not be enough to quell jurors’ fears and anxieties about serving jury duty. The results from DRC’s latest study indicate that jurors are reluctant to come to court to serve as jurors.

STUDY DESIGN

In May 2020, DRC conducted an anonymous survey of 420 jury-eligible citizens in the counties that comprise the Southern District of New York (New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan) and the Eastern District of New York (Kings, Nassau, Queens, Richmond, and Suffolk), measuring the demographics of those districts. Potential jurors were asked questions about jury service in the wake of COVID-19. The results are summarized below.

If I were called for jury duty once the New York PAUSE order is lifted…The overwhelming majority of jurors are reluctant to serve jury duty. These results are significant because juror anxiety influences decision-making. From a physiological standpoint, anxiety disengages a region in the brain known as the prefrontal cortex, which plays a pivotal role in understanding rules, regulating emotion, problem-solving, and decision-making. A 2016 study published in the Journal of Neuroscience found that anxiety can disrupt a subgroup of neurons that are instrumental when making a choice based on relevant rules (e.g., a juror attempting to apply the jury instructions to the facts of the case). (8) This should come as no surprise given that our jury-eligible respondents self-reported their ability to concentrate on the case would be compromised.

In addition, COVID-19 poses a grave risk to defendants’ right to a fair cross-section of the community, as guaranteed under the Sixth Amendment of the United States Constitution. Juror anxiety about jury duty will almost certainly result in self-removal, whereby high-risk individuals disregard jury summonses or seek postponements. That might significantly change the jury pool. It has been well documented that COVID-19 has disproportionately affected racial and ethnic minorities. New York City, home to the respondent pool in DRC’s study, identified substantially higher death rates among Black/African American persons (92.3 deaths per 100,000 population) and Hispanic/Latino persons (73.4), compared to that of White (45.2) or Asian (34.5) persons. (9) Other high-risk individuals whose jury participation may be influenced are people 65 years and older and people with chronic lung disease or moderate to severe asthma, severe obesity, diabetes, or chronic kidney disease. (10) Jury panels are likely to underrepresent such vulnerable communities and/or demographic groups.

The courts must take active steps to mitigate such adverse effects before resuming jury trials, and must consider additional safeguards. Given the responses to DRC’s survey, it is important to identify potential fears prospective jurors may have. Trial attorneys should request a confidential questionnaire to gauge coronavirus-related concerns. Should these anxieties go unflagged, they may distort deliberations, give rise to unfairness, or breed resentment towards the court system. Below is a sampling of proposed additional voir dire questions:

1. Are you or any member of your household at higher risk for COVID-19 (i.e., 65 years or older, chronic lung disease or moderate to severe asthma, diabetes, etc.)?
2. Even with the court adhering to safety precautions, do you have any concerns about your health and safety as a juror?
3. In light of COVID-19, do you have any concerns about sitting beside or deliberating with other jurors?
4. Do you have any health concerns relating to COVID-19 that may affect your ability to give this case your full attention?
5. Do you have any additional concerns relating to COVID-19 that may affect your ability to serve as a juror?

Any and all approaches are open for discussion as potential means to limit juror anxiety. As Supreme Court Justice Hugo Black once wrote, “It is essential that the right of trial by jury be scrupulously safeguarded as the bulwark of civil liberty.” Thus, any safety measure must be analyzed alongside its corresponding impact on defendants’ constitutional rights.