Legal experts and trial attorneys know how important voir dire is for a jury trial. But the COVID-19 pandemic is transforming the process of selecting a jury—and causing significant problems for attorneys vetting potential jurors.
The stakes are high. In a capital case, a poor voir dire process can result in the wrong man being found guilty and sentenced to death. For civil cases, the injured person or grieving family will not get the justice they so rightly deserve.
While there is no perfect solution or easy answer for how to conduct voir dire during a crisis like COVID-19, courts should ensure that safety measures put into place for jury selection do not significantly hamper an attorney’s ability to put together the best possible jury, and attorneys should advocate for practices that best preserve the purpose of the voir dire process.
Here are some concerns that COVID-19’s impact on voir dire raises.
Face Masks Can Prevent Attorneys From Adequately Assessing Potential Jurors
The need for potential jurors to wear face masks limits an attorney’s ability to read the jurors’ facial cues and nonverbal communication. The old adage that 90% of communication is nonverbal applies to courtroom selections. Attorneys rely on the ability to adequately assess people’s facial expressions to gauge their suitability for serving on the jury.
Options such as face shields and plexiglass barriers can protect public safety and reduce the barriers to nonverbal communication posed by face masks. But courts facing already strapped budgets may not be able to afford these more costly safety measures.
One remedy would be for attorneys to offer to pay for the costs of face shields and/or plexiglass barriers for the potential jurors. But that introduces the possibility of future legal challenges. For example, if a judge refuses to let the attorneys provide these types of protective equipment, would that provide grounds for an appeal? Conversely, would allowing attorneys to provide these types of equipment to improve their ability to select a jury create inequity in the courtroom because public defenders and other attorneys would not have the means to pay for such items? And how will future higher courts rule on these matters?
These are unprecedented legal times, but one thing is clear—both trial attorneys and courts will need to weigh the pros and potential cons of these options to determine their best course of action.
Limits on Jury Selections Can Reduce Attorneys’ Ability to Select a Fair and Impartial Jury
The challenges that COVID-19 poses for jury trials go well beyond the problem of face masks, though. Limits on the number of potential jurors who can be in the box at one time due to social distancing measures also reduces an attorney’s ability to effectively evaluate a juror pool. Normally in pre-Covid times, you might have a half-day of a week-long trial to select your jurors. If you reduce the number of jurors you can select from, for example from the 14 you would normally have in the box to 6, it would greatly expand the time it would take to question the potential jurors and determine their fairness and impartiality.
With the already stacked dockets courts face, limiting the jury pool to allow for social distancing runs the risks of further reducing the time attorneys have to properly vet jurors. Further, much of the jury selection process relies on not just assessing the nonverbal cues of the potential juror being questioned but also watching for reactions and indications of bias or other problems from the other potential jurors in the box. But with a reduced number of jurors evaluated at one time, you also reduce the attorney’s ability to better understand the jury pool as a whole and select those best suited to the trial.
The COVID-19 pandemic also decreases the potential pool for jurors in other ways. Many potential jurors may be in groups deemed more vulnerable to the virus and therefore may be excused from jury duty. Given the disruptions to schools and daycares, they may also have child care duties that prevent them from sitting on a jury. Overall, courts are being advised to expect lower jury yields.
But even in the best of times, many people are reluctant to serve on juries. In a recent survey, 74% of respondents indicated that concerns about their health if called to serve as a juror would make them anxious about being in close proximity with other potential jurors.
The Use of Masks and Limited Jury Selection Can Cause Legal Challenges
These legal issues with performing voir dire in the time of COVID-19 mean that the future of the cases tried now under these unprecedented circumstances may be uncertain. Legal experts expect a wave of challenges and appeals based on the decisions courts have made in response to COVID-19. Several court cases have already been filed to challenge the voir dire process or the decision to go ahead with a case in these difficult circumstances.
The question for courts and the legal field is at what point do issues with jury qualifications and voir dire cease to become merely tactical considerations and instead become constitutionally significant? When do these issues amount to denying defendants or plaintiffs a fair trial by a fair and impartial jury? When do they result in a defendants’ ability to appeal a verdict based on receiving ineffective assistance of counsel?
These are the questions we face. The courts have an unprecedented and monumental challenge in trying to ensure the public’s safety while resuming court cases during Covid, and they must meet that challenge. But they must also weigh safety protocols against the burden those guidelines place on an individual’s pursuit of justice and find a way to balance these competing concerns.