State and federal courts shut down all in-person operations in March 2020 based on the COVID-19 health emergency. Since then, many have struggled to reschedule the significant backlog of jury trials. While most courts adopted virtual platforms for motions proceedings, conferences and nonjury hearings, few courts impaneled juries because of the health risks of exposing court personnel, parties and large groups of potential jurors, as well as their families, to infection. With the rapid rise and spread of the delta variant, and the alarming increase in COVID-19 cases and hospitalizations, courts are having to adapt again to try and keep jury trials on track. 

One California federal court recently dealt with a COVID-19 infection during the trial and had to dismiss the jury for a day upon learning that a witness expected to testify that day tested positive.  While counsel who were conducting the trial were not exposed to that person, the court was able to resume the schedule after taking adequate precautions.

In Ohio, a federal judge issued an order requiring that all potential jurors be vaccinated. The defendants asked the judge to reconsider that decision and he agreed, accepting that there could be issues with selecting a representative jury and noting that the disparities in access to and acceptance of vaccines could cause a jury to be “less likely to reflect a fair cross-section of the community.” There has been more commentary about that concern recently. If vaccination is mandated for the jury pool, it is distinctly possible that jurors of certain racial, economic, political or other backgrounds could be excluded, thus raising the issue whether a jury would truly be of one’s peers.

Other courts have adopted masking and other strategies in lieu of vaccination. For example, the highest Maryland court issued orders effective August 9, 2021, mandating masks and social distancing for any unvaccinated members of the public, including jurors, who enter a Maryland courthouse. Among other issues, mask and social distancing requirements present logistical problems for the courtroom, requiring that jurors be spread out and not limited to sitting in the jury box, which could have the spillover effect of limiting public access to court proceedings. In response to that concern, some courts have begun streaming trials and substantive hearings, at least by audio.

Courts will grapple with these issues as they try to keep case schedules on track while balancing protection for the public during this latest COVID-19 surge. Civil and criminal litigants have already had their rights affected by delays in numerous substantive proceedings and the courts will continue to examine strategies to keep the wheels of justice turning safely.