After months of postponement due to the COVID-19 pandemic, courts are now beginning to resume criminal jury trials. But, one key ingredient is often missing: a live jury.
Court officials have adjusted to the requirements imposed by the pandemic by conducting trials that are either in-person and socially distant, or by video conference — both of which are in violation of the Sixth Amendment, according to a forthcoming essay in the Boston College Law Review Electronic Supplement.
“At best, these solutions are grossly unfair to all of those who participate in the criminal justice system,” warned Brandon Marc Draper, an assistant county attorney in Harris County, Tx., author of the essay.
“At worst, they violate the Sixth Amendment rights of the accused.”
Draper explained that many jurisdictions – including the one in which he works – have set forth procedures for conducting in-person trials that abide by social distancing guidelines.
However, such trials “raise a host of issues” for all those involved, argued Draper.
First, jurors will not take kindly to wearing masks for long periods of time and having to frequently get tested for the virus, get their temperatures screened, and apply hand sanitizer.
For this reason, a long and thoughtful jury deliberation is unlikely.
To the contrary, a “rushed deliberation that leads to an inappropriate verdict risks harming the accused, the victim, and the system at large.”
Second, citing an article in the Houston Chronicle, Draper explained that jury members in the COVID-19 era are likely to be whiter and more conservative.
Such a jury composition would violate the defendant’s Sixth Amendment right to a “jury that represents a fair cross-section of his community,” according to the essay.
Third, an in-person, socially distanced trial might not be fair to defendants and jurors.
According to the Harris County Criminal Lawyers Association, “Social distancing…will mathematically require panels to be so spread out neither a judge, a prosecutor, nor a defense attorney can adequately canvass the area while asking questions in the manner required to select a fair and impartial jury.”
Therefore, wrote the Association, “the idea of a Constitutionally guaranteed fair and impartial jury with due process of law under these circumstances is completely absurd.”
According to the essay, a jury trial by video conference would be equally, if not more, unconstitutional.
The Federal Rules of Criminal Procedure dictate that a trial court cannot receive a guilty plea by video conference and that the defendant’s presence is necessary “at every trial stage.”
Hence, “any trial exclusively conducted via video conference that resulted in a guilty verdict may be a per se error subject to reversal,” argued Draper.
More importantly, such a trial would prevent the defendant from exercising his constitutional right to confront his accusers.
In addition to violating the defendant’s rights, trials by video conference are prone to a host of technical, logistical, and other issues.
For instance, defendants and witnesses that are poor and/or that live in rural areas may lack access to the reliable, high-speed internet required for video conferencing.
Additionally, defendants may find it hard to consult with their attorneys given that they are in separate physical locations.
Online trials may also pose ethical concerns for prosecutors and defense attorneys.
Prosecutors may decide they cannot fulfill their duty to “seek justice” in a format that will confuse jurors, and defense attorneys may find it difficult to represent their clients when they cannot accurately determine the jurors’ feelings and assess their body language.
With these factors in mind, Draper concluded that “any jury trial conducted during the pandemic is likely to entail that the accused waive at least some of his Sixth Amendment rights, and that victims, prosecutors, defense attorneys, and judges proceed with the knowledge that such trials lack crucial elements of fairness provided by pre-pandemic trials.”
Despite the many problems inherent to both in-person and online trials, Draper explained that “the solution cannot be to cancel all criminal jury trials until the pandemic ceases months or even years from now.”
Faced with this reality and forced to choose between the lesser of two evils, the author argued that trials be in-person and socially distanced.
To ensure the fairness and constitutionality of these trials, the author recommended that the following measures be taken:
-
-
- Prosecutors should explain to victims and witnesses the concerns created by such trials and prepare them to testify under these unprecedented conditions;
- Defense attorneys should explain to their clients the rights they are potentially waiving;
- Judges should have all parties say on the record that they understand these issues and are willing to proceed; and
- The three parties mentioned above should work collectively to select jurors who are fair and impartial.
-
Draper conceded that even with these measures in place, in-person and socially distanced trials will create imperfect results.
Recognizing that “justice delayed is justice denied,” they must proceed nonetheless.
Additional reading: “In a National First, a Criminal Jury Trial on Zoom in Austin” by Crime and Justice News, The Crime Report, August 12, 2020
Michael Gelb is a TCR News Intern. He welcomes comments from readers.