PANDEMIC DISRUPTS COURT SYSTEM — BUT IT WILL BOUNCE BACK

Is this “the new normal”? The nation has experienced a tremendous amount of change in the midst of the COVID-19 pandemic. As with almost everything else, our justice system was forced to adapt quickly to an unpredictable and unprecedented situation. Courts across the nation had to figure out how return to jury trials to reduce the backlog of cases. Though jurisdictions vary on how and when to open, most would agree that this pandemic has changed jury duty and our jury system significantly. Some wonder: Is this “the new normal”?

Some of the initial issues in reopening the courts were related to logistics. Courts had to set up video streaming, social distancing barriers, new deliberation rooms, witness accommodations and various other safety mechanisms. Jurors are now surrounded by Plexiglas or seated socially distant at all times. An unfortunate byproduct of this is they can only be interviewed in small groups resulting in a longer jury selection process.

There is also the issue of masks. Masks interfere with people’s ability to hear and understand each other and to interpret credibility and emotions. Which, if any, players in the courtroom should wear masks? The jurors? The witnesses? The attorneys? The defendant?

Other questions that had to be answered were: Which witnesses can or should testify by video stream and which need to be live? How should courts go about actually interviewing jurors? No one had ever dealt with any of these questions. The answers varied across jurisdictions.

Another issue encountered by the court is extremely low juror turnout rates. The first day the Downtown Branch of the San Diego Superior Court resumed jury trials, it summoned 800 jurors, yet only 41 appeared. In most jurisdictions, when a prospective juror receives a summons, they can request to postpone their service or be excused for financial, medical or other hardship reasons. In the age of COVID-19, courts are seeing more of these requests than ever before, as well as extremely high rates of jurors who fail to answer their summons altogether. Under normal conditions, single defendant felony jury trials usually need between 36 and 60 jurors, depending on the charge. San Diego’s low rate of juror turnout is

consistent with other courts and a huge impediment to getting the courts running again.

The increase in legitimate requests for postponement and hardship excuses and the failure-toshow rate since the pandemic began also affects the diversity of jury pools. One of the goals of the Sixth Amendment is to ensure one an impartial jury of their peers. To do this requires a representative cross section of the community.

However, the list of people who would all likely qualify for a postponement or hardship excuse under current conditions includes teachers, students in lockdown, essential workers, people who are temporarily living out of the jurisdiction due to the pandemic, people who are working and supporting a family member, people who are remote teaching their children, people with compromised immune systems and people over a certain age. Losing this much of the community makes it much harder to find a representative jury.

Age and race can also affect a juror’s likelihood to appear or to get excused during the pandemic. The justice system has historically had problems getting panels to match the demographics

of the community; the fact that senior citizens, Black Americans, Latinx Americans and Native Americans are more vulnerable to COVID-19 only magnifies the problem.

Socioeconomic diversity is also more difficult to achieve right now. Variables such as the ability to pay for parking, child care, gas or transportation can influence jurors’ ability to participate. Courthouses where jurors park for free or have transportation traditionally have a better turnout and more diversity in their jury pools than courthouses that don’t. That is more true now than ever.

The COVID-19 pandemic has changed many things in our society forever, but our jury system need not be one of them. We will return to courtrooms someday without masks and Plexiglas.

In time, as infection rates go down, hopefully more people will feel comfortable serving on jury duty again — and be able and available to serve.

And as juries start to return in greater numbers, hopefully we can learn from these times and be able to increase the diversity in our jury pools. No one knows how long this will take or how these issues will affect the outcomes of cases. Only time will tell. In the meantime, we must remain patient. This is not “the new normal.” It is “the now normal.”