As COVID-19 continues to persist after hitting the year mark this March, trials have started to resume in courthouses across the country. The return to our judicial system has raised questions regarding a defendant’s Fifth Amendment due process rights and Sixth Amendment right to confrontation. A carefully selected jury can be the difference between conviction and acquittal, so it is imperative that courts are careful in proceeding with jury selection in the COVID-19 era.
As in-person trials resume, prospective jurors can anticipate mask mandates – either cloth masks or transparent face shields, plexiglass surrounding the witness box, and six feet of social distancing between jurors. In some jurisdictions, such as courts in San Francisco, courts require witnesses to wear transparent face shields, but no national policies have been implemented. Further, prospective jurors are generally excused if they are at a high risk for transmitting COVID-19, work or live at a nursing home or health care facility, and even if they express anxiety about in-person trials. In addition to the list of automatic excusals, judges retain discretion to excuse jurors who express any concerns related to the pandemic.
The Fifth Amendment provides that no one will be “deprived of life, liberty, or property without due process of law.” Through the Due Process Clause, a defendant is guaranteed a fair trial. According to Judge Denver of the Eastern District of North Carolina, “there is no pandemic exception in the Constitution.” As the pandemic continues to surge, judges are tasked with ensuring that juries are impartial, random, and fair. However, juries cannot be expected to deliberate over the course of a trial if thoughts of sickness and safety occupy their minds throughout the trial. As more prospective jurors are excused for COVID-19-related reasons, the jury selection process becomes less random. The impediment on the jury’s thought process and lack of random selection from the community is likely to hinder a criminal defendant’s opportunity to receive a fair and impartial jury under the Due Process Clause.
The Sixth Amendment gives defendants the right to an impartial jury. The requirement for an impartial jury has been understood to require a jury that is representative of the defendant’s community. While some courts have transitioned to in-person jury trials, there remains a physical barrier between the defendant and a fair jury selection – a cloth mask. Through voir dire in jury selection, defense attorneys and prosecutors can make judgments about juror attitudes based on their facial expressions and physical responses to questions. With the cloth mask, attorneys cannot make these judgments that would ordinarily work to create a more impartial jury. One proposed solution to this problem is using a transparent face shield, but scientific debate remains as to whether this is an effective measure to prevent the spread of COVID-19.
In addition to the issues presented by the use of cloth masks, jury composition will likely be skewed by the pandemic. Judges are allowed broad discretion in excusing jurors for COVID-19-related reasons such as age and anxieties about health and safety. Research shows that the virus disproportionately impacts minority groups. Thus, these groups are more likely to request excusal, and juries will likely become dominated by white male jurors. For juries to be truly impartial under the Sixth Amendment, the jury must be random and represent a cross-section of the defendant’s community.
After a year of the COVID-19 pandemic, few solutions have been formed to combat the Fifth and Sixth Amendment issues raised in criminal jury trials. Jurors are less likely to thoughtfully undergo a lengthy trial when they are concerned for their health and safety, resulting in disinterested and inherently unfair juries for criminal defendants. Further, to create a fair jury and satisfy procedural due process, attorneys and defendants alike must be able to judge the facial expressions of prospective jurors. Although banning masks is not a feasible option, implementing plexiglass around the jury box and witness stands and implementing the use of transparent masks is a step towards procedural fairness for defendants on jury trials. When the United States becomes closer to controlling the impacts of the novel COVID-19 virus, defendants will become closer to impartial and representative jury selection for in-person trials.