While most non-essential hearings and all jury trials were initially suspended until August 1, 2020, a recent order from the Supreme Court of Texas suggests that the most powerful Court in Texas may be ready to start authorizing jury trials to move forward in the very near future. On June 29, 2020, the Court issued its Eighteenth Emergency Order Regarding The COVID-19 State of Disaster which extended the moratorium on jury trial until September 1, 2020, but also included language that should be concerning to all parties going forward.
A Limited Number of Jury Trials Can Proceed Prior to September 1st - Without the Consent of the Parties
Under the previous emergency orders issued by the Supreme Court of Texas any jury trials held during the moratorium period required the consent of all parties involved. Therefore, no one, neither a party in a civil case like a car accident or a defendant in a criminal case, could be forced to go to trial during this time. Now, under the terms of this new order, any party could be forced to trial over their objection. This poses a couple of important questions.
Are Individual Courts Prepared and Ready to Address the Obvious Safety Concerns Involved with conducting Jury Trials?
It is very apparent that there are obvious safety issues involved with having a jury trial during this pandemic. The fact is that jury trials involve a large group of people in small confined spaces. Observing the varied responses courts have had for other proceedings since the pandemic began further validates this concern.
Some Courts are doing an excellent job in prioritizing the safety of everyone involved. However, other courts seem to still not understand the full scope of the pandemic. For instance, many courts initially refused to require everyone to wear a mask while in the courthouse. Some courts simply “strongly encouraged” the wearing of masks. Other courts made policies requiring all non-staff to wear masks as if being employed by the county makes you immune to the virus.
Inexplicably, some criminal courts are insisting that defendants and their attorneys appear in person for court only to find that the judges and the prosecutors are locked away and appearing electronically – making it painfully clear that the safety of some is prioritized over the safety of others.
We had one particular court in a nearby rural county insist that social distancing protocols would be followed despite acknowledging that there would be 8 people in a courtroom. This particular courtroom is one of the smallest we have ever been in and is literally no larger than many peoples’ living room.
Are Procedures and Polices in Place to Ensure that Parties’ Statutory and Constitutional Rights are Protected?
A major concern that emerges from reading the Supreme Court of Texas’ latest order is that it may be promoting judicial expediency at the expense of protecting the statutory and constitutional rights of the parties in civil cases and defendants in criminal cases.
The fact is that any jury trial that occurs during the pandemic will be unlike any trial that came before it. As my fellow trial attorneys will tell you, the most important aspect of any jury trial is the actual jury selection process. This is an opportunity for lawyers for all parties to question the potential jurors to determine who they are and what they bring to the table. This includes the jurors’ past experiences, their positional leanings, and their own biases. It is important to be able to fully interact with these jurors and hear not only what they say, but also how they say it. Fully assessing the mannerisms and facial expressions of potential jurors is an essential part of this process.
Unfortunately, this is going to be difficult, if not impossible, to do under the current circumstances. Typically, jury selection occurs in the actual courtroom and anywhere from 20 -50 (and many more in some cases) sit in the gallery of the court while the attorneys questions them. The attorneys are usually just a few feet away while they conduct the voir dire, or jury selection, process.
However, under operating guidelines being proposed by most courts now, the jury selection process will be moved out of the courthouse all together. Courts are preparing to conduct all voir dire in large auditoriums where the potential jurors and the attorneys will be much farther apart and have less direction interaction. Additionally, all jurors will be required to wear masks during the selection process. This will make it much more difficult to conduct an effective jury selection and in some cases may essentially take away a party’s right to effectively participate in the jury selection process.
Additionally, the Supreme Court of Texas’ Eighteenth Emergency Order Regarding The COVID-19 State of Disaster makes clear that jury trials will be different in many other ways.
The Court, over a party’s objection, may, and must in some situations, allow a witness to appear “remotely”, such as by Zoom or the equivalent. Imagine being on trial for a serious criminal charge that carries a significant prison sentence if convicted and the State is allowed to have their witnesses “testify” by video instead of appearing in court. Experience has shown that the ability to effectively cross-examine a witness is greatly decreased when forced to do it by remote means.
Even more concerning from the Supreme Court of Texas’ order is that it also allows a juror to appear “remotely” in certain situations. Imagine a juror sitting at home deciding your fate in an important criminal or civil case – while also texting and watching a little TV on the side. Seem like an exaggeration? Maybe, maybe not. But would you want your fate, or the fate of a loved one, decided in such a manner? The Supreme Court of Texas seems to be indicating that they are willing to take that decision away from you.