The Sixth Amendment to the U.S. Constitution provides that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." The ongoing COVID-19 pandemic and its effect on the ability of individuals to travel and assemble at all, much less to convene in the close quarters of a jury, present particular challenges for the U.S. criminal justice system.
In the face of this pandemic, how can the accused's Sixth Amendment rights be safeguarded—in particular, how can criminal defendants be assured that their trials will be "speedy and public," that their fates will be determined by an "impartial jury" drawn from the district, that they may be "confronted by witnesses against [them]" in a constitutionally adequate way, and that they will have the effective assistance of defense counsel?
This Jones Day White Paper explores the tension between preserving the health and safety of the public and the demands of justice with respect to criminal trials.
When the extent of the outbreak of COVID-19 in the United States became apparent, the country's judicial system came to an abrupt halt. All manner of court proceedings, ranging from appearances on routine pretrial matters to multiweek jury trials, were postponed as cities nationwide adopted stay-at-home and shelter-in-place orders, and there was a general lack of certainty as to how long the system would need to be on hold. As the pandemic and associated restrictions in activity and operations approach a year with little prospect for a return to "normal" in the near future, the way forward remains unclear. Indeed, at this point, as private and government lawyers, judges, and court personnel have, by necessity, dramatically altered the ways in which they engage in, preside over, and administer litigation, it is reasonable to contemplate whether our justice system will ever completely return to the prior normal. And yet, the language of the Constitution and the basic rights it affords criminal defendants remain unchanged, as does the importance of ensuring that those rights are honored in particular cases.
As the pandemic persists, courts and litigants must continue to give considered thought to how to preserve the constitutional guarantees that are most fundamental to our criminal justice system. Our system has been, at its core, deeply personal; it has forever depended upon "live" human interaction with parties, judges, witnesses, jurors, and court personnel literally in the same room with one another playing out real-life dramas. The process of rethinking and retooling trials in the short term (and perhaps beyond) has required some innovation on the part of the judiciary and those who work alongside it. At present, proposed solutions focus on preserving the system we know to conserve the constitutional rights we value. But these solutions are fallible, with jury trials ill-suited to the virtual format and in-person trials facing practical limitations.
This White Paper will: (i) provide a sampling of the status of jury trials throughout the United States, and (ii) address the guarantees of the Sixth Amendment in criminal cases within the context of the present pandemic.
STATE OF AFFAIRS
The pandemic has dramatically disrupted almost every aspect of our society, and the judicial system is no exception.
Beginning in early March 2020, judiciaries across the country suspended in-person proceedings ranging from daily motion practice to multiweek jury trials. Though the last nine months have seen courts across the country successfully transition many of their usual functions to a virtual setting, the puzzle of conducting jury trials in the age of COVID-19 is still in its infancy.
Criminal jury trials, in particular, have proven largely incompatible with the present state of the world, given the constitutional guarantees discussed in this White Paper. As a result, months passed as courts grappled with these competing tensions. On June 4, 2020, the U.S. Courts' COVID-19 Judicial Task Force published a report titled "Conducting Jury Trials and Convening Grand Juries During the Pandemic," which contained a series of recommendations for courts seeking to undertake trials once again.1
In the time since, federal district courts have attempted to resume criminal trials with varying success.2 For example, in the Western District of North Carolina, criminal jury trials have been underway since early June 2020, following a May 29, 2020, order by the district's chief judge permitting their resumption.3
In contrast, the Northern District of Texas was among the first to stage a criminal jury trial employing social distancing protocols, but a month later, the resurgence of COVID-19 in the area led the court to continue all trials scheduled through the end of July 2020.4 Similarly, the Eastern District of Missouri's first criminal jury trial in three months was briefly interrupted when a court officer tested positive for the virus.5
Some federal jurisdictions are exploring pilot programs, while others are conducting a reduced number of in-person trials with COVID-19 protocols, and still others continue to delay the return to jury trials altogether. There is similar variance among state courts.6 In August 2020, a Texas state court reportedly became the first in the nation to conduct a virtual criminal jury trial over Zoom.7 Few, if any, courts have since followed suit.
Any progress made in the anticipated or actual resumption of in-person criminal jury trials faced yet another setback as COVID-19 cases continued to rise in the second half of 2020, leading to additional court closures and postponement of trials. In late October 2020, for instance, the Northern District of Illinois' Chief Judge immediately suspended criminal jury trials, which had resumed in August 2020, through January 2021.8 Despite the varying responses across the country, all must contend with the same constitutional demands as they proceed with their reopening (and reclosing).
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