Criminal Justice

Resuming criminal jury trials would be 'reckless and irresponsible,' NACDL says regarding COVID-19

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Resuming criminal jury trials would be “reckless and irresponsible” given the risk of transmission of the new coronavirus and the burdens on defendants’ constitutional rights, the National Association of Criminal Defense Lawyers said in a report released Thursday.

“Given the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend,” the NACDL said in the report. A press release is here.

The report said a defendant’s ability to get a jury from a fair cross section of the community would be “sharply curtailed” during the COVID-19 pandemic.

Some courts have already issued recommendations that limit or suspend peremptory challenges and grant automatic deferrals to essential workers, people with health conditions that make them vulnerable to the virus, those living with at-risk people, and those returning to work after being furloughed.

Those likely to be underrepresented in jury pools include elderly persons; immunocompromised persons; and racial and ethnic minorities, who are overrepresented among hospitalized patients, the report said. Women are also likely to be underrepresented because they are more likely to have lost their jobs in the pandemic and are more likely to be caring for others.

In addition, the attorney-client relationship is affected when the lawyer or client fears transmission of the coronavirus, the report said. Fear of community contagion can also impede the defense team’s ability to conduct an investigation.

“Resuming criminal jury trials—particularly in areas of significant community-based transmission—would not only be reckless and irresponsible but would also undermine the truth-seeking purpose of trials,” the report said. A factor undermining the process: fear on the part of jurors, witnesses and others, according to the report.

Virtual jury trials are not the answer, the NACDL report said. Defendants have the right to confront their accuser under the Sixth Amendment, and their right to due process and confrontation includes the right to be present at trial. In addition, scientific studies suggest that “proximity affects empathy,” which could harm defendants who are separated from the jury in a virtual hearing.

The report adds that the Supreme Court has never recognized the constitutionality of a virtual criminal trial and has only allowed virtual witness testimony in narrow circumstances.

The report includes core principles for reopening courts, including these:

• In-person court proceedings should not be conducted unless independent medical experts certify that the conditions of the courthouse and in the community present a minimal risk of COVID-19 transmission.

• Courts should use pretrial release and other mechanisms to minimize pressures on the accused during the pandemic. The accused should have the unilateral right to elect a bench trial where that right doesn’t already exist.

• High-risk individuals should not be required to participate in court proceedings in which there is a risk of infection at the courthouse, including judges, lawyers, defendants, staff and witnesses.

• The use of virtual mechanisms in place of in-person hearings should only be used with the informed and voluntary consent of the accused.

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