by Hon. Evette Pennypacker
Courts across the nation are beginning to reopen their doors to jurors. Varying resources, local COVID case numbers, and community sensitivities are creating different procedures. But, based on lessons learned from the panel I participated in with Judges Alan Albright, Edward Chen, Anne-Christine Massullo, and Yvonne Gonzalez Rogers during our most recent ABTL panel discussion, it is clear that with careful planning jury trials can be done safely even before we have a vaccine.
Unlike my fellow panelists who are conducting and planning civil bench and jury trials, the trials I conducted, which created the protocols for COVID jury trials in Santa Clara County Superior Court, were all criminal trials. But a trial is a trial—something I learned in real time when given a criminal assignment as a new judge after litigating intellectual property and complex business cases for nearly two decades. Whether state or federal, civil or criminal, courts and counsel face the same issues when conducting trials during COVID. Summarized below are some tips for making it work.
First, you need to create the right mindset for a COVID jury trial:
Juror safety and comfort is critical. Jurors must see that court and counsel take their safety seriously. This means making sure your actions cater to those most sensitive to the virus by routinely using your hand sanitizer, wiping down surfaces, and wearing a mask that covers your mouth and nose. Jurors are watching; if you share pens or microphones or touch the water jug at counsel table without wiping them off, they will notice.
Communication is key. The pre-trial conference is more critical than ever; maintaining safety requires considering every detail of the trial process. Counsel need to know protocols for exhibits, remote testimony, impeachment, how to question jurors, where to stand to maintain social distancing, whether witnesses will wear masks, and so on.
Cooperation regarding safety is not optional. Obviously this is a trial, and lawyers on each side want to win. But when the issue is safety protocols during a pandemic, the fight should be set aside. Work with the court and your opponent to agree to, and then follow through with, procedures to protect everyone’s health.
Be Patient. Everything takes longer. We have to bring in smaller groups for voir dire, fewer people can be on an elevator, surfaces and objects need to be cleaned between uses, there are technical problems, and communication is more challenging. Build in this extra time, prepare your witnesses and clients for this pace, and breathe.
Now for the mechanics:
The courtroom: In Santa Clara County, we use average-sized courtrooms for jury selection rather than an assembly hall or auditorium, for example, to maintain control over sanitization and to create processes that can be used as long as the pandemic lasts. Seats are taped off to permit only a small socially distanced number of people to sit in the courtroom. Markers on the floor show where people can safely stand, and Plexiglas is placed as a physical barrier at counsel table, around the courtroom clerk and court reporter, and at the witness stand. Hand sanitizer is everywhere, including in the jury box, and sanitizing wipes are freely available. Counsel and client are separated by Plexiglas at counsel table, and the “jury box” is the entire side of the courtroom. Some courts are providing monitors facing the audience to permit the observing public to see virtual testimony and exhibits. Other courts have a public access telephone line to call into to listen to all court proceedings.
Counsel conferences: The days of the entire legal team sitting at counsel table with their client are gone. For remote trials, everyone may be in a different building. For in court trials, parties cannot lean in close and whisper. Chat functions, breaks for conferences, permitting texting in the courtroom, and other measures need to be worked out in advance.
Side-bars: Similarly, how will the court and counsel confer outside the presence of the jury in a remote trial—chat, telephone, a virtual break out room? In my live jury trials, I have counsel step quickly into chambers. Surprisingly, these conferences are faster and more productive because we can talk and move freely while completely outside the presence of the jury’s keen ears and watchful eyes.
Hardships: San Francisco County conducts hardships online using Survey Monkey. Other counties conduct hardships outside under tents, use other online services, or have kiosks in the courthouse. In Santa Clara County, groups of 20 at a time come to the courtroom, receive information from the judge, then fill out either a hardship form or a case questionnaire. Pens are either given to the jurors or sanitized with pen cleaners and divided into “used” and “clean”. All jurors, counsel, and courtroom staff wear masks throughout the process.
Voir dire: Some courts question one juror at a time virtually. Others use an assembly hall or their largest courtroom to bring in larger groups. In Santa Clara, a questionnaire is used for all cases to speed up selection. Counsel meet and confer regarding cause challenges after reviewing the questionnaires. Jurors excused for cause are contacted by phone or email and excused without returning to court. Jurors not excused for cause are contacted and told to return directly to either the courtroom or a spill-over room. Jurors in the spill- over room are able to listen to voir dire through a virtual platform. Attorneys stand at a podium in the well and question all the prospective jurors that can safely fit in the room. Everyone wears masks. So that the court reporter can hear, jurors questioned individually stand at a podium equipped with Plexiglas and a microphone they do not have to touch.
Seating jurors: As jurors are excused, some courts have jurors stay in their seats until a break. This can be challenging from a record keeping perspective. Other courts replace excused jurors immediately, giving jurors coming into the box the option to remain standing or to take a sanitizing wipe and wipe down the chair before sitting down.
In court testimony: Some courts require witnesses to wear masks during testimony. Others equip the witness stand with Plexiglas in a U-shape with or without a top, and permit the witness to testify without a mask. After the witness testifies, the witness stand, microphone, and Plexiglas must be wiped down with sanitizing wipes. Some courts have the resources to have janitorial service do this, others ask the witness to replace their mask, wipe down the area, and then throw the sanitizing wipe in a trash can next to the witness stand on their way out.
Remote testimony: The ABTL Template for Virtual Bench Trials is a handy outline of the issues that must be considered for remote witnesses, including ensuring the witness has the correct equipment, an adequate internet connection, an appropriate background, and is not being coached; what to do when the technology fails (which you know will happen at least once); and protocols for using documents. When I permitted a witness to testify virtually in my first trial, even after addressing these issues and the Sixth Amendment issues that would not arise in civil cases, several concerns remained.
Would the witness treat the oath seriously testifying from home? A way to address this is for the court to administer the oath and confirm with the witness that there is no one else in the room, the witness is not using notes or other documents, and no chat or other communication program is on or being used during testimony.
What would the jury see other than the witness? The jury would see all witnesses who appear in person in the same setting—the generic witness stand next to the bench. Remote witnesses necessarily testify in a different setting. A fake background cannot be used because it could conceal another person or items in the room that might assist or influence testimony. Thus, juries inevitably receive more information about remote witnesses based on the witness’s surroundings. This cannot be entirely avoided, but it can be addressed by conducting a test run outside the jury’s presence so that any objections or/and adjustments can be made before the witness testifies.
Would the witness be viewed as more or less credible based on setting? Poor lighting, informal dress, an unattractive camera angle, not looking at the camera—these are all visuals that can influence the way a jury perceives a witness’s testimony. We have all seen these issues in Zoom meetings and in bench trials. In civil cases, you can meet with your witnesses and work all of this out in advance, which will presumably become a new part of all witness prep and trial strategy.
Would the witness hear objections and stop speaking? This can be an issue when using telephones or where the connection is not robust. We have all been on conference calls where a participant using a speaker phone cannot hear anyone else speaking and never pauses. This is a serious problem during a hearing or trial where objections are made and a witness continues speaking, filling the record with material the court may later have to strike. An equipment test before testimony is given will identify if this is an issue.
Deliberations: Some courts have sufficiently large rooms to allow jurors to deliberate there in person. In one Alameda County trial, the jury foreperson was at court to bring questions to the judge while the rest of the jurors deliberated remotely using notebooks provided by counsel. In Santa Clara, the juries deliberate in the courtroom so that they can continue social distancing and benefit from the high ceilings.
Shortening trial time: Given the extra time and the backlog that pandemic-era trials create for both bench and jury trials, courts and counsel are devising ways to shorten the trial. In bench trials, some courts are taking direct testimony through written statements and having lawyers conduct cross examination live based on the written statement. Preparing and sending exhibits to the court and opposing counsel well in advance is also a time saver. Some courts are using an 8:30-1:30 trial schedule, which avoids the jurors looking for something to do over a long lunch hour and allows them to handle child care and work issues in the afternoon.
Public access: Courts are public forums. But the proceedings cannot be recorded without a prior court order. Permitting access over the telephone or other virtual means exposes court proceedings to mischief. Where sensitive information is at issue, the parties should discuss technical and other protections to avoid court proceedings being improperly recorded and published.
As you can see, there is a lot more to think about and plan in COVID-era trials of all types. The good news is that jurors are showing up for service and staying to hear, deliberate, and decide cases. Once jurors understand the steps court and counsel have taken to protect juror safety, most are ready to serve even during a pandemic, which is a very nice piece of news during these strange and stressful times.
Judge Evette D. Pennypacker serves on the Board of Governors of the ABTL Northern California Chapter and is Assistant Criminal Supervising Judge of the Family Violence Unit on the Santa Clara County Superior Court. Before her appointment by Governor Brown in 2018, Judge Pennypacker was a Partner at Quinn Emanuel Urquhart & Sullivan, LLP where she practiced intellectual property and complex business litigation.