By Justin Sarno and Jayme Long

Law360 (April 12, 2020, 8:02 PM EDT )

Justin Sarno

Jayme Long

As the COVID-19 pandemic extends unpredictably throughout the course of 2020 and alters our way of life, questions arise regarding the viability of jury trials — how can they be conducted? Under what circumstances? And at what risk to human health?

Social distancing mandates from federal, state and local authorities have caused businesses to shut down, and public gatherings have been effectively prohibited, while taking into consideration, of course, that the lifeblood of a democratic society is one that promotes freedom of choice, association, and the right to travel.

In light of its fluctuating characteristics, the coronavirus has managed to disrupt the functioning of everyday institutions, including our courtrooms across the United States. Among the numerous issues that remain unclear in the face of a pandemic is how certain, fundamental rights — such as the right to a trial by jury — will be adversely affected.

This is especially difficult to assess, in light of the fact that pandemics carry the potential for extended periods of disruption and can reemerge in waves until their virulence is contained. In the meantime, virtually all institutions of modern society remain paralyzed, including the court's workforce, litigants, jurors, lawmakers and other key personnel.

To assess the effect of the COVID-19 pandemic within the context of long-standing rules of jurisprudence, such as the right to a jury trial, a brief background regarding our Constitution is warranted.

The Right to a Jury Trial

The right to a jury trial is emblazoned within the fabric of our jurisprudence. It is more than 800 years old. Indeed, Article III of the U.S. Constitution states that all trials shall be by jury. This right was expanded thereafter by constitutional amendment.

Specifically, the Sixth Amendment to the Constitution provides that "[i]n 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 defence."[1]

Furthermore, the Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."[2]

According to the U.S. Supreme Court in Simler v. Conner, "[t]he federal policy favoring jury trials is of historic and continuing strength."[3] In fact, according to the Federal Rules of Civil Procedure, Rule 38, "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution — or as provided by a federal statute — is preserved to the parties inviolate."[4]

The term "inviolate" speaks volumes. The right to a trial by jury is as sacrosanct to the judicial community as the colors red, white and blue are to American patriotism. It is the vehicle and mechanism for fairness in our legal system, and a means by which democracy thrives.

Social Distancing

While the right to a jury trial may be constitutionally immune from external attack, the threat of infection to humanity is an unpredictable force. Throughout history, mankind has endured the emergence of various diseases and afflictions. How mankind has confronted global pandemics has differed greatly, and it is greatly a byproduct of the zeitgeist.

The 1918 flu, also known as the Spanish flu, lasted almost two years to 1920 and is widely regarded as one of the deadliest pandemics in modern history. The response to the Spanish flu was not dissimilar, in principle, to stay-at-home and social distancing directives that have been issued in 2020 with respect to COVID-19.

In 1918, various cities and communities across the United States shut down most public gatherings and quarantined victims in their homes. Ultimately, by the end of the pandemic, at least 50 million people had died, including more than 500,000 Americans.

In fact, the concept of social distancing was not unfamiliar to the federal government in terms of promulgating a national health "security strategy." Specifically, federal law provides that, as part of public health preparedness goals, the National Health Security Strategy shall include provisions for developing and sustaining federal, state, local, and tribal essential public health security capabilities, which include, inter alia, "[d]isease containment including capabilities for isolation, quarantine, social distancing, decontamination, relevant health care services and supplies, and transportation and disposal of medical waste."[5]

Though social distancing has been historically regarded as a mechanism for mitigating the exponential effect of a global pandemic, the effect on jury trials has been far less understood.

How can the right to a jury trial and social distancing be reconciled in 2020?

Courts are not everyday facilities that can be subject to indefinite closure. It is imperative that they continue to function — and operate effectively — so that the rules of law and constitutional guarantees that form the underpinnings of our democratic society can be applied in an orderly fashion. The question becomes: How can that be accomplished during a global pandemic?

Given mankind's history of pandemics, it would seem surprising to think that federal and state governments have not previously anticipated disruptions to our court system.

Indeed, they have — to a certain extent. For example, in November 2005, President George W. Bush released a national Strategy for Pandemic Influenza, in which he communicated to the American people that a new strain of the influenza virus had been identified (i.e., the avian flu), and that it may result in the next human pandemic. Bush's strategy offered an approach for uniformity, insofar as it articulated guidelines to promote a multilevel response on behalf of local, state and federal governments.

Thereafter, in March 2007, in an effort to take the planning process a step further, the U.S. Department of Justice, Office of Justice Programs, along with the American University's School of Public Affairs and the Bureau of Justice Assistance released a publication titled "Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts."

The road map was prepared by a task force of experienced judges and practitioners. In the words of Chief Judge Robert M. Bell of the Court of Appeals of Maryland, "[t]he functioning of the court during a pandemic will be essential to preserving the rule of law." Nothing could be more true today, as their prescience has now come to the forefront.

Numerous considerations were presented in the road map. These included the identification of emerging issues of law, such as the scope and effect of quarantine orders on the human population, writs of habeas corpus, the suspension of search and seizure rights under the Fourth Amendment, and an uptick in criminal and family law disputes. These theoretical issues were pitted against the necessity for continued court operations throughout the United States.

Not surprisingly, among the numerous considerations presented in the road map was the notion of "remote proceedings." Specifically, the road map references the fact that "[c]onsideration of technological and other capabilities [is] needed to continue operations, including possible measures that will need to be instituted to limit face-to-face interactions and rules that will need to be drafted to provide for remote proceedings." Such alternatives included different sites for court proceedings, such as "other government buildings," public facilities such as theaters, warehouses or office buildings.

Furthermore, the road map contemplated the use of technology to assist in maintaining court operations:


Alternatives to a jury trial are available. For example, bench trials, mediations and arbitrations offer potentially successful avenues to resolve ongoing cases. Yet, assuming litigants or their counsel are unwilling to stipulate to any form of alternative dispute resolution, what becomes of a constitutionally permissible, if not obstinate, request for a jury trial in the face of a global pandemic?

If one assumes a prolonged shutdown of our local, state and federal courthouses, the internet may be more than just a convenience or a night for Netflix. Indeed, it may very well become a mechanism that the courts can rely upon to promote the continuity of our judicial system.

At first blush, it would seem almost obvious to conclude that the internet, and proposed e-courtroom venues, may be best suited to: (1) promote social distancing, while (2) ensuring the uninterrupted right to adjudicate our causes. With modern technology affording remote video capabilities such as Zoom, Skype or other similar applications, couldn't jury trials be transported into our living rooms or home offices? The notion is intriguing. But as far as technology has come, and in an age of increasing bandwidth, numerous questions exist.

Can all facets of a jury trial be reasonably conducted over the internet? Can jurors be reasonably confined to an e-jury room, where communications remain confidential? How can the court system ensure that an e-jury room is encrypted from hackers?

What procedures could be instituted to ensure minimum standards of fairness and due process to all parties? What would an available jury pool look like in the face of a pandemic? Moreover, would the "art" of the trial attorney be compromised, without in-person nuance and presentation?

To be sure, our local, state and federal lawmakers will be actively seeking to consider a new set of standards to accommodate these considerations in light of a global pandemic such as COVID-19. But how long will that take? And how contentious will the political process be to arrive at a uniform set of standards?

A Precarious Balance

In the absence of concrete answers, the familiar concept of a balancing test and the totality of the circumstances come to mind. If nothing else, they are elastic standards to ensure that new, promulgated norms are fair and reasonable.

During a pandemic, stockpiled goods and accessories are not the only items of value. Concepts such as accommodation, fairness and due process are also at a premium.

The preservation of human health must be evaluated meticulously, operating as a counterweight to jurisprudential interests. Just as litigants must work cooperatively during uncertain times, so too must the judiciary and our lawmakers balance public health concerns, the great tool of technology, and the rule of law.

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Justin Reade Sarno is counsel and Jayme C. Long is a partner at Dentons.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] U.S. Const., amend. VI.

[2] U.S. Const., amend. VII.

[3] Simler v. Conner , (1963) 372 U.S. 221, 222.

[4] Fed. R. Civ. P., 38.

[5] 42 U.S.C. § 300hh-1(b)(2)(B).

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