The jury trial is being lost during the pandemic

In America today, the traditional trial by jury, with its many due process protections, was already endangered. Across the U.S., nearly 95% of all felony convictions are obtained by plea bargain instead of trial. Now, the Coronavirus pandemic has further curtailed the number of jury trials, at least in person.

The Tennessee Supreme Court has issued a series of orders on the state of emergency that have suspended jury trials and most in-person legal proceedings until at least March 31, 2021. In the criminal justice system, the only in-person proceedings allowed at the moment are those necessary to protect the constitutional rights of criminal defendants, including:

  • Bond matters
  • Preliminary hearings for people who are detained
  • Plea bargains for people who are detained
  • Other matters specifically approved by the court

At the same time, the Supreme Court has ordered the state’s court system to continue operating, to the extent possible, using alternative hearing methods such as teleconferencing, videoconferencing, phone calls and emails. Rules requiring in-person contact have largely been suspended, allowing, for example, court documents to be filed under penalty of perjury instead of requiring a notary public.

Clearly, the court is taking its responsibilities seriously, but there are many issues at stake. According to a review by the American Bar Association’s ABA Journal, there are no uniform standards among U.S. courts on whether in-person proceedings should be allowed at all, including jury trials.

There are, however, serious constitutional issues at stake. Will video trials replace in-person trials during the pandemic? If so, will that process protect the accused’s rights?

Due process and other rights are at stake

Even with every effort to protect constitutional rights, there may be differences between live and video trials that rob the accused of those rights. For one thing, video trials may take longer to schedule because they require so many people to be available via videoconference. If trials are increasingly scheduled at far-off dates during the pandemic, the accused’s Sixth Amendment right to a speedy trial could be implicated.

Another issue is that video conferencing typically doesn’t allow for private communications between the accused and their attorneys. Ongoing communication and conference between the accused and the defense attorney is crucial to a fair trial. Foregoing it could mean the accused doesn’t receive effective assistance.

Furthermore, a video trial may not allow for the full and robust confrontation of witnesses by the defense. Critical information, such as the witness’s demeanor and facial expressions, may be lost. Indeed, the judge or jury’s ability to gauge the credibility of witnesses may be hindered.

When some types of evidence are presented, such as weapons, blood stains, clothing and other items, it may no longer be directly to the jury but electronically. How much difference would that make in the evaluation of the evidence?

Finally, if jury trials are to be considered at all during an active pandemic, the situation could materially affect how jurors are chosen. Many potential jurors may be excused if they are at high risk for complications. That could mean that older people, those with certain disabilities, and even members of some ethic groups would be all-but eliminated from jury service.

The accused have the right to a trial by a jury made up of a representative cross-section of society. Can that right be guaranteed during a pandemic?

Our criminal justice system is set up to operate in person. Eliminating the in-person character of the proceedings could have real implications for the rights of the accused. Yet refusing to hold jury trials at all may put pressure on the accused to plead guilty in order to move on with his or her life. It might even reduce the already vanishing jury trial to the point where it is no right at all.

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