On March 16, 2020, the coronavirus (COVID-19) pandemic first began to affect court proceedings, when a New York judge declared a mistrial in the case of a doctor accused of sexual abuse after the defense attorney arrived at court with COVID-like symptoms. Later the same day, New York’s Office of Court Administration issued an indefinite moratorium on trials and grand jury proceedings. By then, judges, court personnel, jurors, and litigants had contracted – and in some cases, died – from the virus.
Since then, courts and legal scholars around the country have debated how to follow the legal process during the pandemic (e.g., Nir & Musial, 2022). Many of these debates have centered around parts of the sixth and seventh amendments:
“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.”
And “the right of trial by jury shall be preserved.”
While there are several topics of discussion that are important (e.g., does postponing trials due to the pandemic violate the right to a speedy trial? Does having virtual trials on zoom violate the right to a public trial and/or to be confronted with the witnesses against him?), the focus of this blog post is on whether the representativeness of juries has changed as a result of the pandemic and how this may affect jury selection.
Jury representativeness is not a new problem: minority racial groups have been and still are underrepresented in juries (Rose, Casarez, & Gutierrez, 2018), retirees are much more likely to serve than young people, individuals from low-income backgrounds are far less likely to serve on juries, and individuals who strongly support law enforcement are more likely to be included than people who are less so (Balko, 2021). However, since the pandemic began, these issues have become increasingly prominent.
In mid-2020 (prior to the development of the COVID-19 vaccines), the research found that 74 percent of survey respondents said that they would be concerned about their health if summoned for jury duty and would be anxious about being in close proximity with other potential jurors (Durbin Research and Consulting, 2020). Separate research conducted by GBAO Strategies during June 8-11 2020 asked 1000 participants about their comfort levels for a range of situations: on a scale of 1 to 10, respondents gave “going to a friend or family member’s home” an average rating of 7.5, “going to a polling place to vote” as 6.7, but “serving on a jury if selected” as only 5.1 (National Center for State Courts, 2020). The implication of this is that if a subset of potential jurors is self-selecting themselves out of jury summons, the likelihood of a representative jury is going to be diminished.
However, this subset of potential jurors is not a random smattering of individuals across the entire population. In fact, a majority (55 percent) of survey respondents reported having at least one pandemic-related obstacle (being the primary caregiver to an elderly family member, being unable to secure childcare, and having someone in their household with an underlying health condition) as a reason to not report for jury service if called. Importantly, all of these obstacles are seen more frequently in marginalized groups – individuals who belong to racial minorities and/or are from low-income backgrounds (National Center for State Courts, 2020). The majority of respondents also reported that they would feel comfortable reporting to the courthouse for jury duty if regular COVID-19 testing was occurring (76 percent), temperatures were checked (74 percent), social distancing was enforced (70 percent), and everyone was wearing a mask (70 percent). Forty-four percent of respondents also said they would be more comfortable with remote jury service than in person (23 percent), with 32 percent saying no difference.
During 2021, these obstacles have remained: at least 1 in 5 respondents indicated that they would have problems getting to the courthouse due to childcare (22 percent), a handicap/disability (23 percent), transportation issues (30 percent), taking time off work or school (41 percent), the distance to travel (49 percent), and public health concerns (56 percent). However, the impact of these obstacles is far from consistent across the population. With the exception of public health concerns, all of these obstacles disproportionately affect communities of color and younger Americans, the largest effects of which are regarding the issues of child care and being able to take time off from work or school (National Center for State Courts, 2021). These results were also replicated in a report commissioned by the Washington State Administrative Office of the Courts: over 82 percent of respondents reported “responsibility-related” barriers, such as work/employer issues and financial hardship, as obstacles for not reporting for jury service (Collins & Gialopsos, 2021).
In addition, vaccine status can now have an effect on the representativeness of juries as well. For instance, individuals who cannot get vaccinated may wish to be excused from jury service due to their increased risk of contracting the virus. As a result, a cross-section of the population will not be represented. Similarly, vaccinated people (including parents of children too young for a vaccine) may ask to be excused to avoid contracting the virus from unvaccinated jurors (Colby & Kline, 2021).
Conversely, individuals who refuse to get vaccinated may not be represented if a court-imposed vaccine mandate is in place. However, the implementation of these mandates varies state by state. For example, in a trial pending in Ohio, U.S. District Judge Dan Aaron Polster cited safety concerns when issuing an order requiring that any juror serving on the case be vaccinated. Over half of the jury pool could have been excused on these grounds, as data from Ohio’s Department of Health reported that only 42.6% of the state’s population was fully vaccinated at the time. The defendants successfully challenged the order, citing demographic data suggesting that excluding unvaccinated individuals would violate the “fair cross-section of the community” standard for jury trials, highlighting key differences between the statewide vaccinated and unvaccinated populations along gender, racial, age, income, education level, geographic and political lines. Therefore, the remaining pool of eligible (vaccinated) jurors would be highly unlikely to reflect the community as a whole. Judge Polster agreed, granting the defendants’ motion for reconsideration and rescinding his order requiring jurors to be vaccinated. Alternatively, in a California trial, U.S. District Judge Edward Davila dismissed nine members of the jury pool because they were unvaccinated. Both the prosecution and the defense supported the court’s decision to excuse unvaccinated jurors and have not challenged the decision. Given that vaccine status quite closely follows political lines, this can have an effect on the trial outcome, as conservative juries may be more likely to rule in favor of the defendant (Balko, 2021).
With regards to solutions to the lack of representativeness in juries post-COVID, it is recommended that the most common obstacles to jury service are removed: financial compensation can be improved, childcare can be provided for or reimbursed, allow potential jurors to have a voice in all scheduling related decisions, and employer-related improvements, involving increasing pay, time-off, and support (Collins & Gialopsos, 2021). It is also suggested that courts keep online/virtual components and/or services after the pandemic ends, although it should be noted that virtual courtrooms can encroach upon the defendant’s rights (Nir & Musial, 2022).
In summary, juries have always been unrepresentative of the communities they are based in, and the COVID-19 pandemic has only exacerbated this fact. Minority groups are less likely to respond to jury service due to a number of obstacles including having to care for a child or elderly family member, and/or because they cannot afford the time off of work. Courts should look to increase the payment for jury duty and to provide/reimburse care for jury members’ dependents.
Balko, R. (2021, December 3). The pandemic might be producing juries that are more likely to convict. The Washington Post.
Colby, E. P., & Kline, E. (2021, September 28). The Impact of Vaccination Status on Jury Pools. Retrieved from Skadden Insights: https://www.skadden.com/insights/publications/2021/09/quarterly-insights/the-impact-of-vaccination-status-on-jury-pools
Collins, P. A., & Gialopsos, B. M. (2021). An exploration of barriers to responding to jury summons. Seattle: Washington State Administrative Office of the Court.
Durbin Research and Consulting. (2020). COVID-19’s Next Victim? The Rights of the Accused. Retrieved from NACDL: https://www.nacdl.org/Article/COVID19sNextVictim202005-PD
National Center for State Courts. (2020). State of the State Courts in a (Post) Pandemic World. Retrieved from State of the State Courts: https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/2020-covid19-poll-presentation.pdf
National Center for State Courts. (2021, October). State of the State Courts: 2021 Poll. Retrieved from State of the State Courts: https://www.ncsc.org/__data/assets/pdf_file/0020/70580/SSC_2021_Presentation.pdf
Nir, E., & Musial, J. (2022). Zooming In: Courtrooms and Defendants’ Rights during the COVID-19 Pandemic. Social & Legal Studies, 1-21.
Rose, M. R., Casarez, R. S., & Gutierrez, C. M. (2018). Jury pool underrepresentation in the modern era: Evidence from federal courts. Journal of Empirical Legal Studies, 378-405.