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Jury box

From wearing face masks in public to homeschooling our kids, we all find ourselves doing things we could not have imagined just three months ago. For the two of us, that includes spending far more time than usual outside the courtroom. Since late March, jury trials have ground to a halt in the wake of the pandemic. Now, as states tentatively reopen, courts across the country are grappling with unprecedented challenges to resuming jury trials safely.

This article explores how one of the most socially interactive legal processes—jury selection—can conform to social-distancing guidelines, along with ways the pandemic itself might influence the jury pool and affect deliberations.

Jury Selection

Jury selection as we know it is by no means a socially distant process. Courts typically summon hundreds of prospective jurors at once into small courtrooms and pack them into rows, where they are asked to pass out forms and share pens and clipboards. They are asked questions by multiple lawyers, and maybe even the judge, all in close proximity. They are trapped inside, sometimes for an entire day. This practice, which once seemed so normal, now makes us cringe. How can courts continue to conduct jury selection in a post-pandemic world?

One possible solution is to whittle down the number of jurors with mail-in or online questionnaires. A preliminary hardship questionnaire would be used in advance of individual voir dire to prescreen those who cannot serve due to recognized hardships, such as financial difficulties or child care responsibilities. In a second phase, a case-specific questionnaire developed by the parties would be accessible to jurors to further screen for bias and could even form the basis of the parties’ cause and peremptory challenges. If desired, the judge or counsel could conduct additional inquiry with individual jurors via telephone or videoconference.

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