Since the beginning of business closures earlier this year due to the coronavirus pandemic, hundreds of thousands of cases have been filed in courts across the country. Most jurisdictions have been able to continue daily operations by working remotely via telephone and video conferencing. Some localities are even using virtual jury trials to tackle the significant backlog of criminal cases.

Recently, one town in Texas held a virtual criminal jury trial in its municipal court. Associate Judge Claire Petty defended the practice, explaining, "We want our citizens to have efficient case resolution when they exercise their right to [a] jury trial, so that meant we had to get creative." While creative problem solving during the pandemic has been the key to survival for many, jurisdictions must weigh the pros and cons of moving this centerpiece of American jurisprudence exclusively online.

In short, virtual juries are possible, and using technology to conduct the judicial process can help to limit COVID-19 exposure. However, courts must work to balance the benefits of a virtual jury with the potential pitfalls of failing to ensure a representative pool of eligible jurors. The possibilities must be closely examined to ensure equity for those accused of crimes and to preserve the integrity of the trial process.

Minimizing Exposure to COVID-19

While the wheels of justice must continue to turn, the health and safety of jurors, court administrators, and defendants must be prioritized. Traditionally, the first step in the process of selecting a jury is to issue summonses to individuals in the community who are eligible to serve. Hundreds of these calls to serve are mailed every time a trial is scheduled. Due to the pandemic, this process has been paused for months in nearly every state, and only recently have some localities started to plan in-person jury trials once again.

Specifically, prospective jurors started receiving summonses for jury duty in Orange and Osceola Counties in Florida. Last month, in Orange County, 225 summonses were distributed. Usually, the jury assembly room inside the Orange County courthouse holds about 350 prospective jurors; the county plans for a fraction of that capacity—60 to 100 people—to participate in jury selection.

While courthouses are planning to take some precautions to protect jurors from the coronavirus, this mass gathering of people has the potential to be a super-spreader event, especially as coronavirus cases continue to rise in the state. What's more, a recently empaneled grand jury in Orange County disbanded, then subsequently re-empaneled, after some of its members left due to the coronavirus.

One way to avoid courthouses becoming super-spreader sites is for localities to adopt a hybrid virtual and in-person jury selection process. For instance, a large number of eligible jurors could be vetted over the telephone or through online conferencing platforms like Zoom before being selected as jurors and entering the courtroom. This method is not only beneficial in curtailing the spread of the virus but also can ensure that the jurors are present to witness the important intangibles of serving on a jury—like being able to see the full picture of the courtroom and how judges, attorneys, and witnesses present themselves in the space.

Selecting a Representative Jury

Coronavirus has restricted access in more ways than one. When considering a virtual jury trial, courts should discuss how access to the internet might impact or restrict the jury pool and how that could directly lead to increased bias during jury selection.

When it comes to jury selection, a "jury of peers" is chosen by randomly summoning eligible citizens for the jury pool. Then, this group of prospective jurors decreases during the jury selection process called voir dire until the smaller group comprising the jury is empaneled. A jury should be a representative cross-section of the community.

However, combatting biases in jury selection is continuous. Established case law aims to ensure juries are representative. Specifically, the Supreme Court ruled in Batson v. Kentucky that purposeful racial discrimination was contrary to the goals of selecting an equitable arbitrative jury.

Access to the internet has become more important for working and learning from home this year, and  access disparities in communities of color have never been more apparent. According to demographic research, “racial minorities, older adults, rural residents, and those with lower levels of education and income are less likely to have broadband service at home.” Without uniform access to broadband in a particular community, selecting a representative jury to participate in trials virtually is nearly impossible.

Again, using a hybrid model that includes both out-of-courtroom screenings and proper in-house precautionary measures would limit selection bias and keep everyone safe while providing defendants with their right to a trial by jury. Leveraging technology can help support a fair administration of justice, but creative solutions will continue to be necessary as we brace for a new year with an ongoing pandemic.