WHO MIGHT NOT BE ON YOUR JURY IN THE “NEW NORMAL” TRIAL?

As our country has started to reopen, we have heard a lot about the “new normal”. It appears inevitable that social distancing and mask wearing will be a part of our public events for a long time. Courts across the country have started to adopt new normal practices to reopen the justice system. Early in the pandemic, a New York juror participated in the deliberation via video while others were in person. In Portland, Oregon, criminal trials have resumed with restrictions on numbers and space. In Texas, a Summary Trial in a civil matter was held over Zoom. Trials everywhere will inevitably follow the same or similar practices. The question is, will these new rules impact who shows up for jury duty? Time will tell. But I suspect, depending on what rules are implemented, at least five categories of people could be underrepresented.

Mask naysayers

We live in a divided nation. Discussions about everything from politics to the food we eat can lead to a hotbed of contentious debates. The COVID-19 pandemic is clearly not exempt from such division. As the months move on, the factions on the topic are becoming more visible. Perhaps the most controversial issue is the recommendation to wear a mask. If you have dared to follow the online discussions about mask wearing, you have heard arguments over the legitimacy of science, conspiracy theories, trust in government, following the rules, respect for others, and protection of personal freedom and rights. Many of those who have chosen to wear masks are vocal and steadfast in their choice. This is not commentary on that choice, just an observation that has led me to suspect that if courts mandate masks, there are a certain number of jurors who will not serve. I have a good friend who refuses to wear a mask. I asked her, “If you were called to jury duty would you report?” Her response, “I have never compromised my beliefs for anyone, and I would not even for a Court of Law.” Whether or not someone who refuses to wear a mask fits your ideal or high-risk juror profile, their absence clearly impacts the make-up of the jury pool.

Older jurors

The statics show that 80% of those most severely impacted by COVID-19 are over 65. As we return to the new normal, people in this age category may be hesitant to venture out, taking even more precautions than the rules require. They may prioritize some activities over others and choose to forego events that put them at increased risk. Jury duty may be one of those. This may lead to an underrepresentation of older jurors, especially in jurisdictions where age is a criterion for a hardship excuse.

Those who have suffered significant financial hardship

Requesting removal from jury duty for financial hardship is common, especially in longer trials. These requests come from prospective jurors who actually show up for jury duty at the courthouse. They may request to be excused, but they report, nonetheless. I don’t think it’s a stretch to predict that the number of hardship requests will increase dramatically in the next year. But I may go out on a limb to posit that those who have suffered the most economic damage may defer service or not even respond to a jury summons. Priorities for those who have lost a job or who are just returning to work after three months of unemployment are likely to shift. The belief that jury duty is part of being a good citizen could take a backseat when someone is in survivor mode. This could lead to an imbalance in the socioeconomic status of potential jurors.

People who are too frightened to go out

There are some people who have been too afraid to leave their homes, even for the weekly jaunt to the grocery store. This is probably a small contingency of the population, but as the country starts to re-open, the number of people reluctant to engage in pre-COVID-19 activities may increase. Those who may have felt safe enough to go for a walk or to the pharmacy may not feel comfortable sitting in a courtroom amongst dozens of other people. These people could span all demographics, but certainly represent a mind-set of jurors who would otherwise be a part of your jury pool.

Those without the technical means

It is unclear if or how many courts will attempt “Trial by Zoom,” but doing so will require potential jurors to have the necessary technical equipment (computer, high-speed internet, webcam, headphones, etc.). While the lockdowns have forced many more Americans to become equipped in this regard, there is still an important population of otherwise jury-eligible citizens who would be excluded from a Zoom trial, unless the courts provide the technology to those jurors. To address this concern, the Online Courtroom Project, an advisory task force on the psychological, behavioral, communication, and technical elements of online courtroom operations for criminal and civil matters, is actively working with courts and the legal profession to improve the efficacy of online operations in trials. Their work will be an important part of helping courts explore the online avenue.

These are just five ways in which our jury pools might look different in the “new normal.” There are a variety of COVID-19 influenced attitudes that might also change the make-up of who ends up on our juries. For example, support for small business, praise for healthcare workers, trust/distrust in government, views of scientific research, and a priority of what is important in our lives are potential hot-button issues that could lead to an increased number of cause challenges. Attorneys, Jury Consultants, and Social Science Researchers will be carefully watching this as trials resume. Stay tuned.