March 11, 2021 Articles

What’s It Like to Try a Case to a Jury During the COVID-19 Pandemic?

Short answer: like flying a plane, without an instrument rating, at night.

By Melissa Ho and Ed Novak

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Trying a case during COVID requires adjustments, but with planning and preparation, and with the help of court staff, it can be successful.

Trying a case during COVID requires adjustments, but with planning and preparation, and with the help of court staff, it can be successful.

AndreyPopov/iStock

Leslie Merritt Jr. was charged on September 18, 2015, with 16 criminal counts related to the shooting of four vehicles on Interstate 10 as they passed near downtown Phoenix. The investigation was conducted by the Arizona Department of Public Safety (the state police agency, best known as DPS). Merritt was held in the county jail for seven months, then released by county prosecutors after they received inconclusive test results of the bullets found in the four vehicles. Shortly after Merritt’s release, he filed claims against the State, several high-ranking DPS officials, Maricopa County, and the Maricopa County attorney.

On October 28, 2020, jury selection began in his civil suit in federal court in Phoenix, on 2 counts of the original 10-count civil complaint: false arrest and false imprisonment. Maricopa County had settled years earlier, the individual defendants had been dismissed, and the State was the sole defendant remaining. We represented the State of Arizona and the Department of Public Safety.

COVID Courtroom Setup

The U.S. District Court for the District of Arizona, like federal courts around the nation, has COVID restrictions in place limiting the timing of trials, the number of attorneys and members of the public who can be in attendance, and, critically, how jury selection takes place. At the time of the trial, only two of the many courtrooms in the federal building were COVID-approved. What did that mean? Well, for one thing, it meant that the trials that had been put on hold in mid-March would be prioritized. Criminal trials with speedy trial issues would go first and then civil trials, depending on age and other factors.

We were told that the two COVID courtrooms were sanitized each night, and for the first couple of days, you could smell disinfectant when you walked in before the morning session began. Either we became immune to the smell or the disinfectant was less strong, but by the third day, no odors were apparent. We crossed our fingers and hoped for the best.

Jury Selection During COVID

A jury questionnaire was sent to 150 people. The response rate was 90 percent, which was down from the normal 97 percent rate. The questionnaire contained several questions related to the health of the prospective juror and spouse or partner. After reviewing the returns, the court recommended releasing about 40 prospective jurors, leaving a much smaller pool from which we would select 8 jurors after all strikes.  

Challenge Number 1

How do you question a prospective juror when the juror is wearing a mask? Watch the eyes. After all, that is about all you can see of the juror’s face. Each juror had to leave his or her seat, walk to a microphone, and respond to any questions. So body language played a small role. We found most jurors to be more reluctant than usual to speak. The only exception was a fellow attorney. (He was struck from the panel.) Most of the questions were follow-ups on medical issues raised in the questionnaire but not sufficient to cause the judge to remove the person on the first pass. Jury selection took less than one hour. The questionnaire was enormously helpful to the lawyers and the court.

The courtroom we used for trial was standard size for the Phoenix courthouse, but for social distancing purposes, only two persons were allowed to sit at the counsel table close to the jury and three at the defense table. That put the plaintiff in the first spectator row and the general counsel for DPS in a similar spot on the opposite side. Seating in the galley was limited to a total of 10 spectators. To accommodate overflow, the court allowed a telephone call-in line for listeners. We had no knowledge of who might be listening to the testimony. With TV coverage, the camera is there to remind you that people may be watching. The phone line gave no hint to the extent of coverage.

Scientific Evidence and Electronic Exhibits Only

The case involved ballistic evidence or, more precisely, toolmark and firearm evidence. A key question was whether the Department of Public Safety’s forensic scientist had correctly identified a Hi-Point C9 9-millimeter handgun based on the bullet fragments evidence. About five months after filing criminal charges against Mr. Merritt, the County had a private forensic scientist examine the bullet fragments. He agreed that they all came from the same Hi-Point C9 handgun, but he could not identify the specific gun. As a result, the County dismissed the criminal charges, seven months after arresting Mr. Merritt.

The jury got an intense but brief education in toolmark and firearm evidence, including photos of the test-fire bullets and the evidence bullets as they appeared under the comparison microscope. The challenge was not only to keep the trial compelling but also to ensure that the attorneys and witnesses could educate the jury on the science involved in the case through the use of electronic exhibits and without the ability for most witnesses to touch or handle any physical exhibits. The photographic exhibits and electronic presentation of the evidence seemed to work well.

Witness Preparation and Presentation

Challenge Number 2

Could the jury hear and understand the witness? During our trial, the witness was the only person allowed to take off his or her mask. The jury could see the witness through the Plexiglas shield that extended around three sides of the witness stand, but the witness could not see any more of the jurors than their eyes. Most witnesses spoke to the jurors, but a few were distracted enough by the circumstances and responded only to the lawyer asking questions. This included the private forensic scientist, who probably had more time in the witness stand than all the other witnesses combined. Another challenge was the need to clean the witness stand in between every witness, which included cleaning the microphone, the chair, and the table on which the computer screen and microphone sat. Because the foam covering on the tip of the microphone could not be effectively cleaned between witnesses, it was removed at the start. Removing the foam tip increased the microphone’s sensitivity, magnifying the sound and effect of each witness breathing, sputtering, or inadvertently bumping the mic. Invariably, when first speaking, each witness sounded like someone using a microphone for the first time—adjusting voice volume and distance from the microphone and controlling hand gestures. Fortunately, the courtroom deputy came up with a novel solution. She cut a finger tip off a sanitary glove and put it on the microphone after each witness. Problem solved.

Witnesses Live on Video

Challenge Number 3

Video witnesses could see only the lawyer asking questions and not the jury. Each side had at least one witness who could not be present in the courtroom. Either the witness lived out of state and did not want to travel, or the witness lived in state but was immunocompromised or lived with someone who was immunocompromised. While the technology was flawless, there is no substitute for having the witness in the courtroom watching the jurors for reactions and interacting more personally. Watching video testimony is like watching late night TV—most people will start multitasking quickly. Finally, and this may be obvious, the remote witness needs to have relevant exhibits close and accessible.

All exhibits with one exception were electronic. That exception was a Dunlop run-flat tire, which was shot during one of the four incidents. It was sealed in plastic and sanitized. Both sides did have to resort to the court’s overhead projection system (ELMO) on occasion, which required the courtroom deputy to switch from the computer-operated video screen to the ELMO. Planning ahead for these instances is important because no matter how gifted you are with the ELMO, it looks awkward and amateurish in comparison to Trial Director or similar programs that have zooming and highlighting capabilities.

Each side had asked for two weeks to put on its case. The court trimmed that to 22 hours per side, which was later cut further to 19 hours, to ensure the trial would end on a Friday to allow for a new jury trial to begin the next Monday.

Clarity of Speech and Picking Up the Tempo

Challenge Number 4

How to get your slow-talking, soft-spoken experts to speak up and speed up. Experts tend to perform best when given the time to explain how they came to the opinion they proffer. Getting an expert through direct examination in 20–30 minutes means rushing through the expert’s education and qualifications, because although you can get his or her CV into evidence, there is no guarantee the jury will actually look at it during deliberations. You then have to get to the expert’s opinion and shore it up as best you can in the time remaining. And if you saved enough time, you can use your expert to cast doubt on the credibility or objectivity of the opposing expert’s opinion. Forget about having the expert leave the stand to demonstrate or draw on the flip chart. In a COVID courtroom, that will not happen.

Challenge Number 5

Making sure everyone—you, the judge, and jury—can hear what is being said. Not all of us speak distinctly except when concentrating on doing so. Not one juror asked to use the hearing aids available in the courtroom. That was concerning because it was clear that not all the jurors could hear every word from the witnesses, especially when a witness would back away from the microphone after breathing on it, bumping it, or causing some other audible disturbance or feedback. With the additional challenge of wearing masks, some lawyers spoke too softly—hard to believe, we know—and another’s voice sounded muffled. One day, one of the lawyers showed up with no voice, having strained it somehow over the intervening weekend. You should do your prep sessions with your witnesses and counsel all wearing masks. Get in the habit of speaking slowly and clearly during practice and hope that it carries over into the trial.

Sidebar conferences presented similar issues. The judge would let only one lawyer from each side up to the sidebar. The court reporter was out of sight, so if she relied on lip reading to aid her aural skills, she was out of luck. Sidebars inevitably resulted in two lawyers and the judge being within three feet of each other, as social distancing is nearly impossible for hushed sidebar discussions.

Opening and Closing with COVID Restrictions

Challenge Number 6

How to present opening statement and closing argument. Because it was sometimes difficult to hear the lawyers, the best way to communicate was visually. Showing the jury transcript quotes is usually persuasive, but when hearing the lawyer is difficult, the transcript quotes are essential. The other side in our case used a flip chart. During opening statements, the lawyer wrote on the flip chart, which meant he had his back to the jury while talking. He also had to move the microphone, which had a short cord, resulting in several less graceful movements. During closing, he had prepared the flip chart but still turned his back and talked while pointing to the chart. Then the flip chart fell to the floor. In the end, an electronic slide presentation would have been more effective.

Using a transcript in closing makes the lawyer more of a presenter allowing the jury to focus on the testimony showing on the screen. The setup in the courtroom enabled this style. There was a monitor between every other juror. So they looked down at the screen while the lawyer talked. No need to see the lawyer or the flip chart next to or behind the lawyer. If you are worried about the cost of daily transcripts, you shouldn’t be. They are worth every cent paid and every hour of lost sleep—we got ours between 2:00 am and 3:00 am each morning.

Our jury of eight was split into two jury rooms during breaks. Again, due to the room size and COVID restrictions, no jury room could hold eight. The jurors did have lunch brought to them, but they ate in those two separate groups of four. We did not see jurors talking or walking together in the hallways. When it came time to deliberate, the courtroom was sealed and the jurors were allowed to discuss the case in the large courtroom, with the exhibits. They were to keep their masks on, which may have made lengthy discussions less comfortable and less likely. Our jury was out for only 42 minutes.

Our trial ended on November 6, 2020. The day before it ended, the Ninth Circuit issued a general order reducing trials once again because the COVID numbers had increased, highlighting the constantly changing landscape for litigators during this pandemic. Trying a case during COVID requires many adjustments, but with a lot of planning and preparation, and with the help of court staff, it can be completed effectively in a safe manner and with minimal inconvenience to jurors.

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Melissa Ho and Ed Novak are shareholders with Polsinelli in Phoenix, Arizona.


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