On December 12, 2019, a small group in Wuhan, China, began experiencing elevated fever and shortness of breath. From that small local population, a global pandemic has raged, and the latest spike in the Omicron strain has affected holiday plans for families around the globe. As the world crosses the two-year mark with the novel coronavirus (COVID-19), globally there have been over 270 million cases and over 5 million confirmed deaths, and the numbers continue to climb. To prevent and slow the rates of infection and transmission, effective vaccinations have been developed by multiple companies (Pfizer, Moderna, and Johnson & Johnson) and are approved for use by both the World Health Organization and the Food & Drug Administration. The COVID-19 vaccines, and now booster shots, have been made available to populations in the United States for ages five and older. Just around the corner, the COVID-19 vaccine will be available in pill form. (Update: The FDA approved the vaccine August 23, 2021.)
Throughout the world and within the United States, individuals have overwhelmingly accepted COVID-19 vaccinations. Over 56 percent of the population globally and 72 percent of Americans have received at least one dose of an approved COVID-19 vaccination. Over 60 percent of all Americans are fully vaccinated. As of this writing, over 8.52 billion doses of COVID-19 vaccine have been administered globally, with a current daily rate of over 36 million doses.
Vaccine mandates have been in effect in the United States since the early twentieth century, notably after pandemic bouts with both smallpox and the Spanish flu. People have generally accepted vaccine mandates, and case law has cemented the authority of the U.S. government to mandate vaccinations to bolster the health, safety, and welfare of the community. In 1905, Supreme Court Justice John Marshall Harlan wrote that requiring a vaccination does not violate the Fourteenth Amendment and noted that the police power of the state is valid to protect public safety when enacted through reasonable regulations:
It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.
Jacobson v. Massachusetts, 197 U.S. 11, 11–12 (1905).
Nearly 20 years later, the Supreme Court affirmed the Jacobson decision in the landmark case of Zuct v. King. Justice Louis Brandeis penned the majority opinion, which upheld a law mandating that children would not be allowed to attend school without first obtaining necessary vaccinations. Zuct v. King, 260 U.S. 174 (1922).
Although an overwhelming majority of Americans have participated in COVID-19 vaccinations, nearly 90 million people remain unvaccinated throughout the country. That figure represents over a quarter of the population and just under 3 out of every 10 individuals.
Within the legal system, courts in the United States and abroad have been required to address the COVID-19 pandemic in recent months to remain operational. Measures have included virtual hearings such as on Zoom, social distancing, mask mandates, limited attendance, and temperature scans. To remain live and in person, some courts are requiring both court staff and participants in trials to be vaccinated. However, not all courts have adopted the same COVID-19 requirements, and there have been multiple different rulings. The topic will no doubt be hotly debated for quite some time as the current virus infection figures indicate COVID-19 will not be going away anytime soon.
The choice to be vaccinated or remain unvaccinated is as heated and polarizing a topic as any other discussions at holiday family gatherings. One’s choice of either receiving vaccinations and boosters or intentionally remaining unvaccinated may reasonably lead to several inferences into one’s likely held social beliefs and political leanings. For example, the Pew Research Center has noted people who sourced news on COVID-19 from former president Trump are likely to be in the unvaccinated category. While early surveys have pointed to racial factors in vaccination rates, the disparity rates have narrowed substantially as the pandemic drags on. In fact, the largest divides on vaccination rates are not drawn on lines of income, gender, or race, but rather political party affiliations. Current studies have affirmed that a gap of more than 30 points in vaccination remains among Republicans and Democrats. While both plaintiff and defense counsel typically seek vaccination status from potential jury members, getting the answer is not always straightforward.
As courts struggle to remain open with in-person trials, an interesting question to both the legal community and, poignantly, those summoned for jury service is the effect of vaccination status on their ability to fulfill their civic duty of jury participation. Specifically, a current hot topic among courts and legal scholars is whether an individual’s right to refuse vaccination against the COVID-19 virus would be a valid cause for jury exclusion. Opinions are split and the case law is unsettled.
The vaccination question may be initially posed by the court in preselection questionnaires to potential jurors or posited during the voir dire process. While either defense or plaintiff counsel may want to know the answer to the vaccination status question, ultimately it is the judge who has the final say on counsel’s ability to ask this question and on whether a negative answer supports removal for cause. There has not been consistency among the courts about whether to allow this line of questioning. Many judges believe vaccination status to be irrelevant, while others agree it may directly affect the safety of the court and jury.
A minority of courts in the United States are not requiring vaccination to serve on a jury of one’s peers. For instance, Judge Dan Aaron Polster in the National Prescription Opiate multidistrict litigation (No. 1:17-MD-2804) reversed an earlier case ruling to hold the “Court will not automatically disqualify potential jurors who are not vaccinated.” It is worth noting the plaintiffs in the opioids MDL filed a response stating they did not oppose the defendants’ motion for reconsideration and to allow unvaccinated jurors in the jury pool. The inclusion of unvaccinated jurors is not, however, a definitive approach throughout other jurisdictions, and the answer to the vaccination question is far from set in stone.
In contrast, a majority of courts have held that jurors are required to be vaccinated to serve on a jury and a potential juror’s vaccination status can be inquired into during voir dire. For example, Mississippi’s Northern District issued an order in May 2021 to require the jury administrator to inquire into prospective jurors’ vaccination status even earlier in the jury selection process. The U.S. District Court for the District of New Jersey has issued Standing Order 2021-08 to allow consensual parties to move for an all-vaccinated jury.
The U.S. District Court for the District of Oregon noted in a September 2021 order that the “Court intends to require that everyone who appears in the courtroom for trial (including parties, witnesses, counsel, and jurors) are fully vaccinated against COVID-19 at the time of trial (and will allow any unvaccinated witnesses to testify via video), which the Court understands may impact the trial date.” Beneron v. Simic, No. 3:19-cv-01653-SB, 2021 WL 4464176 (D. Or. Sept. 2021).
At least two other judges have required vaccination for jurors. In September of 2021, a Brooklyn judge required an all-vaccinated jury in a murder and extortion case against Wilbert Bryant and Passim Elder. United States v. Elder et al., No. 18-CR-92, 2021 WL 4137533 (E.D.N.Y.). In California, the judge presiding in the Theranos fraud trial against Elizabeth Holmes also required that jurors be vaccinated. United States v. Holmes et al., No. 18-CR-00258-EJD (N.D. Cal.). Unfortunately, even the vaccine mandate could not keep the virus from affecting the trial schedule in the Theranos matter. Just days after the vaccination requirement was issued, the trial was halted when a juror was potentially exposed to COVID-19 over a holiday weekend.
The trend to allow the exclusion of unvaccinated jurors has continued. In October of 2021, Judge Elizabeth A. Wolford in the Western District of New York held that unvaccinated individuals would be excused from the jury pool in the fraud and money-laundering case of United States v. Moses, No. 6:19-CR-06074, 2021 WL 4739789. And again, in a decision from mid-December 2021 out of the Southern District of New York, Judge Valerie Caproni held that all unvaccinated jurors would be excluded for cause. Joffe v. Spalding, No. 17-CV-3392-VEC, 2021 WL 5864427. Judge Caproni noted in her opinion that vaccines are now highly effective and a great protection against “infection, hospitalization and death from COVID-19.” Judge Caproni also spelled out a list of reasons that having unvaccinated jurors may impact and disrupt a trial, such as unvaccinated jurors having a higher risk of becoming infected with COVID-19 and vaccinated jurors potentially feeling unsafe or uncomfortable around unvaccinated jurors.
To make things even more confusing for litigants, there are even splits in the same judicial district on vaccination requirements for jury members. For example, conflicting decisions have been handed down from the federal court in Brooklyn, New York. While vaccination was required by Judge William Kuntz in the Bryant and Elder trials, Judge Ann Donnelly in the R. Kelly sex trafficking trial did not ask questions of vaccination status during jury selection. And in the trial of Brendan Hunt for intending to murder a member of Congress, Judge Pamela Chen “allowed jurors irrespective of vaccination status.”
Judge Caproni also considered whether the exclusion of unvaccinated jurors affects the requirement regarding the random selection of jurors from a cross-section of the community, which is a constitutional requirement under the Sixth Amendment and a requirement in the Jury Selection and Service Act of 1968 (JSSA). “The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.” Berghuis v. Smith, 559 U.S. 314, 319 (2010). Under the JSSA, “all litigants in Federal Courts entitled to trial by jury shall have the right to . . . juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861. A test called the Duren test is applied to identify whether juries represent a cross-section of the community. See Duren v. Missouri, 439 U.S. 357 (1979).
Under Duren, a moving party is required to show:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.
Id. at 364.
Only upon a showing of all three prongs will the burden shift for the non-moving party to show that reaching the fair cross-section would not be compatible with a significant state interest.
Recently, in Joffe v. Spalding and United States v. Moses, the courts examined the cross-section test and held that unvaccinated individuals are, in fact, not part of such a group to be afforded mandatory representation on a jury as they are not part of a distinctive group. The general requirements for this “distinctive” prong were laid down in United States v. Guzman, 337 F. Supp. 140 (S.D.N.Y. 1972). Under Guzman, a group must have a definite composition for it to be recognized as “distinct.”
That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, the group must have cohesion. There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group, and which cannot be adequately represented if the group is excluded from the jury selection process. Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved. That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace.
Id. at 143.
Courts have held few groups in fact to be “distinctive.” A “distinctive” group for fair cross-section purposes typically points to groups that see themselves as distinct from other groups, are viewed by others as a distinct group, and hold values not necessarily held by other groups. “Distinctive” groups are defined by immutable characteristics, as opposed to political leanings and group associations. While the Supreme Court has never articulated a definition of the term, some groups have been held “distinctive.” “Distinct” groups include gender, race, and ethnicity. These groups have been recognized as “distinct” under both Sixth Amendment and Equal Protection Clause criteria.
The Joffe case saw Judge Caproni hold that there could be a plethora of reasons for a person to choose to remain unvaccinated beyond political affiliation, including
religious objections; fear of medical allergies or side effects; concern that the vaccine may affect fertility; concern the vaccine may have unknown adverse side effects in the future; uncertainty about the location of available vaccine clinics; procrastination; fear of needles; suspicion of Big Pharma; and concern that the side effects may cause the person to miss work and not be paid.
Joffe, No. 17-CV-3392, slip op. at 9 (S.D.N.Y. Dec. 10, 2021).
Judge Wolford noted in Moses that the “membership in the unvaccinated group changes on a daily basis.” Moses, No. 6:19-CR-06074 (W.D.N.Y.). Simply having “shared attitudes” does not qualify a group as “distinctive” for protection status purposes. For example, many citizens in a jury wheel holding membership in the National Rifle Association would not be provided a representation requirement. United States v. Salamone, 800 F.2d 1216, 1219 (3d Cir. 1986). Judge Caproni, citing Lockhart v. McCree, 476 U.S. 162, 175 (1986), stated the unvaccinated population are not a distinctively identifiable group “on the basis of some immutable characteristic.” Joffe, No. 17-CV-3392, slip op. at 9–10.
Tackling another prong of the Duren test, Judge Caproni held that unvaccinated individuals also would fail on the third prong as there is no showing of systematic exclusion. To demonstrate systematic exclusion, it is necessary that the “underrepresentation is due to the system of jury selection itself, rather than external forces.” United States v. Rioux, 97 F.3d 648, 658 (2d Cir. 1996). Judge Caproni held that the COVID-19 pandemic and difficulty of conducting in-person trials are external forces and do not meet the Duren test.
In short, a majority of courts are currently allowing the exclusion of jurors for cause arising from their unvaccinated status, reasoning that other jurors should have a right to feel comfortable and safe as they work for prolonged periods in small spaces with others. That said, the case law is fluid and has not settled. For now, if you happen to be counsel in a court where the judge does not allow the striking of unvaccinated individuals from the pool for cause and the judge will not allow the question to be asked directly during voir dire, you may need to find other creative ways to find the answer in a indirect way, such as asking, “Are there any reasons you would have problems cooperating and communicating closely with other jurors?” As the pandemic crosses into the third year since that small group in Wuhan experienced shortness of breath, it is safe to say that, just as it has in the everyday non-legal world, COVID-19 will continue to play a role in courtrooms and parties’ motions for the foreseeable future.
