By Jessica Cicchini, Marion County Prosecutor's Office
Trying a jury trial has always come with unique challenges. Is it the day your client will lose his or her freedom? Is it the day your victim will not get justice for what was done? Will you do something to mess up your chances? Did you prepare enough? Have you thought about everything you need to? Jury trials move quickly and trial attorneys have to adapt on a second’s notice. These quick decisions are stressful in the best of circumstances. But now, we are in, historically, one of the worst circumstances. In addition to the normal jury worries, now you have to worry about your health. Am I being safe enough? Will my mask protect me? How often will I get to sanitize and wash my hands during the fast-paced trial? Will trying this case endanger my health or that of my family? Will just being in a courtroom make me a conduit for the virus to harm someone I don’t even know?
Stressful does not begin to explain it. I was one of the lucky (unlucky?) to try a jury trial early during the COVID-19 pandemic. As trials become more and more prevalent, we will all be in the same boat soon enough. I put my head together with some other COVID jury trial-experienced attorneys and made this list of things to think of, that may make the trial a little more predictable, or maybe, at least less scary.
Mask up and sanitize. When I realized I was going to try my first COVID jury, I immediately made sure that I had N95 masks, to ensure that I would be safe. I was lucky enough to do the trial run at traffic court and it opened my eyes to some things, so I could adapt before trial started. The N95 masks, while safe, made communicating a challenge. I am immensely impressed by and grateful for our medical professionals who wear these masks daily to keep us safe. For me, they were hot, more uncomfortable than other masks, and made me fear that the jurors would not hear me. I did a test run with many masks – cloth, doubled up, disposable. For me, I was most comfortable, physically, in the disposable mask and using the other COVID precautions in place, I was more mentally comfortable. Take some time to think about what mask you are most comfortable wearing, because from my experience, COVID or not, once the trial starts, things move quickly and wardrobe changes are not readily available. Bring extra masks. You will get uncomfortable and a fresh mask could go a long way.
Voir Dire. In my opinion, voir dire is the most important part of the trial. Will the jurors consider my theory? Will they be strong enough to stand their ground in the jury room? We never seem to have enough time to pick our jury: “Hey I’m here to see if you can find my client not guilty of murder, so in the next three minutes that I have with each of you, tell me your true concerns and ability to deliberate.” As with everything, it’s harder with COVID. Courts are doing voir dire differently – both with time and physically. The venire can no longer sit all together in the jury box. They are in front of you, beside you, behind you – six feet away to several yards away. It’s more difficult ensure they can hear you, let alone build the much-needed rapport to walk through the trial together to hopefully the verdict you desire. Even getting enough potential jurors in the door to start the trial has been a challenge. Take the time to consider drafting a motion for more people to be summonsed for jury duty and a motion for additional time for voir dire. You may not get it, but processing what voir dire will look like can go a long way.
Jury has COVID on the mind? In the last year, I have probably spent more time focused on my surroundings – who is around me? How close people are to me? What PPE they are wearing? – than I have in my entire life. COVID-19 is scary and deadly. It’s normal to be on high alert, so too will your jurors. They are being summonsed to come to trial in the worst pandemic in most of our lifetimes. Not only will they be in a room with fellow jurors, court staff, parties and judge for, potentially, multiple days, they then have to go into a room with up to 11-13 people (depending how your court handles alternates). They must stay in that room until they make a decision . It is important to flesh out these concerns during voir dire. Will the juror be able to not focus on COVID-19 and its risks? Will a juror be tempted to just agree to a verdict to get out of that room? Take the time to think through these possibilities, while examining your case. You don’t have control of a lot of things during trial, but being cognizant of the potential worries of the jurors cannot hurt.
Side bars. Gone are the days where the attorneys and the judge would huddle as close as possible over the bench, whispering about the issue, trying to avoid the jury hearing. Or maybe not, courts are doing things different and hopefully COVID will someday be a thing of the past. But can you believe how much we all used to breath on each other?! Now, when you have a side bar, likely everyone will be wearing a mask and there may be a plastic shield in front of the bench. You may have to stand six feet apart from your co-counsel and everyone else up there. You still don’t want the jury to hear, or at least one side doesn’t, so how do you pull this off? Take some time to think about how you would prefer side bars to be conducted and try to have a pre-trial discussion with your judge about how to handle them. You may not like the answer, but at least you’ll know what to expect.
Well movement. Courts over the years have varied on the movement they have allowed in the well. I’m used to having free use of the well, except to approach the witness or judge. Now, some courts may require you to stand at a lectern for your entire presentation, voir dire, direct, cross, close, everything. It could be necessary to ensure proper social distancing. This could take some getting used to for those of us who have had freedom to move about and use the art of trial movement. Take some time to figure out what your judge prefers. If she/he requires a lectern, practice standing still. You may appreciate getting used to the awkward-to-some feeling of standing completely still while you advocate and beg the jury with your eyes (or words, sometimes) to return the verdict you want.
Exhibits. To avoid multiple people touching exhibits and potentially spreading germs or the virus, technology has stepped in to save the day on showing exhibits to opposing counsel, the witness, the judge and the jury. Technology is great, but it’s not without its disadvantages. In my trial, we had technology issues. Each participant had their own monitor – witness, defense, etc. – and the idea was that the person trying to admit the evidence would ask the bailiff to turn on the appropriate monitor. In contrast to the state walking up to the defense table and handing me the photos to look through, they had to be put on my screen by the bailiff. At that moment technology did not like us, and we waited about 10 minutes for the monitor to work before the state could show us the relatively benign photo they were trying to admit. While this does sound a little comical, it also could be detrimental – what if the parties disagree about an exhibit and during the argument and rather than going just to the judge’s monitor, there is a glitch and it is broadcast to the jury? It is much more complicated than just handing exhibits between parties. Take some time to get to know the technology system being used, if any. You’ll be happy when you (hopefully) can use it smoothly rather than fumble in front of the jury.
In-court identification. You’re in trial and identity of the suspect is at issue. Usually, the state would ask the witness – do you see the person who did x to you in the courtroom? The witness looks over to the defense table, with no obstructions between them and the defense table – points to the defendant and identifies them if they can. But now, the defendant is wearing a mask. A defense attorney’s dream! But really, how will you deal with the identification? Does the defendant, alone, take his mask off? Does the entire defense table? Does the whole room – just for a few seconds? I can’t think of a much more suggestive identification than a defendant being the only person in the room without a mask when he/she is identified. Take the time to think through this and talk to opposing counsel about it, especially when identity is an issue. You’ll know what to expect and will have a built-in time to make a record if you do not approve of the method chosen.
Courtroom logistics. As a defense attorney, it was supremely important to me to humanize my client to the jury, the court and the state. It is critical for the jury to see your client as a human being and not just the “defendant” that is described in the charging information. In my trial, defense and state tables faced each other and were perpendicular to the jury. My client was furthest away from the jury because a deputy needed to be nearby. The result – the jury never had to look my client in the face. How can a jury make a decision to convict when they’ve never truly seen the person? The same applies for state’s witnesses. If the witness is wearing a mask and is a significant distance away, how can the jury assess their credibility or connect with the witness? Also, because of occupancy caps, you may find yourself with only two seats for the public. That usually means a representative from the defendant’s family and one from the victim’s family – make sure your client/victim knows in advance that most will not be allowed in court.
Jurors’ view of evidence. Similar to viewing the defendant or witness, think about how the jurors will see the exhibits and hear the testimony of witnesses. The distance between the evidence and the jury has likely never been greater. As a trial attorney, I always watched the jurors’ faces during presentation of critical evidence – trying to see what they were thinking and how they were reacting. Now you should watch their faces to see if they are actually able to see and hear the evidence. Are they leaning forward? Squinting their eyes? Do they appear to be struggling to see the evidence? Make sure you know in advance how the court is arranging counsel tables, where TVs will be and where the witnesses will testify. In Marion County, restrictions on the amount of people in the room mean that many jurors sit in the gallery. Talk to your judge in advance to make sure the jury has the technology necessary to make a decision. You’ll be thankful if you notice just one juror is not able to see evidence critically important to your case and you can alert the court.
Jury view of attorney work product. Not only is the presentation of evidence on monitors, but we have been increasingly adapting to having our case preparation materials on our laptops during trial. Pay attention to where the jurors are positioned compared to the view of your computer. Don’t be afraid to get up and go make sure they can’t see your computer. Think about investing in a privacy screen for your monitor to keep sensitive materials away from prying eyes. Most of the discovery in a case will not come into trial, but even the items that don’t, may have influenced how you approach a particular issue. It is less than ideal for a juror to have a view of your screen. Their decision should be solely based on what is admitted and not what you may have up on your screen while you’re continually analyzing the case in your head. Take the time to look at the layout in your courtroom and where your computer is pointing. You will not only be protecting your client/case, but you’ll be protecting the integrity of the proceedings.
I am so happy that jury trials are recommencing and that precautions are being taken. Maybe my thoughts above will be helpful to you in your future trials and tribulations. But even if not, be safe!
A bonus thought: everyone is rusty – ask your attorney colleagues and friends to do a case review or practice voir dire, closing, cross, etc. Ask your non-attorney friends and family to listen to see if you are making any sense as a human, after being socially isolated for more than a year, or if you’re perpetually using your Zoom voice.
If you would like to submit contnet or write an article for the Criminal Justice Section, please email Kara Sikorski at firstname.lastname@example.org.
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