By John Mervilde, Meils Thompson Dietz & Berish
Recently, the Marion County courts and other Indiana counties began issuing their "return to operations" plans. (See here for the Marion County plan). Of particular interest to both civil and criminal litigators are the procedures for resuming trials by jury. The logistical issues presented by jury trials are obvious. Where will courts gather dozens of prospective jurors who may be nervous about jury duty under the best of circumstances, let alone a pandemic? How will jurors deliberate while maintaining social distance? The Marion County plan notes that the courts have "identified large open spaces to process jurors."
A recent article from Clark County discusses what is expected to be that county's first post-COVID jury trial and provides a bit more detail. Jury selection will be held at a school. The jury will deliberate in the courtroom itself. Because the jury will be using the courtroom as a de facto jury room, the public will be barred from attending the trial, although audio from the trial will be livestreamed.
The Marion County plan creates several new categories of jurors who must be granted exemptions on request, including health care workers, law enforcement officers and other first responders, those 65 or older and those with a number of health conditions (including lung disease, moderate to severe asthma, a variety of heart conditions and severe obesity). Courts also are directed to defer any prospective jurors who are caring for someone ill, caring for children, recently back to work, or facing financial hardship if forced to miss work. Many, perhaps even most prospective jurors, could fit into one or more of these categories. Summoning enough prospective jurors to fill out a jury may be the greatest logistical challenge.
While courts and attorneys can solve the logistical challenges, how jurors will respond to these unusual circumstances is unknowable. How will they respond to attorneys in masks? Will there be a notable orientation toward plaintiffs or defendants in a civil case, or toward or away from the state in criminal prosecutions? Will jurors be offended by counsel and parties sitting near to each other in the courtroom? Will jurors be tempted to rush through deliberations? Even the most experienced trial litigators will be facing unknown terrain when jury trials finally resume.
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