From the outset of the COVID-19 pandemic, the Texas Office of Court Administration (OCA) has monitored and tracked the impact of COVID-19 on our court systems. With the first confirmed case of COVID-19 in Texas on March 4, the OCA issued guidance to courts across the state to enter a state of readiness and prepare to respond to forthcoming adjustments as part of the effort to combat the spread of the virus. While some industries like retail and restaurants have taken more than their share of the negative impacts created by this virus and the measures put in place to slow and contain its spread, other industries have been better suited for a shift into the new normal of remote operation. Certain facets of our court system are conducive to this online shift, but significant logistical hurdles remain for certain components of our system. One such vital component is the jury trial. Although jury trials only occurred in 0.11% of cases last year, that small percentage still represents approximately 186 jury trials per week across the state.
The Texas Constitution provides that the right of trial by jury shall remain inviolate, that is, untouchable, locked in, guaranteed. So where does that leave us in the middle of a global pandemic, surrounded by social distancing and emergency quarantine orders? That is the question the OCA has been working to address from the very start. And after months of monitoring, analyzing, planning, and observation, the OCA recently released 11 recommendations regarding jury proceedings during the pandemic. Those recommendations are as follows:
- In-person jury proceedings should be limited to district and county courts, including statutory county courts and statutory probate courts, between October 1 and December 31.
- All courts should be permitted to conduct virtual jury proceedings, which are allowable under the current emergency order. However, in jailable criminal jury trials, virtual jury proceedings should only occur with appropriate waivers and consent of the defendant and prosecutor made on the record. In all other virtual jury trial proceedings, consent should not be required.
- The local administrative district judge for each county and the presiding judge of a municipal court should be required, after conferring with all judges in the county (local administrative district judges) or city (presiding judges of municipal courts) to submit a plan for conducting jury trials consistent with the following guidelines issued by OCA:
- Procedures for the summoning of jurors:
Courts should be required to include with summonses information on precautions that have been taken to protect the health and safety of prospective jurors and COVID questionnaires that elicit from prospective jurors information about their exposure or vulnerability to COVID-19. Courts should consider using juror questionnaires for voir dire to assist in shortening the length of voir dire or the number of venirepersons. Courts should be encouraged to liberally grant excuses or reschedule prospective jurors who have been potentially exposed, who are symptomatic, and who are vulnerable or live with someone vulnerable to COVID-19.
- Guidance on appropriate locations for jury proceedings:
Courts should be required to identify an appropriate location for conducting the various phases of a jury proceeding that enable adequate social distancing at all phases. Courts should detail how the court will ensure adequate security at the alternative location and that the court has followed the appropriate guidelines required of courthouses for in-person hearings.
- Requirements for screening:
Courts should be required to screen all court participants and observers for elevated temperatures and use a questionnaire to determine if the individual has recently had symptoms of COVID-19 or been exposed to COVID-19. Courts should ensure that participants in a trial who are incarcerated should be screened by the jail/prison prior to transport to the courtroom and any known exposure, symptoms, or COVID-19 positive test results within the past 30 days be reported to the judge presiding over the jury trial.
- Requirements for face coverings:
Courts should be required to ensure that all persons entering the common areas of a courthouse, including a courtroom or any other location being used to conduct a jury trial, wear a face covering at all times unless the person is an individual that is not recommended to wear a mask by the Centers for Disease Control or the Texas Department of State Health Services. Courts should be required to ensure that all court participants wear face coverings from jury qualification through the end of trial. Court participants who may need to lower their face mask to speak or for a short period of time should be required to wear a face shield. When speaking, a court should permit a court participant to lower his or her mask so long as a face shield is worn and the person speaking is immobile.
- Social distancing protocols:
Courts should be required to ensure that social distancing of all court participants and observers is maintained at all times during the jury proceeding, including during the trial and deliberation. Special attention should be paid by courts to ensure adequate social distancing and managed exits of individuals during breaks, especially when dismissing large groups of people for a break.
- Alternate Jurors:
Courts should be encouraged to consider selecting alternate jurors to permit the trial to continue in the event of a juror becoming ineligible to serve for a reason unrelated to that person’s exposure to or contraction of COVID-19.
- Arrangement of Courtroom:
Courts should be required to submit as part of the jury trial plan descriptions or drawings of the way in which courtroom participants (judge, parties/counsel, jurors, witnesses, court reporters, bailiffs, public) will be arranged in the courtroom. Special attention should be paid to placement of the witness and parties so that the jurors, judge, and attorneys can see the witness and parties during testimony. Special attention should also be paid to placement of evidence presentation displays so that jurors and witnesses can see the information being displayed. Courts should plan for spaces where a judge can have sidebar or private conversations with jurors and counsel.
- Microphone protection protocols:
Courts should be required to limit the shared use of microphones during the jury proceeding. If a microphone must be shared, courts should limit the passing of the microphone unless the microphone is cleaned between each user. In addition, the use of disposable microphone covers should be required to be placed on shared microphones and changed between each user.
- Exhibit/evidence management:
Courts should be required to limit the use of physical or paper exhibits/evidence where feasible or appropriate by converting the exhibit/evidence to a digital form. When physical or paper exhibits/evidence is required, courts should reduce the exchange of that exhibit/evidence to the number of persons necessary and should limit passing the exhibit/evidence to the individual members of the jury. If an exhibit/evidence is required to be transferred from person-to-person, single use gloves should be worn and discarded immediately after handling the exhibit/evidence.
During jury deliberations, courts should make efforts to provide the jury with access to digital exhibits/evidence that would normally be shared with the jury during deliberation. Where digital exhibits/evidence is not feasible, courts should consider limiting the transfer of the exhibits/evidence from juror-to-juror by spreading the exhibits/evidence on a table for inspection from the table in the jury deliberation room.
- Vulnerable witnesses:
Courts should be required to inquire whether witnesses to the proceedings have COVID-related issues. To the degree constitutionally permissible or with the consent of the parties, judges should permit witnesses to testify remotely via videoconference, especially if that witness has symptoms of or a recent positive test for COVID-19, has been recently exposed, or is vulnerable to contracting COVID-19.
- Food precautions:
Courts that provide food to jurors or other participants during a jury proceeding should be required to ensure individual food portions, such as individually boxed meals, are provided.
- Cleaning requirements:
Courts should be required to implement frequent cleaning protocols during the jury proceeding. Specifically, courts should ensure that shared spaces such as witness stands, seating in the gallery, and seating during qualification/voir dire are cleaned during transitions of those spaces. Courts should assign seats for members of the jury panel and selected jurors to reduce potential transmission and the need for more frequent cleaning.
- Procedures for the summoning of jurors:
- To assist with coordination of local resources and to manage capacity issues, each judge wishing to conduct a jury proceeding, including a statutory probate judge, should be required to gain approval for that trial by the local administrative district judge and regional presiding judge.
- The local administrative district judge overseeing the conduct of an in-person jury proceeding should be required to consult with the local health authority not more than 5 days prior to the jury proceeding to verify that local health conditions and plan precautions are appropriate for the trial to proceed.
- In all jury trial proceedings, courts should be required to consider motions or objections related to proceeding with the trial, if any, on the record at least seven days prior to the trial. If motions or objections related to proceeding with the trial are made less than seven days prior to the trial, courts should be required to consider those motions on the record as soon as practicable.
- Courts should establish communication protocols to ensure that no court participants have tested positive for COVID-19 within the last 30 days, have symptoms of COVID-19, or have been recently exposed to COVID-19.
- Courts wishing to conduct virtual jury trials should be required to ensure that all prospective jurors have access to technology with which to participate.
- OCA should be required to issue detailed guidance to assist courts wishing to conduct virtual jury trials and assist those courts in conducting the trials to the greatest degree possible.
- The regional presiding judges should be required to ensure that all courts, including the statutory probate courts, in each region are operating in full compliance with the Court’s Orders and the Guidance issued by OCA related to jury trial proceedings. Regional presiding judges should report to the office of the Chief Justice of the Supreme Court any jury trial proceedings that are being conducted in the regions—and the court in which the proceedings are being conducted—that are inconsistent with the Court’s Orders and the Guidance issued by OCA and assist each region’s local governments and courts to ensure that courts have the ability to conduct jury proceedings.
- OCA should coordinate with the regional presiding judges to monitor the jury trial proceedings in the state and the Department of State Health Services regarding the public health situation in the state and regions of the state and should make additional recommendations to the Supreme Court as necessary to ensure the health of all participants and observers of jury proceedings.