And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right

Abstract

The jury trial is the cornerstone of the criminal justice system in the United States. Amid the COVID-19 pandemic, however, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to an important constitutional right. In response, some courts employed video conference technology such as Zoom and WebEx to conduct arraignments, general court appearances, and some pretrial hearings. Six months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. At worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Yet, even with these legitimate concerns, courts should attempt to mitigate the risks and resume jury trials that are both in-person and compliant with social distancing policies to provide the criminal justice system with the best opportunity to ensure fair jury trials.