By Daniel Siegal

Law360 (June 10, 2020, 9:50 PM EDT) -- Federal judges that move to restart jury trials during the coronavirus pandemic will have to work within their existing budgets and make it a priority to reassure a thinner pool of potential jurors of their safety, according to a report released Wednesday by a federal judiciary task force.

The 16-page report compiled by the U.S. Courts' COVID-19 Judicial Task Force's jury subgroup says that courts must start to resume jury trials during the pandemic, but that each court has to determine when the time is right to do so.

U.S. District Judge Robert J. Conrad Jr. of the Western District of North Carolina, who chairs the group, said in a Wednesday statement that the report attempted to find ways for courts to walk the tightrope they are currently facing after jury trials were delayed by the pandemic.

"Our report strives to balance the need to resume jury trials with a court's responsibility and obligation to protect the health and safety of jurors, other trial participants, court employees, and the public," he said.

The report contains "suggestions only," but encourages federal courts to take its slew of ideas and adapt them to fit their own jury pools and local situations.

"There is no one-size-fits-all approach, and not all of the suggestions will be necessary, practical, or feasible in all districts," the report says. "At its core, this report offers guidance to help individual courts consider the multitude of issues that will impact reconvening jury trials in our federal courts."

The key suggestions tabbed by the group include reassuring jurors by proactively sending out information about how the court is making the jury trial process safe and making special sections of court websites and dedicated phone numbers to field juror concerns.

Once in the courthouse, jurors should travel along pre-planned routes that have social distancing markers, and those markers should be placed near restrooms and elevators as well, according to the report.

Courthouses should use their largest courtrooms and possibly multiple rooms with video connections to allow for the proper social distancing, and do deep cleaning of all juror-occupied areas after every session, according to the report.

The report leaves up to individual courts to decide whether they should have jurors, attorneys and others wear masks during trial, and if so, when and how.

The group also suggests having jurors complete a COVID-19 questionnaire to screen for people who may have been exposed to the virus or might have health conditions that make them more vulnerable to the virus.

Courts should also expect more jurors than usual to ask to be excused for health reasons, fewer potential jurors than usual to answer their summonses and more jurors to ask to be excused during a trial than usual.

"An effective contact-tracing program will likely cause loss of jurors due to a required, immediate self-quarantine after exposure to COVID-19," the report states. "Take into consideration the possibility of losing jurors during trial when considering the number of alternate jurors to seat in criminal cases and overall number of jurors to seat in civil cases."

Courts should track statistics on excusals and deferrals, and monitor whether they're having an impact on minority representation on juries, according to report.

The report also highlighted that "available funding is a consideration," and that courts should expect to relaunch jury trials within their existing local, decentralized budgets.

The additional costs that could accrue includes the cost of providing personal protective equipment, or PPE, to potential jurors, attorneys, witnesses, judges and the public, and courts will have to charge the costs to their local expenses for now, according to the report.

The report cautions that allowing jurors to bring their own PPE raises concerns such as a higher risk of contamination, jurors forgetting or refusing to bring PPE and jurors wearing masks that contain political "or otherwise controversial or inciteful" statements or designs.

The report also mentions that a clearinghouse of sample court orders and procedures as well as photos of social distance-accommodating courtrooms will be maintained on JNET, the judiciary's internal network.

The group includes federal judges from California, Colorado, Kentucky, North Carolina, Alabama, New York, New Jersey, Illinois, Florida and Hawaii, as well as a clerk from Massachusetts, a public defender from Washington, D.C., a circuit executive from the Ninth Circuit and G. Zach Terwilliger, the U.S. attorney for the Eastern District of Virginia.

--Editing by Michael Watanabe.

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