Law360 (October 6, 2020, 3:04 PM EDT) --
|J. Richard Caldwell Jr.|
The pandemic brought trials to a complete halt. Courts, including the Florida Supreme Court, recognize that criminal trials present daunting challenges to any attempt at remote conduct. Besides basic concerns about protecting the health of jurors, court personnel, judges and lawyers, constitutional issues are presented.
The right to a fair and impartial jury, to confront witnesses, and to a complete understanding of the nature of any charges, among others, all create substantial obstacles to any attempt to proceed with criminal jury trials in any context other than a traditional courtroom. The Centers for Disease Control and Prevention now indicates that the virus may be able to travel further, and remain viable for a longer period of time, than previously thought, thus possibly calling into question the effectiveness of people staying 6 feet apart and other measures.
Contrasting with this cautious approach to criminal cases, on May 21, the Florida Supreme Court established a pilot program in five Florida counties to test the feasibility of conducting civil jury trials in the pandemic environment. The court has also promulgated guidelines for a phased resumption of trial proceedings.
Current Efforts Toward Resumption of Trials
Some courts are proceeding aggressively to institute the resumption of civil trials. The chief judge of the 17th Judicial Circuit of Florida, Judge Jack Tuter, has stated, "There is no doubt in my mind that jury trials can be conducted via a video platform."
Judge Lisa Munyon of the Ninth Judicial Circuit Court of Florida, the chair of the Florida Courts Technology Commission, has echoed Judge Tuter's view to some extent, commenting that even in live trials, "when jurors go home, a judge instructs them not to talk about the case with anyone, including family members. ... I don't think this would really be any different because we're still relying on jurors to follow our instructions."
In addition, courts in numerous judicial circuits of Florida promulgated administrative orders providing for resumption of jury trials at the end of September. And the 11th Judicial Circuit has published a comprehensive set of guidelines for use during the pandemic.
Indeed, Florida courts have conducted at least two jury trials in recent weeks.
In the Fourth Judicial Circuit, Duval County, a personal injury case, Griffin v. Albanese Enterprises Inc., was tried fully remotely, resulting in a substantial verdict for the plaintiff. In the 11th Judicial Circuit, Miami-Dade County, the court conducted jury selection remotely in an insurance case involving property damage, People's Trust Insurance Co. v. Yusem Corchero, but the remainder of the trial took place in person in the courthouse.
And the first reported fully remote criminal jury trial was conducted in Travis County, Texas, traffic court. Federal courts, including the U.S. District Court for the Middle District of Florida, are readying themselves for commencement of civil trials.
Indeed, the Middle District of Florida recently conducted the jury trial of a criminal case, U.S. v. Lasane, under conditions designed to ameliorate pandemic dangers. The defendant filed a petition for mandamus in the U.S. Court of Appeals for the Eleventh Circuit, seeking to delay the trial because of COVID-19 dangers.
U.S. District Judge Roy B. Dalton Jr. filed a lengthy response to the petition, detailing the precautions utilized by the Middle District of Florida (and other district courts) to avoid contagion during trial, and citing the need for continued court operations in the interests of justice. While the Eleventh Circuit denied the petition because an abuse of discretion had not been sufficiently shown, and the trial thus proceeded, it acknowledged that Lasane's arguments had "some force."
The sense of urgency in restarting our system of jury trials in both civil and criminal matters is understandable. After all, the very reason for courts' existence is the resolution of cases. Two of the first 10 amendments to the U.S. Constitution specifically address jury trials, and the jury system has become the bedrock of the judicial branch of our national and state governments.
For example, Article I, Section 16(a), of the Florida Constitution guarantees an accused in a criminal matter the right to an impartial jury. Further, Article 1, Section 22, provides that in all cases, including civil cases, the right to trial by jury shall remain inviolate. Article 21 provides that courts shall be open for redress of injury, and that justice shall be administered without "sale, denial or delay."
The U.S. Constitution also provides for the right of trial by jury. And the U.S. Supreme Court has recognized the importance of that right:
As the judicial system attempts to recover from the effects of the COVID-19 crisis, basic constitutional rights in civil as well as criminal cases must be protected in the haste to resume trial proceedings. There have been a number of recent discussions concerning constitutional protections in criminal matters.
In contrast, there has been relatively little attention paid to constitutional implications involved in rushing to restart the civil side of the trial dockets. The U.S. Constitution and its counterparts in several states provide important protections for parties to civil cases, which must not be overlooked while recovering from the pandemic.
In the first place, the issue of whether a constitutionally adequate jury can be selected by remote proceeding must be considered. By definition, only those with internet access can qualify for remote service, and while those users constitute a significant majority of the U.S. population, not everyone is included.
The day is long past in the U.S. in which education, property or other characteristics are requisites for jury service, but pushing toward remote trial reinstates similar implications to those prior requisites.
For instance, what of potential jurors who do not know how to use the required technology, or those who cannot afford or otherwise lack access to the internet? Or what of those who have no place to be alone to observe the proceedings? Excluding these members of society from jury service is exactly the type of class distinction and discrimination condemned by the U.S. Supreme Court.
Remote Jury Selection
Setting that issue aside, the process of jury selection is always a key element in any trial, civil or criminal, and is a particular point of concern in the context of current coronavirus restrictions. In its recent white paper, "Guidance for Conducting Jury Trials During the COVID-19 Pandemic," the American Board of Trial Advocates points out that there is no constitutional, statutory or rule requirement that voir dire be conducted in person in a courtroom-type setting, as opposed to a remote proceeding.
While this may be correct, recent experience has shown that technology has not uniformly been able to foster adequate voir dire procedures in remote proceedings. For example, in Griffin v. Albanese Enterprises, jury selection took two days to complete, for a one-day trial, and connection problems necessitated the removal of one juror from the panel who had been selected. In Peoples Insurance Trust Co. v. Corchero, jury selection was described as "quite casual," with some venire members appearing to be doing other activities during the proceeding.
The example that perhaps raises the most concern occurred recently in a California trial, in the case of Wilgenbusch v. American Biltrite Inc. There, venire members were observed during the remote jury selection process reclining on a bed and possibly asleep, distracted with children and disappearing from the screen, working out on an exercise machine, or using computers for other activities.
Objections by defense counsel could not be heard, initially, because lead counsel for one of the defendants was barred from attending the voir dire process at the courthouse, and later because counsel could not be taken off mute because of problems with the remote setup.
In an asbestos trial in another California court, practical and constitutional concerns about remote jury selection were presented to the California First District Court of Appeal in Honeywell International Inc. v. Superior Court for the County of Alameda by a petition for writ of mandate or prohibition.
There, the petition by defendant Honeywell set forth many of the same constitutional and practical concerns that were experienced in Wilgenbusch, but was filed before the commencement of trial. The petition was denied the following day by the appellate court in an order that acknowledged the seriousness of the defendant's points, while holding that those issues could not be reached on mandamus or prohibition, but must await a plenary appeal.
In Florida, as well as most other jurisdictions, adequate voir dire is a fundamental right of parties in a civil case. As the Florida and especially California examples demonstrate, it is extremely difficult, if not impossible, for a trial judge to adequately control the jury selection process remotely. Issues with the confidentiality of virtual chat rooms where counsel can discuss jury selection with colleagues, and the literal impossibility of ensuring that prospective jurors adhere to court instructions, all present barriers to effective and sufficient voir dire.
In remote proceedings, will counsel for the parties be able to visualize every member of the venire panel during jury questioning? Any experienced trial lawyer can attest that it is necessary to closely monitor jury reactions to developments, in addition to any verbal responses made by prospective jurors during voir dire. A jury is made up of individuals, certainly, but how those individuals are likely to interact with and relate to one another forms an integral part of any trial lawyer's assessment of a prospective jury.
This consideration goes beyond the jury selection process itself. Many times, a jury's individual and collective reaction to a development at trial can and does influence counsel's appreciation and evaluation of the trial progress. Plaintiffs as well as defendants are ill-served by counsel's inability to observe jurors' body language and other reactions during trial. In any remote proceeding, a lawyer's perception of the jury's — and judge's — understanding of and receptiveness to evidence or argument must necessarily be dramatically handicapped.
These handicaps extend to evidentiary matters. In Peoples' Trust Insurance Co. v. Corchero, all witnesses testified while wearing protective masks. Concealing the features of a testifying witness markedly detracts from the ability of jurors as well as counsel to truly weigh the credibility of that witness, even in the course of live, in-court proceedings. This becomes even more of a problem if the witness is presented remotely.
In the latter instance, the jury is deprived of the opportunity to observe the witness's demeanor and to accurately weigh her or his ability to accurately recall the events about which the testimony revolves.
Florida Standard Jury Instruction 202.2 for civil trials forbids jurors from consulting sources outside the evidence — including information from the internet — and court instructions in the process of arriving at a decision. This principle is difficult enough to enforce during in-court trial procedures, and the difficulties will necessarily be compounded in any remote setting. It requires little imagination to envision a juror who is already using the internet to attend trial, to simply enter a Google search term on the subject of the case, even while the proceeding is ongoing.
Remote jury trials will render the presentation of physical evidence much more difficult, if not essentially impossible in many situations. In a product liability trial, for example, close examination of machine components, glass fragments, threads or small pieces of fabric, or other items by a remote jury cannot be accomplished. In some cases, that may be of minimal importance; in others, the inability of experts and counsel to have the jury perceive the actual evidence for themselves will be crucial.
At what point do issues with jury qualifications and presentation of evidence, along with the ability of the parties and counsel to observe the jury during the proceeding, cease to become merely tactical considerations and become constitutionally significant? Put another way, when do such problems amount to the denial of a fair trial by an impartial jury?
The difficulty in answering those questions stems from the fact that the current COVID-19 pandemic, and the necessary restrictions on personal movement and interaction, are unprecedented. As mentioned above, all courts must attempt to resume operations, notably the trial of cases, as quickly as this may be accomplished.
The task of the judiciary, and especially judges who are responsible for the operations of trial courts, is unenviable. Our civil trial system has been effectively immobilized for months, and the pressure to do something, almost anything, to get the court systems moving again mounts unceasingly.
Many court systems simply lack the physical or financial capability to modify courtrooms for safe, in-person jury trials in the pandemic environment. Thus, remote trials are offered as a way to reembark upon the resolution of cases without waiting on the pandemic to run its course.
However, the court system must avoid the temptation to adopt procedures in response to the crisis in ways that run counter to basic rights of litigants in civil cases — the cure being worse than the disease. As discussed, the restrictions necessarily imposed by attempts to conduct jury selection procedures remotely present a grave risk of denying litigants the constitutional right of a fair and impartial jury.
The right of confrontation of witnesses would seem to be imperiled by requiring masks during testimony. Even without masks, the demeanor of a witness cannot be fairly evaluated simply by seeing her or his image from the neck up. Presentation of physical evidence will necessarily be hindered or made impossible in some cases.
Such considerations go beyond mere issues of tactics or inconvenience, at least in many cases. There may be cases that are suitable for remote presentation by the parties, which may well agree to submit the matter to a civil jury in this manner even given the problems that have been encountered as described above.
Other cases, however, will present problems rising to constitutional levels if forced to proceed to trial in a remote context. The procedures outlined in the response to the Lasane mandamus petition seem to reflect a comprehensive approach to in-person court safety, but the effectiveness of these procedures has not had time to be adequately evaluated. Counsel and judges should carefully consider the rights of litigants before making decisions on the basis of expediency.
J. Richard Caldwell Jr. is of counsel, and Christian H. Tiblier and Kathleen Shea are associates, at Rumberger Kirk & Caldwell PA.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 See, Tim Elfrink, Ben Guarino, & Chris Mooney, CDC Reverse itself and says guidelines it posted on coronavirus airborne transmission were wrong, The Washington Post, (Sept. 21, 2020), https://www.washingtonpost.com/nation/2020/09/21/cdc-covid-aerosols-airborne-guidelines/?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most.
 Admin. Order AOSC20-31, Fla. (May 21, 2020).
 Press Release, Fla., Aug. 12, 2020 available at https://www.floridasupremecourt.org/content/download/642532/7298064/08-12-2020-Phases-August-12-Amendments.pdf.
 See Chief Judge Jack Tuter, Remote Jury Selection During a Pandemic, Fla. Bar News and J., Aug. 4, 2020.
 Admin. Order AOSC20-33, Fla. (May 22, 2020).
 Monivette Cordeiro, Trial by Zoom? Orange, Osceola courts delay test of virtual juries – for now, Orlando Sentinel, (June 29, 2020), https://www.orlandosentinel.com/coronavirus/os-ne-coronavirus-orange-osceola-courts-remote-trials-20200629-xjgb2gg6jvco5iotky6bmrrpey-story.html.
 See, e.g., Covid-19 Advisory 36 (11th Cir. Ct. Fla., Sept. 23, 2020) (allowing in person jury selection and trial proceedings following strict protocols); Admin. Order 1-57.1 (10th Cir. Ct. Fla. Sept. 22, 2020) (reopening courts for in-person proceedings having completed 30 days in Phase 2); Admin. Order 11.37 (8th Cir. Cir. Ct. Fla. Aug. 24, 2020) (recognizing that all counties within the 8th Circuit have completed 30 days in Phase 2 and allowing for jury proceedings to resume); Admin. Order 2020-13 (2nd Cir. Ct. Fla. Aug. 24, 2020) (allowing for counties in the 2nd Circuit to move to Phase 2 and begin limited in-person attendance at court proceedings with approval of the chief judge).
 Circuit Civil Division Eleventh Judicial Circuit Florida, Pandemic Handbook: A Guide for Litigants and Attorneys (July 1, 2020), available at https://www.jud11.flcourts.org/docs/Circuit%20Civil%20Handbook%20for%20Attorney%20and%20Litigants%20REV%2007012020%20(2).pdf.
 Griffin v. Albanese Enterprises Inc. , No. 16-2019-CA-1555 (Fla. 4th Cir. Ct. Aug. 10, 2020). The case was tried on damages only, as a default had been entered against the defendant Albanese, and there was no appearance for defendant at trial. The proceedings can be viewed at the following link: https://pages.cvn.com/duval-county-florida-remote-trial-program.
 People's Trust Insurance Co. v. Yusem Corchero, 2019-CA-018363, (Fla. 11th Cir. Ct. July 14, 2020). This was a nonbinding proceeding.
 Justin Jouvenal, Justice by Zoom: Frozen video, a cat – and finally a verdict, The Washington Post, Aug.12, 2020, https://www.washingtonpost.com/local/legal-issues/justice-by-zoom-frozen-video-a-cat--and-finally-a-verdict/2020/08/12/3e073c56-dbd3-11ea-8051-d5f887d73381_story.html.
 See Notice to Parties, D.E. 136, Cushman v. City of Largo, Case 8:19-cv-00496-TPB-SPF (M.D. Fla. Aug. 20, 2020). See also COVID-19 Judicial Task Force, Conducting Jury Trials and Governing Grand Juries During the Pandemic, United States Courts, June 4, 2020, https://www.uscourts.gov/sites/default/files/combined_jury_trial_post_covid_doc_6.10.20.pdf; As Courts Restore Operations, COVID-19 Creates a New Normal, United States Courts, Aug. 20, 2020, https://www.uscourts.gov/news/2020/08/20/courts-restore-operations-covid-19-creates-new-normal?utm_campaign=usc%20news&utm_medium=email&utm_source=govdelivery.
 United States v. Lasane, No. 6:19-cr-241-RBD-DCI-1 (M.D. Fla. Sept. 2020).
 Petition for Writ of Mandamus, In re: Lasane, No. 20-13171-D (11th Cir. Aug. 25, 2020). For convenience, the writ is available at the following link: https://www.courtlistener.com/recap/gov.uscourts.flmd.371068/gov.uscourts.flmd.371068.71.1.pdf. Notably, the petition did not specifically address constitutional concerns, but stressed the possible effect on defendant's health and that the requested delay was only for some 60 days. Id.
 District Court's Address to the Petition for Writ of Mandamus, In re: Lasane, No. 20-13171-D (11th Cir. Sept.1, 2020). For convenience, the District Court's Address is available at the following link: https://www.courtlistener.com/recap/gov.uscourts.flmd.371068/gov.uscourts.flmd.371068.83.0.pdf. Exhibits to the address can be found at the following link: https://www.courtlistener.com/docket/16466906/united-states-v-lasane/. The address also referred to other cases in U.S. district courts either being tried or ready for immediate trial. Id. at Ex. I; see also United States v. Kelly, No. 6:17,cr-291DCI (M.D. Fla. Sept. 1, 2020).
 Order Denying Petition for Writ of Mandamus, In re: Lasane, No. 20-13171-D (11th Cir. Sept.3, 2020). That order is available at: https://www.courtlistener.com/recap/gov.uscourts.flmd.371068/gov.uscourts.flmd.371068.87.0.pdf.
 Interestingly, the word "impartial" is omitted from Section 22. However, it is clear that the impartiality requirement extends to civil parties: "While Section 22 does not expressly grant civil litigants the right of trial by an impartial jury, we believe that anything less than an impartial jury is the functional equivalent of no jury at all." City of Miami v. Cornett , 463 So 2d 399 (Fla. 3d DCA 1985).
 Thiel v. Southern Pacific Co. , 328 U.S. 217, 220 (1946); see also, Powers v. Ohio , 499 U.S. 400, 406 (1991); State v. Silva , 259 So. 2d 153 (1972).
 See, e.g., Ann E. Marimow and Justin Jouvenal, Courts dramatically rethink the jury trial in the era of the coronavirus, The Washington Post, July 31, 2020, https://www.washingtonpost.com/local/legal-issues/jury-trials-coronavirus/2020/07/31/8c1fd784-c604-11ea-8ffe-372be8d82298_story.html.
 J. Clement, Internet usage in the United States — Statistics & Facts, Statista, Aug. 31, 2020, https://www.statista.com/topics/2237/internet-usage-in-the-united-states/.
 Thiel, 328 U.S. at 224.
 ABOTA Covid-19 Task Force, Guidance for Conducting Civil Jury Trials During the COVID-19 Pandemic 8 (American Board of Trial Advocates, 2020) available at https://www.abota.org/Online/Resources/Guidance_for_Conducting_Civil_Jury_Trials_During_the_COVID-19_Pandemic.aspx.
 See note 8, supra.
 Jonathan Brown and Kevin Klagge, A Masked Trial: Florida's First "Remote" Jury, JD Supra, Aug. 25, 2020, https://www.jdsupra.com/legalnews/a-masked-trial-florida-s-first-remote-35616/.
 Motion for Mistrial, Wilgenbusch v. Amer. Biltrite Inc., No. RG19029791 (Cal. Super. Ct. Alameda Cty. July16, 2020).
 Id. at 4-5.
 Id. at 4.
 No. A160463 (Cal. Dist. Ct. App. July 14, 2020).
 City of Live Oak v. Townsend , 567 So. 2d 926, 928 (Fla. 1st DCA 1990); Cohn v. Julien , 574 So. 2d 1202, 1203 (Fla. 3d DCA 1991).
 In 1918-19, an influenza pandemic killed millions worldwide, and in the United States imposed dramatic restrictions on all public gatherings, including court functions. Of course, a century and more ago there was no possibility of any remote function of any kind beyond telegraph or telephone, so that experience is of little value in attempting to evaluate ways to maintain our legal system.
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