On March 9, 2020, the Supreme Court of the State of New Jersey issued their first of many Omnibus Orders suspending new civil and criminal jury trials until further notice. Given the grave and early impact of COVID-19 on the State and the surrounding areas, NJ Courts took a brief recess. Within two weeks, the Superior Court was operating remotely. As judges, lawyers and court personnel quarantined in their homes, civil motion practice carried on via Zoom from guest rooms and basements, with children attending school and dogs barking in the background. On the whole, this program was a success, functioning more like the "new normal" than a temporary fix. However, the construct of the civil jury trial required extensive re-evaluation. In theory, the resumption of in-person trials is a more attractive option than conducting same on a virtual platform — few "technical difficulties," consistent with centuries of precedent, and congruent with well-established social norms. Yet the practical and logistical considerations of hosting attorneys, parties, court personnel and a jury of peers under the same roof amidst a pandemic raises public health and policy issues which have courts and members of the bar alike proceeding with caution in our current climate of mask-wearing and social distancing.
Many states and private businesses now require face coverings in nearly all indoor public places, as well as maintaining "social distancing" of six feet between individuals. Given the significant restrictions on everyday activities, it is no surprise that there have been Constitutional challenges to those restrictions. To date, the controlling precedent for challenges to emergency regulations is Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). Jacobson permits state officials to "enact quarantine laws and health laws of every description" and specifies that the Constitution does "not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint." (internal quotations omitted).
The United States Supreme Court specified in its first COVID-19 case that "[w]hen these officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary’ which lacks the background, competence and expertise to assess public health and is not accountable to the people." S. Bay United Pentecostal Church v. Newsom, 140 140 S. Ct. 1613, 1613 (2020).
In essence, as long as the emergency regulations have a "real or substantial relation to those objects" and are not "beyond all question, a plain, palpable invasion of rights secured [by the Constitution]", the courts will not "invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law." Jacobson at 38.
Although it is likely the legal challenges regarding emergency orders for mandatory masks will continue, it is prudent to anticipate that masks will be required as New Jersey Courts resume in-person sessions. This raises a number of further considerations that must be taken into account.
One consideration is whether a mask must be worn by everyone in a courtroom. In New Jersey, the Governor has issued multiple Executive Orders (122, 125, 135, 142, 152, 154, 155, 157, 163) requiring face masks be worn in indoor public spaces. Exceptions to these Executive Orders are embraced when wearing a mask would inhibit the individual’s health or safety (high-intensity aerobic activity or swimming), when the individual is under two years old, and when an individual could not feasibly wear a mask (such as while eating). These exceptions, however, fail to expressly address a host of issues associated with jury trials.
Face masks raise important concerns about hindering witness testimony and the jury’s ability to evaluate witness credibility based on facial expressions. The importance of witness expressions in trials has long been recognized, including by Former Chief Justice William Rehnquist. "[T]he trial judge has now had an opportunity to observe the demeanor of witness A, and has noticed that he fidgets when answering critical questions, his eyes shift from the floor to the ceiling, and he manifests all other indicia traditionally attributed to perjurers." A face mask, even while serving an important public health purpose, jeopardizes the jury’s ability to factor in these expressions when making its own determinations about witness credibility.
These concerns are heightened in criminal trials due to the constitutional guarantees of the 6th Amendment to confront witnesses. San Francisco Superior Court Judge Vedica Puri recently made a pretrial ruling that witnesses will testify wearing transparent masks. "Puri said protecting the public from a deadly virus is also the court’s primary concern, and that the Sixth Amendment’s confrontation clause must be interpreted in that context. I was a trial lawyer. I’m very sympathetic to the notion of reading faces — jurors’ faces, witnesses’ faces, everyone’s faces," Puri said. "But we are in a pandemic and that takes precedence." Following Judge Puri’s logic, it is reasonable to expect that transparent panels, face shields and face masks will become commonplace inside New Jersey courtrooms.
Jury duty also raises unique challenges that require extensive changes to the former jury procedures in order to comply with face mask and social distancing requirements. New Jersey recently unveiled its plan to resume in-person jury trials, which includes an entirely redesigned jury selection process. New Jersey recognized the urgency in moving forward with both criminal and civil trials after being on hold for nearly six months, balanced with the public health concerns of COVID-19, when creating its procedures. While criminal trials are a higher priority due to Constitutional considerations, civil jury trials will begin to resume as well.
The initial stage of jury selection process will begin remotely. Due to the number of jurors that formerly filled the assembly rooms, it is simply not possible to start this process in-person and also comply with social distancing recommendations. The pre-screening process for excuses and deferments has been enhanced to streamline the potential jury pool. Once prospective jurors complete the qualification questionnaire, jury staff will contact each of them with follow-up questions related specifically to COVID-19. These questions include a juror’s ability to participate remotely in jury selection as well as an in-person jury trial. Additional factors related to COVID-19 — such as an individual’s age and underlying medical conditions — will be considered for deferment of a particular juror based upon current CDC guidelines. Any juror who has concerns unrelated to underlying medical conditions will not be excused and will be scheduled to speak with a judge virtually. Jurors that require technology in order to participate will be provided the necessary equipment by the Judiciary.
Jurors who are qualified through the screening process will participate in a voir dire virtual panel. The virtual panels of thirty prospective jurors will be asked questions by judges with attorneys and parties present. The judge will excuse jurors for cause. If a juror needs further questioning based upon an answer to a prior question, it will be done individually either later in that session or at a later date. Once jurors have made it through this process, they will be required to report to the courtroom in-person for the final round of jury selection. They will be asked whether they know any of the other jurors, and attorneys will be given the opportunity to exercise preemptory challenges. In order to remain socially distant, the judge and attorneys will be in one room with a live feed to jurors in another courtroom, seated six feet apart.
Once the selection process is complete, jurors will be given specific procedures in order to report for in-person trials. These procedures include different reporting times and specific routes to get to a particular courtroom. In the courtroom, social distancing conditions will be preserved by seating jurors six feet apart and rearranging counsel tables as needed. It is likely that many courtrooms across the state are not large enough to accommodate these measures. As such, it may be necessary to have public viewers such as family members in a separate courtroom where the proceedings will be live-streamed. This means multiple courtrooms in a courthouse will potentially be used for a single trial, thus reducing the number of trials occurring simultaneously.
While the logistics and procedures New Jersey has put in place would seem staggering to a 2019 audience, they are not only necessary to comply with CDC guidelines but are forward-thinking in our new world as we address and attempt to defeat COVID-19.
Jennifer L. Nairn and Caitlin L. Cardene, Litigation Paralegals, contributed to this advisory.