For anyone accused of a crime, the right to a jury trial is one of the most fundamental principles in the American criminal justice system. But what does that right look like when a pandemic strikes? Courts across the country have managed to conduct a variety of legal proceedings remotely, including arraignments, attorney conferences, guilty pleas, even some bench trials. But what about criminal jury trials? How can we balance fairness and due process concerns, against the need for public safety during the pandemic? The reality is that there are no easy answers. Oregon is one of the first states to reinstate in-person jury trials. The question of wearing masks in court, immediately rises to the forefront. If jurors are wearing masks, how can an accused effectively select a jury, without being able to see facial expressions, such as smirks or scowls, which are an easy tip off to bias? How would a jury react if the accused looked like a masked bandit in the courtroom? An even more fundamental question is whether a jury pool would properly reflect the community, if groups hit hard by the coronavirus, like older folks, African-Americans, and Latinos, were more reluctant to show up for jury duty. Can a trial truly be considered “public”, if the public has been told to stay at home during the pandemic? Finally, how is a criminal defense lawyer supposed to effectively communicate with the client, when both may be wearing masks, and social distancing in the court room is encouraged? These are just some of the important questions that our system must wrestle with in order to protect the rights of an accused.
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