Ohio Judge Forges Ahead with Jury Trial Despite Evidence of COVID in the Courtroom
Despite a defense attorney’s recent contact with a person who tested positive with COVID-19 and a doctor’s order for him to self-quarantine, an Ohio trial judge insisted on going forward with a jury trial. On the second day of trial, the attorney was rushed to a hospital with COVID symptoms. The virus effectively overruled the judge’s insistence on going to trial when the trial was thereafter continued. In reporting the story, Cleveland.com gives us a pictorial view of jury selection during a pandemic, face masks and all.
NYU Civil Jury Project Speculates on the Look of Future Jury Trials
In the current issue of the Civil Jury Project's newsletter, research fellows Michael Shammas and Michael Pressman share a legal memo on the permissibility and constitutionality of virtual jury trials.
What Should a Judge Do When, on Day of Trial, It Is Unclear Whether One of Several Claims Is Eligible for a Jury Verdict?
In Smith v. Glenns Ferry Highway District, plaintiff sought damages for lost backpay and future lost pay against her former employer. On the eve of a jury trial, the defendant claimed the issue of future lost pay (aka “front” pay) was an equitable remedy outside the jurisdiction of a jury. The trial judge needed sufficient time to make a ruling on the defense claim but did not want to delay the trial. What to do? The judge creatively went forward with a jury trial on all damage issues with the caveat that he would consider the jury verdict as “advisory” on future lost pay until he made a final ruling on the defendant’s pretrial motion. The final verdicts were in plaintiff’s favor. In an appeal raising several issues, the Idaho Supreme Court ruled that plaintiff’s claims for front pay were properly determined by the jury.
Kentucky Jury Deliberated for Eight Days During COVID-19 Crisis
In what is reported to be the only federal jury trial in the USA during the pandemic, an eight-week trial came to an end on April 23 in Lexington, Kentucky. The trial attorneys and U.S. District Judge Karen Caldwell praised the jurors, with Caldwell saying, “When called for jury duty, most Americans do everything within their power to get out of it. Unlike most, these jurors came prepared to do what would have been a tough job under ordinary circumstances; but when confronted with COVID-19, these jurors unflinchingly rose to the challenge and bravely performed their duties under extraordinary circumstances." Precautions taken by the judge during trial included a requirement that jurors fill out a daily questionnaire about their health. She also interviewed each juror privately to see if they had concerns about continuing (none of them did). When it came time to deliberate, they did so in the courthouse lounge rather than in a smaller jury room so they could keep at least six feet apart.
Is It Reversible Error for an Absent Judge to Rule on Voir Dire Challenges for Cause?
Answer: probably yes, if trial counsel makes a timely objection on the record. This lesson stems from a decision in Trigg v. Children’s Hospital of Pittsburgh of UPMC,a medical malpractice case before the Pennsylvania Supreme Court. At trial, jury selection was managed by a court clerk, with a judge available to rule on objections (a procedure was consistent with local custom and rules). The plaintiff moved to strike for cause a prospective juror who had two family members who were doctors. Without any objection to the absence of the judge during voir dire, the parties agreed to let the trial judge rule on the motion based upon his review of the voir dire transcript. The motion to strike was denied and the trial proceeded with a final verdict in favor of the defendant. On appeal, plaintiff for the first time argued that “[t]here was no opportunity for the trial court to observe the demeanor or tenor of the challenged venireman’s answers.” A majority of the supreme court panel rejected plaintiff’s arguments due to her lack of making objections at the outset. However, the concurring opinions expressed “reservations” and “deep misgivings” about a civil voir dire process conducted outside the presence of a judge. Both concurrences determined that a second round of questioning would not yield adequate information for a judge to evaluate a prospective challenge based on actual bias. Each called for the Civil Procedural Rules Committee to consider whether civil jury selection should mirror criminal jury selection, requiring the judge’s presence unless the parties agreed to waive.