Wisconsin Court Comes Up with Jury Summoning Questionnaire Addressing COVID Concerns

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Wisconsin Court Comes Up with Jury Summoning Questionnaire Addressing COVID Concerns

The circuit court for Brown County (Green Bay) has come with a juror qualification questionnaire that reflects the public safety concerns of jury administrators.  It may well serve as a model for others.

“Expect Your Jury Is Going to Bring Up Those ‘Forbidden Topics’”

That is the title of a posting in Lexology by trial consultant Dr. Ken Broda-Bahm.  He summarizes empirical research on the conduct of jurors who are typically instructed in civil cases not to consider such things as whether the defendant has liability insurance, the amount of plaintiff’s attorney fees, and the existence of settlements with nonparties.

Prospective Jurors’ Expressions of Doubt on Core Issues Require They Be Stricken for Cause

That was the holding by a New York State appellate panel in People v. Padilla. At trial the defendant’s lawyer asked prospective jurors if they could independently consider four separate incidents that are linked to different indictments and if they understood the prosecution’s burden of proof.  Several jurors expressed doubt they could do so.  After denying the defense motion to strike the jurors for cause, the court gave a general instruction to the venire panel about the presumption of innocence and treating each indictment separately.  Thereafter the court asked the panel if they understood the instruction—to which no responses were received.  The three-judge panel found “the prospective jurors’ silence in response to the court's explanation and question did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant's challenges for cause.”

Former Juror Claimed She Was Pressured by Peers to Vote Guilty. What Should a Trial Judge Do?

In United States v. Brooks, an African American juror wrote a note hours after a guilty verdict was rendered telling the judge her fellow jurors pressured her to vote for guilt.  She said she had reasonable doubt but the others “sided with the police even though they all agreed that the[re] was enough lack of evidence to cause a reasonable doubt.”  The U.S. Court of Appeals for the 6th Circuit, applying the doctrine in Pena-Rodriguez v. Colorado, rejected defendant’s assertion that the court should have held an evidentiary hearing to impeach the verdict to explore the presence of implicit bias among the jurors.  The court determined the juror’s note did not reference any racial bias among the jurors.  Specifically, the panel interpreted Pena-Rodriquez “to require express statements of racial animus, not neutral statements that may suggest unexpressed racial biases.”

New Jersey Courts Share Model Orders for Undertaking Remote Jury Trials

The New Jersey Supreme Court in its January 7, 2021 Order authorized a two-phase approach to virtual civil jury trials, with trials initially starting in a few counties, proceeding only with the consent of all parties, and then as of April 5, 2021 expanding statewide with no requirement of consent.  As noted in its Order, the Court solicited early input from stakeholders and considered 45 public comments submitted in response to its initial proposal.  As of now, virtual civil jury trials are scheduled to start next week in Gloucester, Monmouth, and Passaic counties.  The court’s February 1, 2021 Order amended two provisions of the January 7, 2021 Order, including a provision that recordings of those first trials will be posted on the court website after review (rather than live broadcast) to make sure that images of jurors are not inadvertently shown.  The court developed additional resources to support judges, attorneys, and parties in upcoming virtual civil jury trials.  Those resources are posted on the public website.  They include a model order to be customized and completed in advance of the trial, as well as instructions to jurors on how to participate in a virtual session.  The judiciary also posted video recordings of the first three virtual civil jury trials on the website.

Houston Rounds Up Jurors Rodeo Style

Judge Rabeea Collier, co-chair of the Harris County's COVID-19 judicial task force, told Law360 about the county's deal with NRG Arena to assemble jurors there (when the rodeo's not in session), buy new headsets and seat cushions, and test the demographics of jurors starting with a grand jury last summer.  She is quoted to say:

One of those things, I can tell you, is sound. Picking a jury in an arena or stadium is pretty difficult for sound purposes.  What we ended up doing is having individual voice-activated microphones and headsets so that all the jurors could hear properly, could hear the questions, and the lawyers could hear the court and the court reporter. And we have headset covers that are changed out from juror to juror; it's only used once a day, and we provide a new cover. The headsets, those are cleaned once a day.  Jurors are only allowed to sit in one seat a day. So, we really have tried to limit any type of cross-contamination and have tried to the best of our ability to reduce the risks to the public of contracting COVID. They have zip-tied the seats to maintain and enforce social distancing. If you picture stadium seating, they have literally zip-tied the chairs that you cannot sit in. And it's cleaned every night.