As we have emerged from our hibernation over the last year-and-a-half and have gotten back to regular court appearances and jury trials, it is not hard to tell in many respects the landscape has changed. This may be especially true for those of us who practice in rural areas and do not have the option of continuing to appear via Zoom.
I know from my personal experience that jury selection in rural towns can be challenging depending upon the nature of the charges. I have had several serious cases where we have held jury selection in the local civic hall, the DAV, or other various county structures that can hold more than 150 people at once based on the nature of the charge. The older historic courthouses, while picturesque and beautiful, were not designed to accommodate 150 or 200 people or more. Often times when you have a sexual assault or murder case in a small town where everyone knows everybody else’s business, you might have to have panels that big to get an impartial and fair jury. So, when we started to come out of that great pandemic hibernation and we are being sent to the local ag barn or exposition center to pick our juries, many of us had been to the local ag barn or exposition center before.
However, we were not prepared for not being able to clearly see a juror’s face because of the face-shield or mask. The jury selection process has developed the sterile feeling of some type of laboratory experiment. How you navigate that particular type of problem depends to a significant extent on how your judge has been addressing and handling these types of issues since March of 2020. If the Court just does not care, it may be that you need to object that the Court is not taking the appropriate safety precautions to protect the prospective jury panel and court personnel. Remember, those folks must be there because they are appearing based upon the Court’s summons for jury duty but the rest of us are there because we are being paid to appear and do our respective jobs.
Personally, I do not like the idea of wearing a face-shield or mask during jury selection. It detracts from the personal connection we are trying to establish with the jury. I do, however, believe it is the correct decision for everyone involved. This is in no way a political statement or position, but I do not want to be known as the person that potentially infects a prospective jury panel. I believe for the time being as we get back to work in courthouses across the State, that we need to accommodate others and be aware of our surroundings and the fact those jurors are serving the community. Now, I know some judges who have told me they do not believe they can require anyone to wear a mask in the courtroom because of the Governor’s pending executive orders. While I do not agree with that position, I do respect how they have arrived at that decision, and ultimately it is the Judge’s decision to make. This is just one of the problems I have seen come up over the last six months as we have gotten back to work in court. I, for one, am thankful we have moved back into the courtroom. I do not believe we can be as effective via Zoom as we are in-person when protecting and advocating on our client’s behalf.
I can see other issues which have begun to spring to life as we proceed to trial in a post-COVID environment. If I choose to wear a mask during trial for my protection and my client’s protection, should I be allowed to ask the prospective jurors what their feelings are regarding the wearing of a mask or face-shield? It appears the choice to wear a mask or to get vaccinated has somehow turned into a political debate. Is it appropriate for someone to object to proceeding to trial if the Court does not require all the prospective jurors, court staff, and personnel to wear a mask and take appropriate safety measures? These questions and issues are fascinating to me because we all hold different beliefs of how they should be addressed and handled by those in charge. Some believe its none of that person’s business and the government needs to stay out of my decision-making process. Others feel we have people in charge to protect the community as a whole and especially the more vulnerable people in our communities. So, how we manage these types of issues becomes more delicate in a post- COVID environment because we certainly do not want a prospective juror’s perception of our beliefs to affect our client during trial. This is why, we look to the Court to call balls and strikes on these and many other issues which are fast approaching, as we get back to normal.
To that end, our Rural Practice Committee is in the process of organizing and putting together a cheat-sheet or tips for trial checklist for use in court as it concerns some of those issues which may be affecting our brothers and sisters in rural areas. There are no bad ideas or arguments as we start to formulate this tip sheet/checklist, so I would ask for everyone’s input and assistance in getting this project off the ground.
If you have been in trial and faced a problematic issue, caused or exacerbated by the circumstances we currently find ourselves in courthouses throughout the State, please send us your thoughts but more importantly your solutions. This is going to be an undertaking which takes our entire village, collective voice, and knowledge to deal with in the year ahead. If you are able and willing, please help us in this endeavor which will benefit our entire membership. You can contact us with your ideas, tips and thoughts by sending them to me at or to Melissa Schank at . As always, we and you are TCDLA Strong.