Southern District of California Prepares for Jury Trials

SAN DIEGO (CN) — After going for months without criminal or civil jury trials, the Southern District of California Wednesday live streamed a mock trial where witnesses wore face shields, courtrooms were flip-flopped and trial spectators were relegated to overflow courtrooms.

U.S. District Judge Anthony Battaglia, who chairs the Southern District’s committee making plans to revive jury trials during the pandemic, said during a Zoom meeting Wednesday hosted by the San Diego chapter of the Federal Bar Association, “I’m going to state the obvious: the coronavirus has had a huge impact on all of our lives, an impact on the court and the practice of law.”

Jury trials have been suspended in the Southern District of California since Chief Judge Larry Alan Burns issued an executive order March 17.

Burns’ order has since been extended several times and the current iteration extending the judicial emergency is set to expire Aug. 14.

Battaglia said Wednesday the court is expected to reveal its final jury trial plans within two weeks, though it isn’t yet clear when the first trial in months will be held in federal court in San Diego.

He said the committee consulted with a public health doctor who reviewed the court’s plans to resume jury trials and gave the scientific seal of approval.

“He was able to tell us our plans were square on for meeting the CDC’s guidelines and if they were followed, the chances of transmission between people in the building was virtually nil,” Battaglia said.

But Battaglia acknowledged “people don’t always follow instructions,” noting it was a problem during the mock trial experiment filmed last week.

Virtual trials will not be held despite those concerns, Battaglia said, as judges are concerned about having a fair cross-section of the community represented in the jury pool and technological gaps could prevent that.

He also noted problems with at-home distractions were jurors to serve virtually, pointing out the average five to seven-minute attention span of people would be hindered during a two-dimensional trial viewed over a computer screen.

Battaglia said “health and safety will be paramount” when jury trials are held again and if witnesses, attorneys or parties to cases are in high-risk groups for contracting Covid-19, that will be a factor in trial scheduling.

“We are not setting aspirational dates anymore,” Battaglia said.

“Hopefully when you get a trial date in the weeks ahead, it will be for real,” he added.

A video played during Battaglia’s address Wednesday gave an idea of what is to come.

The pre-recorded video showed jurors lined up outside the courthouse, maintaining six feet distance before being screened by court security and allowed inside the courthouse.

Once inside, jurors will be greeted by jury staff in the lobby, with arrival times for jurors staggered to avoid any lines from forming and to maintain physical distancing.

Jurors will be given a plastic bag containing a face shield, sanitizing wipes, jury questionnaire and sterilized pen and notepad.

The jury assembly room can safely seat up to 60 jurors at a distance, Battaglia said, while smaller groups of jurors will be ushered to rooms where voir dire can accommodate up to 40 jurors.

During jury questioning, jurors will take off their face masks, but will wear a face shield so attorneys and the judge can see their demeanor when answering questions.

Attorneys won’t be able to hold traditional sidebars and will be discouraged from passing notes, Battaglia added.

“Does this jury selection take more time? Absolutely,” Battaglia said. “We recognize things will move slower, but in the interest of safety, they must.”

Jurors not selected to serve on a trial won’t be asked to come back the following day, Battaglia added, emphasizing new jury panels will be brought in daily. Those serving on a jury will be sequestered to the courthouse during the day, with the court providing snacks and lunch.

Once in the courtroom, judges will have a couple different options for how they can run trials while maintaining physical distancing.

Battaglia said in his courtroom he’ll employ the flip-flopped option where jurors will sit in the gallery, rather than the jury box, and attorneys will sit on the opposite side of the counsel tables’ facing jurors in the space usually reserved for spectators.

Witnesses will be seated at the podium in the middle of the courtroom traditionally used by attorneys during questioning and opening and closing trial statements. The stand will be cleaned between witnesses.

Family and members of the press wishing watch trials will have to do so via livestream in overflow courtrooms.

“It’s regrettable, but we have to take function over form at this point,” Battaglia said.

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