California civil jury trials in the time of COVID-19

A potential juror exercising on an elliptical machine while another potential juror lays in bed, lead trial counsel barred from entering the courtroom, unanswered requests regarding the composition of the jury venire and the basis for hardships granted or denied, and attorneys' objections remaining unheard and unpreserved for the record -- these are just a few of the issues that plagued an ongoing asbestos-related personal injury trial in Alameda County Superior Court even before opening statements began.

As this recently commenced civil jury trial demonstrates, while some courts endeavor to proceed with jury trials during the COVID-19 pandemic, it remains uncertain how the parties' due process right to a fair and impartial jury can be ensured under previously unvetted conditions caused by remote proceedings. Fulfilling these basic constitutional guarantees involves two primary considerations:

1. How can courts guarantee that the jury venire will be composed of a representative cross-section of the community when the pandemic has had a disparate impact on the population based on age, medical status, familial composition, economic status, and other factors?

2. How can counsel conduct a "liberal and probing examination" of a potential juror so as to "intelligently exercise both peremptory challenges and challenges for cause" if a juror is masked or participating in the trial remotely or if counsel is not able to attend voir dire in person? Cal. Code Civ. Proc. Section 222.5(b)(1) (emphasis added).

Issue #1: How can courts guarantee that prospective jurors will be selected from a representative cross-section of the community during the pandemic?

As to the first issue, the Trial Jury Selection and Management Act, which is contained within California Code of Civil Procedure Section 191, states that it is the "policy of the State of California that all persons selected for jury service shall be selected at random from the population of the areas served by the Court" and that "all qualified persons have an equal opportunity, in accordance with this chapter, to be considered for jury service in this state." Code of Civil Procedure Section 197(a) similarly provides, "[a]ll persons selected for jury service shall be selected at random, from a source or sources inclusive of a representative cross-section of the population of the area served by the Court." Furthermore, no eligible person shall be exempt from service as a trial juror by reason of inter alia occupation or economic status. Cal. Code Civ. Proc. Section 203(a).

Contrary to the foregoing statutory mandates, the pandemic and recent spike in coronavirus cases will unintentionally, but inevitably, ensure that a jury venire does not represent an adequate cross-section of the community as a whole. For instance, the elderly or persons with preexisting medical conditions may refuse to serve given their enhanced susceptibility to disease contraction, and, therefore, not even appear for the jury selection process. Even if a jury trial is conducted entirely remotely -- a prospect that raises numerous additional concerns highlighted below -- socioeconomic factors may lead to the systematic exclusion of potential jurors who do not have access to the technology and broadband required for remote participation. Moreover, while resource-strapped courts may seek to remedy these inherent disparities by imploring parties to voluntarily foot the bill for such expenses, such a solution unavoidably means that only litigants with financial capabilities can proceed with jury trials during this time and fails to grapple with how existing statutory cost-shifting mechanisms should be addressed.

As Chief Justice Tani Cantil-Sakauye expressly recognized in her March 23 emergency statewide order suspending all jury trials for 60 days, "the closure of schools means that many ... potential jurors cannot leave their homes to attend court proceedings because they must stay home to supervise their children. These restrictions have also made it nearly impossible for courts to assemble juries." The statewide impact of the pandemic has not receded since March when the stay on jury trials was issued and there is no sign that its effects will be any less on potential jurors in the coming months.

Issue #2: How can counsel conduct a "liberal and probing examination" of potential jurors to ferret out potential bias when jurors are masked or only participating in voir dire remotely?

To allow jurors to participate in trial despite fear of contracting the coronavirus or lack of high-speed internet at home, the Alameda County Superior Court adopted a hybrid approach to jury selection for the pending asbestos trial mentioned above. Specifically, while most prospective jurors participated in voir dire remotely using the Zoom videoconferencing platform, a few jurors attended voir dire in person with a device provided to them, while the judge was in another room, unmasked and counsel participated remotely. However, both prongs of this approach not only the violated parties' right to conduct a "liberal and probing examination" to ensure the selection of a fair and impartial jury, but ultimately proved infeasible.

California Code of Civil Procedure Section 222.5(b)(1) states in pertinent part that "counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable the counsel to intelligently exercise both peremptory challenges and challenges for cause ... During any examination conducted by counsel for the parties, the trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case before the court." Id. (emphasis added). As various courts have recognized, "in practical terms, observing potential jurors may reveal as much about them as counsel may learn from listening to them. As if to underscore the importance of the visual aspects of jury selection, the legal term used to describe the process -- voir dire -- is itself a combination of two French verbs meaning "to see" and "to say." The importance of observation during voir dire extends to court and counsel alike." See, e.g., People v. King, 195 Cal. App. 3d 923, 932 (1987).

Moreover, inadequate voir dire that is "fundamentally unfair" is a basis for reversal as the right to voir dire is "a means to achieve the end of an impartial jury." People v. Fuiava, 53 Cal. 4th (2012) (relying upon People v. Carter, 36 Cal. 4th 1215, 1250 (2005). Indeed, without adequate voir dire, the trial judge's responsibility to remove prospective jurors who will not be able to impartially follow the court's instructions and evaluate evidence cannot be fulfilled. People v. Roldan, 35 Cal. 4th 646 (2005) (disapproved on other grounds by People v. Doolin, 45 Cal. 4th 390 (2009); see also Cal. Code Civ. Proc. Section 128(a)(3) (court has the power "[t]o provide for the orderly conduct of proceedings before it"); California Crane School, Inc. v. National Com. for Certification of Crane Operators, 226 Cal. App. 4th 12, 19 (2014) (judges "are responsible for ensuring ... that juries are properly cared for and that all court cases assigned to them are fairly and efficiently heard and decided").

The Alameda County Superior Court's decision to proceed with jury selection by way of masked jurors in the courtroom and unmasked jurors participating via videoconferencing impeded counsels' ability to intelligently examine potential jurors as a group and foreclosed the court's ability to remove jurors who were unable to follow instructions. First, with regard to the masked jurors who appeared on Zoom from the courtroom, because counsel was barred from entering the courtroom -- despite wearing a mask and despite being able to socially distance -- counsel could not observe the potential jurors' body language and was restricted to seeing only the jurors' eyes. Accordingly, it was impossible to observe those jurors' facial expressions, such as smirking or smiling, when responding to questions designed to guarantee the selection of a fair and impartial jury.

Turning to the unmasked jurors who appeared virtually using the Zoom platform, effective voir dire was hampered by the following:

• Counsel was at the mercy of jurors' decisions regarding how to frame their webcams, which often only showed jurors' faces rather than their entire bodies;

• The Zoom platform was configured such that it was not possible to see all 18 prospective jurors that were questioned as part of the first panel of jurors, so counsel could not see in one screenshot the reactions and facial expressions of potential jurors simultaneously when the attorney conducting voir dire was asking questions; and

• Multiple jurors were clearly not paying attention and were engaged in other activities during voir dire. For instance:

o One juror was lying in what appeared to be a bed, curled up and possibly asleep;

o One juror was working out on an elliptical machine;

o Another juror left the screen during questioning to go to the kitchen and remove something from his stove top;

o Several jurors connected to Zoom with one device while simultaneously using another device and appeared distracted from the ongoing voir dire proceedings.

Further complicating matters, attorneys -- who were only allowed to appear remotely -- were not able to lodge objections to the foregoing irregularities in a simultaneous fashion because they were placed on mute by the Zoom moderator and were unable to unmute themselves without being released by the moderator. As a result, counsel's objections were not timely noted on the record during the voir dire process. Moreover, counsel had to raise global objections to the irregularities in the proceedings during breaks, outside the presence of the jury, hampering the court's ability to admonish jurors for improper behavior in real time.

Proposed Solutions

Considering the myriad problems outlined above in attempting to select a fair and impartial jury that represents a cross-section of the community during the pandemic, we submit that trial courts should consider the admonition iterated by the 1st District Court of Appeal in considering "the severity of the COVID-19 pandemic and the impact it has had within this state" that "[p]ublic health concerns trump the right to a speedy trial." Stanley v. Superior Court, 50 Cal. App. 5th 164, 169 (2020) (citing People v. Tucker, 196 Cal. App. 4th 1313, 1314 (2011). Expressed differently, "[w]hen pandemics or other emergencies disrupt court operations, decisions about which proceedings to delay and which proceedings to conduct must be based on a careful balancing of the actual risks presented and the specific rights at stake." Bullock v. Superior Court, 51 Cal. App. 5th 134 (2020).

To the extent possible, and in accord with the procedures being implemented by many superior courts and federal courts in the state, civil jury trials should be continued to such a time as the public health crisis is sufficiently under control to ensure that large swaths of the community are not systemically excluded from jury pools and jurors are able to appear in person without the need for face masks. The inconsistent decisions and procedures currently being implement by each of the fifty-eight superior courts in California results in unequal access based on locale and improper forum shopping.

In the interim, if a civil jury trial must proceed remotely, it would be useful for the court to hire a technology expert at its own cost, to (1) research and implement a superior alternative to Zoom, including a videoconferencing platform that allows counsel to see all members of the venire while conducting voir dire, and (2) resolve all technical difficulties, including the muting and unmuting of participants during the voir dire process, prior to the start of trial.

Although there is no perfect solution, we will continue to strenuously fight for our clients' right to a fair trial despite the extraordinary strains caused by the current pandemic. 