Will courts mandate jurors receive COVID vaccines?

Does a defendant have the right to a jury of their peers if their peers aren't vaccinated?

For the moment, it appears few courts require prospective jurors to receive an inoculation. But rising COVID cases may tempt some judges to mandate shots. Positive COVID tests among jurors have already derailed several trials around the nation in recent weeks.

Courts also have a far larger pool of vaccinated jurors to choose from compared to a few months ago. But surveys show Republicans and non-whites are less likely to be vaccinated.

The vaccine issue puts judges in a difficult spot, said Dan Johnson. He is an attorney and the co-founder of JurorSearch, a Chicago company that aids attorneys with voir dire.

"My guess is we won't see vaccination as a condition of jury service largely because the judicial officials in charge of jury service are less directly responsible for public health than the governors and mayors who have been imposing them as harm reduction measures," Johnson said. "Plus judges are more sensitive than a Governor to any decisions that might justify an appeal."

Research appears to back up the idea that Democrats and people of color are more sympathetic to criminal defendants while Republicans are more likely to side with corporate civil defendants. But Dr. Lorie Sicafuse said these gaps play a far bigger role in criminal trials than in civil proceedings. This is in part because of recent "polarization" on both sides of the political spectrum on criminal justice issues.

"I think the concern is legitimate, especially for a criminal defendant of color," Sicafuse said. "If you're looking at political affiliation, I really think the corporate defendants have a little less to worry about. ... It's true that Republicans are more sympathetic to corporate defendants, but the effect size is not that strong."

Sicafuse is a psychologist and litigation consultant with Courtroom Sciences Inc. She said corporate defendants also try to avoid younger jurors, a group that often sides against them but has lower vaccination rates than the general population.

But civil attorneys are concerned. In June, U.S. Senior District Judge Dan A. Polster in Ohio told the parties he was considering disqualifying unvaccinated jurors in a major opioid liability case. But he quickly changed his mind after attorneys for several pharmacy chain defendants moved to reconsider, claiming Polster gave no warning of this requirement that could "change the composition of a jury." In re: National Prescription Opiate Litigation, 1:17-md-02804 (N.D. Ohio, filed Dec. 8, 2017).

"Data available to date indicates that vaccination rates are higher among persons who identify as liberal rather than conservative, Democratic rather than Republican, professional rather than nonprofessional, and college-educated rather than not," according to the motion submitted by Eric R. Delinsky, a partner with Zuckerman Spaeder in Washington, D.C. who is representing CVS Health Corp. "Accordingly, there is a substantial risk that a jury pool drawn solely from fully vaccinated persons will not fully reflect the community along ideological and socioeconomic dimensions."

Delinsky also quoted guidance the Administrative Office of the U.S. Courts issued in May stating "courts might ask virus-related questions for court safety, but getting the vaccine isn't a legal qualification for service on a jury."

Spokesman Peter Allen said on Monday the Judicial Council of California has issued "no statewide guidance on vaccines and juries."

Asking jurors about vaccination status "does not violate the federal Health Insurance Portability and Accountability Act (HIPAA)," according to guidance the National Center for State Courts issued in May. But "excluding persons who are not fully vaccinated ... may also increase the risk of jury challenges," the Center advised.

A July Washington Post-ABC News poll found 86% of Democrats had received at least one shot, compared to 45% of Republicans. A Kaiser Family Foundation survey that same month found that among those who say they "definitely will not get" the shot, 58% were Republicans and just 15% were Democrats.

Another Kaiser survey this month showed Blacks and Hispanics were less likely to be vaccinated. But the survey numbers "suggest a narrowing of racial gaps in vaccinations at the national level, particularly for Hispanic and Black people," Kaiser wrote on Aug. 18. Meanwhile, the July Washington Post-ABC News Poll survey said when comparing vaccination rates between counties that voted for Joe Biden and those who voted for Donald Trump, "the gap has grown."

"It's true the gap is widening, and its Republicans who are less likely to accept these vaccines," Sicafuse said.