The pandemic has brought jury trials in Maryland courts to a halt. At some point, restrictions on public access to the courtrooms will be lifted. The question is, how will jury trials be conducted? Certainly, there will be a large backlog of cases that were set for trial during the pandemic, which have to be rescheduled. Concerns for social distancing will make it difficult for Courts to require jurors to crowd into small courtrooms for the jury selection process and to remain there throughout the duration of a trial.
What are the options for restarting jury trials in civil cases? The following are some potential ways to address the issue:
- Pre-screen prospective jurors and send orientation materials to them remotely. In this way, jurors will not be required to assemble in one large room when called for jury duty.
- Allow jury selection to take place remotely. Provide prospective litigants with information provided by jurors in response to questionnaires, rather than conducted in the courtroom. Lawyers could then select prospective jurors and conduct preemptory strikes outside the presence of the jury.
- Conduct trials with jurors participating remotely through video. This presents obvious technical issues, including the need for reliable equipment and internet capabilities. Legal rights concerning litigants’ ability to personally confront witnesses in the presence of jurors may also be at stake.
- Increase social distancing within the courtroom. This may mean eliminating the gallery in most courtrooms. Obviously, this presents issues concerning the right to “open and public” trials.
- Pre-test all prospective jurors, litigants, and courtroom personnel. How does this impact HIPAA rights of individuals? It will also be some time before a significant portion of the prospective jury pool will either have received vaccinations or immunity to COVID-19.
- Pursue non-jury trials by agreement, whenever possible. The Maryland Declaration of Rights preserves the rights of litigants in civil cases to have jury trials when the amount at issue is above $10,000. However, if both parties want to see resolution of the case sooner, this may be the most viable option.
We think it is important to consider all potential options and discuss them with our colleagues on the bench and the bar. We invite you to reply to this Think Piece and advise whether you are interested in participating in a webinar to discuss these (and related) issues.
 The authors acknowledge the following article as inspiration: https://www.bbc.com/news/uk-scotland-52280860