recently parsed what constitutes adequate waiver of
a public trial under state and federal caselaw. With the current public health crisis causing
edginess among some court actors and the general public about in-person gatherings, the case
may be worth consulting by courts and litigators.
Reasonable Path Going Forward:
Live streaming of trial proceedings during the pandemic likely satisfies the Waller test.
Streaming should provide clear video footage of judge, lawyers, and witnesses. Streaming of
jurors should be done in ways that protect their privacy and prevent intimidation. Since juror
demeanor is important in selecting a jury, images of jurors should only occur during voir dire
and not during the remainder of the trial. Each juror should only be identified by their badge
number. Any re-configuring of courthouse space or use of remote means to engage the media
and public at large should be accompanied by a clear, public statement by court management
that, in the words of the Press Enterprise court, the space adjustments and digital access is
“essential to preserve higher values (public safety, public trust, etc.) and is narrowly tailored to
serve [those] interest[s].” Independent legal advice should be engaged in the drafting of the
public statement.
III. Right to an Impartial Jury
Pandemic Issues:
The public health emergency challenges the creation of impartial juries in two major ways: (1)
summoning representative jury pools, and (2) selecting unbiased petit jurors. These are
discussed separately below.
(1) Representative Jury Pools
Healthcare experts have identified segments of the population that are especially vulnerable to
the effects of COVID-19. These include the elderly, those with pre-existing conditions, and
members of minority populations. They commonly are advised to take extra precautions such as
avoiding public gatherings. With many schools and businesses closed pursuant to public health
agency directives, parents and caretakers of vulnerable family members must stay in place with
their dependents. Accordingly, many endeavors such as schooling and job duties can only be
done remotely from home. The quality of remote communications is dependent, in varying
degrees, upon the quality of a citizen’s digital devices and internet access. These qualifiers are
largely dictated by the user’s financial means. In addition, during the current public health
emergency, first responders such as healthcare workers are constrained from leaving their jobs.
When courts undertake purely remote or hybrid jury trials, there is a risk jury summoning pools
will not be representative of a fair cross section of the community because distinct populations