The Challenges and Changes Needed to Balance a Defendant’s Rights and Overall Safety

Jury trials are more than a standard in the American Criminal justice system; they are a right. Specifically, the Sixth Amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial Jury of the state and district wherein the crime shall have been committed… to be confronted with the witnesses against him/her… to have the assistance of counsel for his/her defense. Likewise, jury duty is not only citizens’ civic responsibility, but it is mandatory with few excusable exceptions. So, that’s the law, but what is the reality as we face the new “COVID” norm?

Many lawyers, judges and legal experts have been weighing in on this topic, as have legislators and advocacy groups. One of the biggest questions is that of balancing a defendant’s rights to a fair trial, judged by a jury of their peers, with health and safety afforded jurors and everyone involved with a trial.  So in heading back into the courtroom, we wanted to examine a number of the challenging questions from the criminal defense table.

Masks or No Masks

Non-verbal as it may be, one’s expression speaks volumes from thoughts and ideas to emotions and reactions. A mask hides these key communication tools. In the courtroom, attorneys on both sides rely on reading jurors’ expressions. Do they understand the evidence? Are they following the testimony? Do they believe the witness?  Are they laughing or smirking? Are they angry or sympathetic? These all lead to the question … Will masks deprive the defendant of his/her right to confrontation?

These same masks are worn by the lawyers, witnesses and yes, the defendant, heightening the jurors challenge in deciding the verdict.  Establishing credibility is critical. After years of trying cases in criminal court, strategies need to evolve and take into account the limits now faced to overcome the masks. Eyes may be the “windows to one’s soul” but are they enough to rely upon to fairly adjudicate one’s livelihood and in some cases his/her life?

Keeping the Players Healthy

Logistically, the courts also are finally being forced to look at health and safety issues. Jury trials pose a number of issues. Will there be mandatory COVID-19 testing of attorneys, judges, jurors, witnesses and court staff?  Where and how will the jurors sit? Will there be plexiglass between jurors and in front of the panel? Court houses, specifically in cities like Philadelphia, are high-rise buildings and thus there are elevators. How will social distancing be maintained in elevators and small jury deliberation rooms?

Questions exist outside the walls of justice, too.  How will the fear of COVID impact the jury pool?  Individuals already often look for ways to avoid jury duty. Will this make it even more difficult to select a jury of one’s peers? And, once selected, what if a juror or court employee gets sick or is exposed to the coronavirus? Do we quarantine the whole panel? Does the judge declare a mistrial? Will a greater number of alternates be needed?

As part of the Bill of Rights, one is guaranteed a fair and impartial trial by a jury of his/her peers so all of these questions will need to be answered. Even more importantly, having an experienced criminal defense attorney ~ one who recognizes the need to adapt their strategy to the environment ~ is key to ensuring the best client representation.

At Neff & Sedacca, P.C., we are committed to providing strategically-sound, aggressive defense for our clients. If you have been accused of a crime or have questions regarding your rights in criminal legal matters, you should seek experienced legal counsel. To schedule a confidential consultation with the attorneys at Neff & Sedacca, P.C., contact the firm by phone at 215-563-9800 or email [email protected].