COVID Implications for the Criminal Justice System

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The impact of COVID on the criminal justice system will take many years to unwind. The Texas Supreme Court continues to push back the jury trial “start” date for the criminal courts. Texas is currently under an April 1 Order, but the date has been pushed several times and may be pushed into the summer. Many thousands of cases are languishing on trial dockets around the state with the number growing every day.

While some judges presiding over civil matters have found a way to move forward with virtual trials, the same can’t be said for criminal dockets. Constitutional protections, such as the right to confront accusers, are not satisfied with virtual proceedings. When jury trials do resume, the many people in jails across Texas waiting for their own trials will undoubtedly take priority over anyone out on bond who is also waiting for their day in court.

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A few criminal judges have been approved to hold criminal jury trials under approved plans. In a few instances these trials have resulted in exposure to COVID on the part of jurors, attorneys, and court staff. The number of judges who continued to hold in-person court appearances over the past year and later came down with the virus continues to grow. At least one has passed away.

Many questions remain about how jury trials will be conducted. Absent widespread and effective vaccination program and/or herd immunity to COVID-19, what procedures will work? A great deal of communication between people is non-verbal. Facial expressions form an important part of how we interpret what someone is saying and how we read the reaction of others. As someone who picks juries on a regular basis, and teaches trial skills to attorneys across the nation, the thought of trying to select a jury when prospective jurors are wearing masks is a scary prospect. I’ll miss facial expressions, smiles, frowns and micro-expressions that normally give me insight into how a prospective juror is reacting to what is being said. People will often display on their faces what they are thinking and feeling but are reluctant to say.

What about witness testimony? How does a juror judge credibility of a witness when they are wearing a mask? If asked a question during cross examination that possibly exposes dishonesty or a lack of candor on the part of the witness, will the jurors miss it because they can’t see their face?

I was pondering these thoughts on a recent trip to the grocery store. I noticed how often we smile at strangers as we try to pass them in a crowded aisle, or indicate we’re stopping to let them pass with facial expressions instead of words. While wearing a mask, this non-verbal communication is seriously hindered. It’s also more difficult to recognize sarcasm and humor.

If your hearing is not as good as it used to be, a mask can make verbal communication very difficult What if the jurors can’t hear all of what a witness is saying due to the mask? In most of my trials, complicated scientific testimony is being offered. It is essential that the jurors be able to hear the witness.

In the months and years ahead, it will be interesting to see how the courts and legal profession work out all of these issues. I know we trial lawyers hope for the day when we can go back to court and try cases in person with all parties not wearing masks. However, when that day may come is hard to predict at this point.

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