This photo has been used for illustrative purpose only. TNS

Patricia Hurtado

As the world’s courthouses prepare to reopen, many are installing plexiglass “sneeze barriers” and instituting face-mask requirements for litigants and court staff. But one especially vexing problem remains: how to bring back the jury and where to put them.

Consider the plight of Minnesota’s Hennepin County, where courts have started with pilot jury trials from June 1. The county, which includes Minneapolis, is considering moving some jurors out of the traditional 14-seat box into the gallery, but there’s concern that might put them too close to the lawyers in the case.

“The social distancing will need to have those folks at least 6 feet apart,” said John Rode, senior facility planner for the court system there. “That is a big question.”

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Such concerns offer a glimpse of the challenges that face court systems around the world at a time when open, public hearings are being discouraged due to the coronavirus pandemic. Video and phone conferences have been substituted for many in-person proceedings but most lawyers doubt a major trial could be held remotely. And in criminal trials, the right to a public trial by jury, where the accused can confront the witnesses against them, is fundamental in the US and many other countries.

Complicating the debate is the massive backlog of cases that has piled up in the months since courts first closed. Moving forward with those even as new filings pour in would be a challenge even for courts operating at full tilt.

Some places may still be far from reopening. In the New York City area, the epicentre of the US coronavirus outbreak, no date for reopening has yet been set, said Janet DiFiore, chief judge of the New York Court of Appeals. But dozens of counties in upstate and central New York have resumed limited in-person court operations.

All reopening New York courthouses will undergo a deep cleaning, said DiFiore. Hand sanitiser dispensers have been installed, as have plexiglass barriers around the areas where visitors are screened by security. Everyone entering courthouses in the state, including judges and staff, will be required to wear a face mask, and visitors must also undergo temperature checks.

“Make no mistake, this is most decidedly not a return to business as usual,” DiFiore said. Those returning would find “a new normal” with “a reinvented court system.”

Temperature checks have also been introduced at some courts in Arizona, where the stay-at-home order expired on May 15. In a recent week, approximately 890 people were screened at courthouses in and around Tucson, with four people with temperature spikes kept at the door for re-checks, said Marcus Reinkensmeyer, director of court services for the Supreme Court of Arizona. To limit how many people are in the courthouse at any one time, other courts in the state are using vibrating restaurant pagers to alert visitors when they can enter, he said.

Judge William Kelly’s courtroom in Kentwood, Michigan, is still closed, but he said plexiglass had been installed around his bench and the court stenographer’s station in anticipation of reopening. Courthouse seating has been removed or blocked off to limit crowding, and separate “used” and “clean” pen cups will be introduced, he said. In the meantime, Kelly found an advantage to video conferences — lawyers can’t beg off coming into his courtroom. “No more saying, ‘well, I can’t be there,’” he said.

Reinkensmeyer says some of the changes may stick. “Let’s leverage some of the new technology, some of the lessons learned, to continue into the future,” he said. “To me, that’s the silver lining maybe in this time of crisis — that we can improve court access and efficiencies.”

But it remains to be seen how far technology can be pushed. A county court in Texas recently took a crack at holding a jury trial by Zoom in an insurance dispute that had been delayed from March. More than two dozen prospective jurors logged in remotely on May 18 for a selection process that was live-streamed on YouTube. The one-day proceeding delivered a non-binding verdict designed to guide mediated settlement talks.

But Columbia Law School Professor Daniel Richman said he didn’t see that working for a criminal trial. “A defendant has a right to be present in court but there are also confrontation rights — there is an understanding that the jury can see the defendant and the defendant can see the jury in a courtroom that can’t be easily reconciled with a Zoom or virtual trial,” said Richman.

In France, jury trials, typically held only for violent crimes, restarted on June 2. But Pierre Reynaud, an official with the Paris appeals court, said the French judiciary is considering transferring cases carrying maximum sentences of 20 years or less to non-jury proceedings. Those guidelines would cover the vast majority of jury trials in France, he said.

A categorical shift like that wouldn’t be possible in the US and UK, where those accused of all but minor crimes have a right to jury trials they would need to waive. Some debate has emerged in Britain about possibly allowing the choice of a criminal trial decided by a judge. Prominent human rights lawyer Geoffrey Robertson has argued for such a move, saying some defendants, particularly those who have been vilified in the press, may find judge trials fairer.

But prominent figures have pushed back against the idea, stressing the importance of juries to the British sense of justice. These include the chief judge for England and Wales. “I would hope that parliament would take a deep breath before authorising judge-only trials, even temporarily,” Lord Burnett recently told a parliamentary committee.

Jury trials have already started again in the U.K., and their experience could guide Rode and others planning their resumption in the US One major case in London’s Old Bailey was spread across three courtrooms, with one serving as a replacement for the jury’s formerly cramped deliberation room and another, connected by audio feed, serving as the gallery for press and other observers. Arguments were presented from the witness stand to make sure all the jurors could see.

The judge also found the perfect space for lawyers to sit — the jury box.