Federal Jury Trials and Social Distancing - Updated with Q&A

Updated: Sep 27


On August 5, 2020, the San Diego Chapter hosted a free webinar titled "Federal Jury Trials and Social Distancing". The program featured United States District Judge Anthony J. Battaglia, who took attendees through the entire trial process from the prospective jurors entering the federal courthouse through deliberations by way of a mock trial. Attendees to the webinar were able to submit questions ahead of time and during the program. Approximately 495 people watched the event live. Included below are Judge Battaglia's responses to questions attendees submitted.

Q: Can attorneys wear a face shield while talking, instead of the mask? What about witnesses?


J. Battaglia: Yes, and should. Shields will be available for counsel. We saw the improvement in communication of counsel when they switched to shields on the video. Witnesses' demeanor cannot be assessed without a shield.


Q: Can the jurors all see the face of the witness sitting behind that podium?


J. Battaglia: Yes. It’s not clear from the video, but they see them clearly. The mock jurors preferred the “flip” arrangement for that reason.


Q: Will attorneys be able to stand in the well to address the jury during opening/closing? (Rather than standing behind mic at the table only)


J. Battaglia: Not in our current courtroom spacing plans.


Q: How many people will be allowed at counsel’s table? Where will overflow counsel be located?


J. Battaglia: Multi-party, multi-counsel cases will need to make special arrangements with the Court. The current courtrooms limit seating to 3 people per side.


Q: Where will court interpreters be seated?


J. Battaglia: Up to the judge. They will be at a safe distance on the outside of the defense counsel table or in the “flip” arrangement in the Marshal’s box or traditional witness stand. They will communicate by headset. If counsel need the interpreter to communicate with the defendant, that will need to be done during a break or recess.


Q: Will witnesses be provided with face shields for their testimony?


J. Battaglia: Yes.


Q: Will the court be providing jurors with N95 masks?


J. Battaglia: No, nonsurgical masks are used.


Q: Will attorneys be sequestered as well throughout the day?


J. Battaglia: No.


Q: Are the trials open to the public and family members?


J. Battaglia: Yes, in the public viewing space that will be provided.


Q: How do we prevent witnesses from going into the auxiliary room to watch the trial before they testify?


J. Battaglia: The Court Security Officers will monitor the room, and counsel will need to advise their witnesses to stay out.


Q: With the flip layout, my concern is that anyone entering the courtroom would be able to see jurors' notes. Is that being addressed? Perhaps by seating jurors away from the aisle.


J. Battaglia: It will be addressed by admonishing the jury to keep their notes to themselves.


Q: I'd like to see that DocCam screen and all other types of screens and also see how parts of exhibits are pointed to or marked up.


J. Battaglia: That can be arranged by the courtroom deputy by making an appointment.


Q: How about a laptop or screen that shows the attorneys the Judge's facial expressions?


J. Battaglia: The Court is installing a camera system that will provide views of the attorneys, parties and witnesses. The Court will utilize that to keep watch over the participants' behavior and facial expressions.


Q: Do you turn around to make objections?


J. Battaglia: Yes, in the “flip” configuration.


Q: Will there be wifi access to participants?


J. Battaglia: No.


Q: Do all of the courtrooms have the highest quality filters for ventilation?


J. Battaglia: Yes, according to the General Services Administration (GSA).


Q: I presume all masks will be uniform for the attorneys and parties so there is no way to have some influence by what is or might be on the mask?


J. Battaglia: Yes.


Q: The jurors all use the same microphone without a mask? What is to prevent the juror from putting particulates on the mic and the next juror from inhaling?


J. Battaglia: They are instructed not to touch the stand-up microphone. The shield adds protection.


Q: My question is how is a face shield protecting a witness's safety when they all sit in the same seat/air space?


J. Battaglia: Disinfecting the surfaces, including the microphone between witnesses, and socially distancing the witness from counsel is deemed adequate by the Court’s consultants.


Q: Are you concerned about the response to jury summonses? Will older people fail to report or ask to be excused? Will the jury panels really be representative?


J. Battaglia: The juror responses and requests for excuses will be carefully monitored by the Court.


Q: For civil trials, when jurors go home after each day, they risk exposing themselves to contracting COVID. In the event they do contract COVID and come back to court for the next day of trial, and spread it to the other jurors, what happens then? Are all the jurors replaced? Is the trial paused?


J. Battaglia: Jurors will be instructed to call if they become sick during the trial, and the Court and counsel will confer on a plan. A mistrial is likely if the juror tests positive for COVID-19 and quarantining of the jury is required.


Q: Have any resources been developed for how to do a socially distanced trial that involves a deaf person who needs to see mouths to lip read and to aid with sign language interpretation that relies on facial expressions as part of the language?


J. Battaglia: We can, and do, provide an ASL interpreter under existing Judicial Conference Policy. Witnesses will use shields and jurors can ask for a closer seat if lip reading is needed. Counsel also may use shields when speaking in the trial.


Q: What about out of state attorneys coming in for the trial and if there are travel restrictions by the State of California?


J. Battaglia: This needs to be discussed with the trial judge in each case where it is applicable.


Q: Has your group coordinated with the Superior Court in your planning?


J. Battaglia: No formal coordination has occurred. We are happy to share our materials and the video with that court.


Q: Does a jury trial violate the current public health orders in San Diego and California?


J. Battaglia: No, governmental activities are allowed, and County health protocols are being complied with.


Q: Don't we face all these same issues with Zoom depositions?


J. Battaglia: To a degree yes. Care should be taken to remove/isolate counsel and the witness from distractions and to ensure the quality of transmission. Unlike trial, however, the component of a jury listening in and compounding the problems is absent. Additionally, not all depositions are utilized in trial.


Q: I notice that the security guard handles the ID that is presented, without gloves, and that he stands within 6 feet while posing questions.


J. Battaglia: Thank you for the observation. We will fix it!

387 views

© 2020 Federal Bar Association, San Diego Chapter