Jury Selection in the Age of COVID-19. Peeking inside a black box of potential constitutional concerns.

• Author: Kirstin Ault
• Pages: 3-3

Appellate Practice

Winter 2021, Vol. 40 No. 1

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December 17, 2020

Jury Selection in the Age of COVID-19

Peeking inside a black box of potential constitutional

concerns.

By Kirstin Ault

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation.

Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all

coronavirus-related articles are outside our paywall and available to all readers.

The COVID-19 pandemic caused virtually all federal courts to close in March of 2020.

Nevertheless, the process of criminal justice did not come to a halt. People continued to

commit crimes and were arrested, and statutes of limitations continued to run. At first,

courts maintained bare-bones operations to deal with arraignments, detention, and other

urgent issues. But as the pandemic has worn on, it has become increasingly untenable for

criminal cases to remain on pause. A defendant’s right to a speedy trial, enshrined in the

Sixth Amendment and codified in 18 U.S.C. § 3161, does not allow the criminal justice

process to be delayed indefinitely.

However, the primary concern of the pandemic—the need to avoid large gatherings in

enclosed spaces to limit the virus’s spread—makes resuming criminal cases exceedingly

difficult. The American criminal justice system is founded on community participation in a

process at which the defendant and all key participants must be personally present.

Courts have begun taking steps to restart the criminal justice process by implementing

procedures to minimize the risk that in-person proceedings will expose the participants to

COVID-19. These changes in standard criminal practice implicate the constitutional rights

of criminal defendants in a variety of ways. Some of the most important changes are the

modifications, formal and informal, to the jury selection process.

Jury Selection: Basics

Under the Jury Selection and Service Act (JSSA), 28 U.S.C. § 1861 et seq., each federal district

court is required to devise a plan for the random selection of grand and petit jurors. 28

U.S.C. § 1863. Technical violations of the plan do not constitute failure to comply with the

JSSA if they do not interfere with the requirements that (1) the jury represent a fair cross

section of the community and (2) excuses from service be made on an objective

basis. United States v. Savides, 787 F.2d 751, 754 (1st Cir. 1986); United States v. Gregory,