New Hampshire court officials are poised to resume jury trials in the near future with a pilot trial to take place in August in Cheshire County, officials announced this week.
Court officials identified the likely setting in a statement released Monday. The timing and location were announced along with the release of 22 pages of guidelines for running trials safely during the COVID-19 pandemic.
The rules range from mask-wearing (jurors yes, witnesses no) to how close a lawyer can get to a witness during questioning.
Jury trials are held in 11 superior courts, one for each county in the state other than Hillsborough County, which has two. In mid-March, the court system put them on hold via emergency order in the face of the pandemic. Cheshire County also will host grand jury hearings, where jurors meet in secret to consider evidence for felony indictments.
“Jury trials are the cornerstone of our democracy and provide the essential function of ensuring speedy and fair resolution of criminal charges,” Judge Tina Nadeau, chief justice of the New Hampshire Superior Court, said in a statement.
“Delaying them has been a difficult but necessary response to the threat posed by the COVID-19 pandemic,” she said. “Resuming them will require us to think differently about the process and to ensure restrictions are in place to keep all participants safe, while at the same time protecting defendants’ due process rights.”
Nearly 1,000 jury trials have been placed on hold, according to the court system.
The guidelines were worked out with input from prosecutors, defense lawyers and Dr. Jonathan Ballard, chief medical officer for the New Hampshire Department of Health and Human Services.
Although pretrial hearings have been held remotely over the past three months, the committee determined that virtual criminal trials could not pass constitutional muster, Nadeau said.
“With a thorough plan for sanitation and careful enforcement of mask wearing, social distancing and symptom screening, we think we have the necessary template for beginning in-person jury trials,” she said.
Manchester defense lawyer Donna Brown said the guidelines leave her with questions, such as whether jailed defendants have the first chance at trials. That normally would be the case, but jailed defendants carry a risk of bringing disease back to the jail, Brown said.
Brown has eight defendants ready to go to trial. She does not expect the floodgates to open.
“Everything takes longer during this process,” said Brown, who works at Wadleigh, Starr and Peters.
For example, every juror will be individually questioned before trial, a process usually reserved for murder trials.
Jurors will be expected to self-screen before arriving at the courthouse. If they become symptomatic at the courthouse they will be immediately excused and told to go to a doctor. In the event of COVID-19 exposure, a judge “will take appropriate action,” including the ability to continue with the trial.
During trial, witnesses will wait in their cars until they are summoned to testify. The witness stand will be wiped down after every witness.
Other guidelines discourage bench conferences, in which lawyers huddle with a judge to argue over objections. Jurors who normally sit side-by-side in a jury box will spread out for social distancing.
Attorneys must address witnesses from their tables but will be allowed to stand while making closing arguments so long as they maintain a safe distance from the jury.
The defendant has a right to be in the courtroom, as does the victim and at least one pool reporter.
Brown said some defendants will want to have their trials go forward to get them over with. Others are happy with the delays.
If all people who refuse to wear a mask are excused, that may make it difficult to have a jury reflect the community as a whole, Brown said.
Some say mask-wearing has become a political issue, with more libertarian, anti-authoritarian people choosing not to wear them. Depending on the case, a defense attorney may want to have exactly those people on a jury, Brown said.
Lawyers in a Texas case were poised to raise that issue on appeal, but the jury returned with a not-guilty verdict, she said.