Daily Coronavirus Update: Court System Provides Recommendations for Restarting In-Person Court Proceedings

Daily Coronavirus Update: Court System Provides Recommendations for Restarting In-Person Court Proceedings

8.5.2020

By Christian Nolan

Good evening Members,

The Commission to Reimagine the Future of New York’s Courts, chaired by former New York State Bar Association President Henry M. Greenberg, has issued a report outlining recommended plans and goals for restarting in-person court proceedings, including grand juries and jury trials.

The Commission’s report entitled, “Goals and Checklist for Restarting In-Person Grand Juries, Jury Trials and Related Proceedings” includes step-by-step guidance on how to create customized court plans based on local conditions that prioritize public health and safety. The report also contains a comprehensive checklist on restarting trials, courthouse and courtroom access, jury pools, jury reporting and selection, among other key topics.

Before in-person trials restart, the report says to consider best practices for, and the implementation of, social distancing. They say to consult with local and state health officials on voir dire procedures, conducting trials, and maintaining safe distances for all participants.

“Create a diagram of the courtroom and other space intended for use by juries in consultation with health officials to accommodate social distancing and create a safe environment that instills confidence in jurors, staff, lawyers, witnesses, victims and all other participants that the health of all participants has been fully considered,” states the report. “For criminal cases, coordinate with local law enforcement to ensure that safe transportation of incarcerated defendants is possible, or if virtual appearances are appropriate and feasible.”

In determining where jury trials will take place, they recommend considering:

• Security;
• Connectivity (internet, A/V and other resources for wired courtroom capabilities);
• Restroom access and procedures that allow for social distancing;
• Safe entry and egress through elevators or stairwells; and
• Safe means of moving about within the facility.

When it comes to juries, the report recommends having jurors report later in the day or in a staggered fashion to avoid rush hour commuting and use the time for other court business; to consider ways to reduce exposure by having each jury panel report directly to the courtroom rather than to the jury assembly room and use a staggered schedule for jury panels to report.

They also recommend ways to reduce the time and number of jurors needed for in-person voir dire and to consider case-specific voir dire questionnaires that jurors complete remotely. Their answers could serve as a basis for making for-cause or peremptory challenges without the need for the juror to appear. Further, they recommend remote initial screenings to identify jurors who will be excused because of time, hardship, or a for-cause conflict.

Among the report’s recommendations for conducting a trial:

• Consider courthouse space and other available local facilities for trial and jury assembly and deliberations, and whether physical modifications are necessary and feasible to ensure compliance with social distancing and other necessary health protocols.
• Consider ways to keep groups from congregating in the courthouse.
• Consider conducting pretrial proceedings virtually either by phone or video, if possible.
• Establish procedures for jurors during trial and deliberations that incorporates everything from jury seating, to not allowing them to congregate during breaks or for meals.
• Establish rules for lawyers during trial that address everything from the appropriate use of masks, to handling sidebars and removing items from the counsel’s table at the end of the day.
• Determine rules for spectators in the courtroom based on available space.

The Commission, appointed by Chief Judge Janet DiFiore in mid-June to examine technological, regulatory and other long-term innovations, was also charged with providing short-term recommendations as the courts resume in-person operations amid the coronavirus pandemic.

The Commission is made up of six working groups: trials; appellate practice; online courts; regulatory innovations; structural innovations; and technology. The report was produced by the working group focused on trials – led by Court of Appeals Associate Judge Michael J. Garcia and Robert Giuffra, a senior partner at Sullivan and Cromwell− and then adopted by the full Commission. The guidelines and checklists contained in the report are based on the working group’s feedback, as well as on protocols developed by other state and federal courts across the country.

“The recommendations outlined in today’s report are an excellent starting point for New York’s judges, court administrators and relevant stakeholders to consider as the court system works to safely re-establish in-person operations,” said DiFiore. “I am pleased by the Commission’s efforts to date and look forward to its long-range proposals as we strive to deliver quality justice services to New Yorkers in today’s rapidly evolving society.”

“I am deeply grateful to the Commission for meeting the moment and producing in real time a report that will serve as a resource for trial courts and courthouses across the state,” said Greenberg. “It is imperative that our criminal and civil justice systems be as operational as possible under the circumstances, and that grand jury proceedings and jury trials are conducted in a safe and secure manner. To this end, the Commission’s report reflects its best efforts to provide useful support, guidance and assistance.”

COVID-19 Webinars

Friday, Aug. 7 – Borrower Beware: Defending PPP Loans From After-the-Fact Government Scrutiny.

Wednesday, Aug. 12 – Unemployment Insurance And COVID-19 Updates.

Thursday, Aug. 13 – Virtual Meetings: Best Practices For Corporations And LLCs.