While this isn’t directly appellate related, it is a big deal for the legal system in general: Jury trials are about to start back up in the state of Washington. On June 18, 2020 the Washington Supreme Court published an order that allows jury trials to resume again on July 6, 2020, for the first time since they were suspended statewide on March 20, 2020.
As the court noted, jury trials “are necessary to the open administration of justice in Washington.”
The court ordered a number of requirements to be met before jury trials can resume:
Potential jurors at higher risk must have the ability to defer jury service.
Jury trials must be conducted with the most protective applicable public health guidance in their jurisdiction (e.g. social distancing requirements, PPE requirements).
The use of remote technology for jury selection is encouraged, though any video or telephonic proceedings must be conducted consistent with the constitutional rights of the parties and to preserve constitutional public access.
Parties may stipulate off the record to hardship excusals of potential jurors and hardship excusals may be considered by remote means.
Jury selection may occur in multiple phases, as appropriate based on considerations of location, facilities, and applicable public health guidance.
And finally, the court also eliminated the right to additional peremptory challenges for alternate jurors in civil cases. Each side is entitled to the statutorily-mandated three peremptory challenges with no additional peremptories for alternates.
Per Civil Rule 47(b), each side was entitled to one additional peremptory challenge for 1-2 alternates to be seated, two additional peremptories for 3-4 alternates, and three additional peremptory challenges for 5-6 alternates. Not during the pendency of this order, however.
This is kind of a big deal. It’s not unusual for alternates to be seated, especially for longer trials. Alternates are usually seated because things like illness can come up unexpectedly during trials. Given that the state’s Covid-19 numbers are starting to creep back up, illness is obviously a real concern. But the court is also trying to balance the very real concern that more people than normal will just not show up for jury duty. So with smaller jury pools, this is likely the court’s way of limiting the number of potential jurors that can be removed.
Some counties, like King County (Seattle), are trying to find offsite facilities to host civil jury trials that are larger and can handle the social distancing requirements. I’ve heard King County will also conduct jury selection via Zoom. We are in unprecedented times and the courts are trying to think creatively about ways to have jury trials while maintaining the safety of everyone there. I hope it is successful.