Florida’s Judicial Covid Problem Could be a Sixth Amendment Issue

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Florida’s Judicial Covid Problem Could be a Sixth Amendment Issue

Florida began its Pilot Trial Program in the 11th Circuit Court in Miami on July 9th with virtual voir dire, or jury selection. The pilot case involved an insurance dispute resulting from Hurricane Irma. Jury selection was conducted remotely, and broadcast on YouTube. It took place over various time slots throughout the day. Present in the Zoom call sat the judge, attorneys for both parties, and the potential jurors participating from home. Each time slot brought a new batch of potential jurors to be questioned by trial counsel. The jurors who were chosen came to the courthouse and took in the trial proceedings in person.

If you want to see how the Court maintained social distancing during the trial, you can see portions of the proceedings on the 11th Circuit’s Youtube channel below.

It is important to note that this Pilot Program was not a criminal trial. In its July 2nd Administrative Order regarding Covid-19 measures for Florida State Courts, the Florida Supreme Court’s first “Guiding Principle” for state court judges reads “The presiding judge in all cases must consider the constitutional rights of crime victims and criminal defendants and the public’s constitutional right of access to the courts.” I highlighted “in all” because I believe once we are able to conduct trials again, criminal trials will take precedence over civil trials given the constitutional rights that are at stake. Before any criminal trials take place, certain issues need to be considered.

Will a Defendant’s constitutional rights be violated if their jury has been selected over Zoom?

The Sixth Amendment to The U.S. Constitution provides certain rights to criminal defendants. A jury pool must represent a fair cross-section of the community. A defendant could show their right has been violated by establishing that a certain group of the community has been excluded from jury participation. By conducting voir dire online, an argument could be made that potential jurors who do not have access to the technical equipment necessary to participate are being excluded.

Will a defendant’s right to confront witnesses be violated if the witness is testifying remotely?

Normally, a defendant has the right to confront witnesses, live at trial. The Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990) held a violation of this right could be avoided in the absence of in person confrontation if 1. the testimony is reliable and 2. The absence of the confrontation is necessary as a matter of public policy.   If, for any reason, Covid-19 were to deny a defendant’s right to confront a witness, it could be permissible if the Court found that reason outweighed the defendant’s right to confrontation. This type of discretionary decision will no doubt be ripe for appeal.

It is my opinion that there are far bigger hurdles we must overcome before we will be seeing criminal cases tried as opposed to civil trials. The need to open courts up as fast as possible will need to be measured against public safety and protection of constitutional rights. Look for the Supreme Court to be confronting some of the issues in the coming years.