A special committee is recommending that trials be held with smaller juries for about two months once trials resume in state courts in Massachusetts, where they’ve been on pause since mid-March due to the pandemic.
Halving juries from 12 to six jurors for civil cases and criminal matters involving minor charges is among the recommendations the Jury Management Advisory Committee submitted July 31 in a 122-page report to the Supreme Judicial Court.
Before taking action, the SJC will accept public comments on the recommendations. More information on the comment period is available online.
Jury trials in state courts are slated to resume no sooner than Sept. 8, according to the report, and the committee recommended that they begin in phases.
The first one, called Phase 0, would serve as a “mock run-through of the entire process” and is targeted for mid-August. In Phase 1, civil trials and criminal cases involving minor charges against people who are not in custody would move forward with six-person juries (up to eight with alternates), the committee recommended.
Trials would be conducted one at a time in a small number of locations for about two months, barring changes in health data, according to the report. During Phase 2, trials would go forward in the same limited number of locations, along with additional courthouses, the committee recommended.
“Locations would include those with space sufficient for juries of 12 (14 or 16, with alternates),” the report said. “Cases tried would be those that have the highest priority, including serious criminal cases with defendants in custody, youthful offender cases, and civil cases of particular significance.”
Phase 2 would last two to four months before the court system moved into Phase 3, which “would consist of conducting as many trials as possible in all locations that meet” safety criteria, the report stated.
Non-courthouse spaces “may be increasingly necessary to address the case backlog if the pandemic continues substantially into 2021. Phase 3 would continue until the health threat from COVID-19 ends because of either widespread vaccination or herd immunity,” the report stated.
The average number of juries impaneled from March 13 to Sept. 8 during 2017, 2018, and 2019 was 1,849, the report stated.
Denise I. Murphy, president-elect of the Massachusetts Bar Association, said the recommendations took the “appropriate level” of precaution. Murphy said the committee correctly recognized trials would be “adversely impacted” by jurors not being physically present in the courtroom and credited the panel with devising a plan to resume trials as safely as possible.
“I think they’re doing it in a cautious way,” said Murphy, who takes over as association president Sept. 1. “There are defendants out there with a constitutional right to trial who also need to be safe” during the proceedings.
In a statement. Chief Justice Ralph Gants of the SJC thanked the committee, which consisted of seven judges and Jury Commissioner Pamela J. Wood, for producing a “thorough and thoughtful report in a short period of time.”
The report cited a number of factors court officials should consider in selecting courthouses for each phase.
“Locations should be selected primarily based on environmental and engineering controls . . . and capacity for occupancy and internal circulation by the necessary number of people, with required distancing, in each of the spaces required for each part of the process,” the report stated.
The committee noted the importance of resuming jury trials.
“National research shows that a court’s ability to provide firm trial dates correlates with shorter times to disposition in civil and felony cases, in urban trial courts,” the committee wrote.
“Moreover, the availability of a timely jury trial is essential to public trust and confidence in the court system, which, in turn, are essential for the courts to ‘fulfill their mission’ and ‘perform their functions.‘ ”
Christine M. Netski, president of the Boston Bar Association, said in a statement that resuming trials will be challenging.
“Getting the justice system up and running at full speed will require lawyers and judges to face challenges we’ve never faced before,” Netski said. “We are glad the Court is looking for help from lawyers, and we look forward to reviewing the report and participating in the process.”