By Hon. Sarah Weyland Ellis and Hon. Michael A. Vitale
March 2020 began an unprecedented time in the history of the Massachusetts court system. Due to the COVID-19 pandemic, our court system was forced to balance the health and safety of people in our courthouses and the imperative of providing access to justice. Accordingly, jury trials were suspended, initially for weeks and then indefinitely. Trial Court Departments were taxed as they continued to address the daily flow of emergency business with reduced staffing schedules designed to limit contagion. For many of us working every day in the courtroom setting it was both alarming and difficult as various courthouses closed and reopened in response to court employees and users contracting the virus. For broad categories of court business, courthouses were largely closed to the public until July 2020. During this time, the Jury Management Advisory Committee (“JMAC”) played an active role in advising the Supreme Judicial Court (SJC) on measures to reinstate jury trials in this challenging climate. What we learned may make it easier in the future to pivot into a crisis response model that allows us to conduct jury trials with remote features and enhanced safety precautions as needed.
JMAC is a standing committee of the SJC established by G.L. c. 234A, § 6. It consists of six members appointed by the justices of the SJC, drawn from among the justices of the Trial Court departments or the appellate courts[i] JMAC has three primary mandates: (1) assist and counsel the justices of the SJC in their supervision of the Office of Jury Commissioner (OJC); (2) provide direct supervision of OJC in the performance of its statutory duties; and (3) supervise OJC on any matters delegated by the Chief Justice of the SJC.
After jury trials had been suspended due to the pandemic, the SJC asked JMAC to propose a series of recommendations for the phased reinstatement of jury trials across the Commonwealth. These recommendations were offered in reports later published and made public here.
Balancing competing considerations
Compelling citizens to appear for jury duty during the pandemic raised obvious health and safety concerns. It was a challenge to reconcile the imperative of public pandemic protections with criminal defendants’ due process and speedy trial rights and civil litigants’ rights to a jury trial. JMAC needed to reimagine how cases could be impaneled and tried in new, but fair ways. As the court system necessarily prioritized the trial of certain criminal cases, it was also apparent that it needed methods to provide civil litigants with their day in court.
To arrive at its recommendations, JMAC consulted with experts in epidemiology, infectious disease control, and healthy building modification.[ii] JMAC considered public health strategies including mask use during trials, the availability of COVID testing for jurors and trial participants, reducing civil juries in the Superior Court to six jurors, providing the Jury Commissioner with authority and discretion to excuse summoned jurors upon request for COVID-related reasons, and alternatives to in-person jury trial proceedings.
JMAC and OJC also engaged in extensive information gathering, including a review of OJC data on past jury trials and data from the Trial Court Department of Research and Planning (DRAP) on pending cases awaiting trials. JMAC also collected data about courthouse facilities from the Trial Court Facilities Department and employees familiar with individual locations. JMAC communicated with court leaders across the country to learn about their innovative approaches and ideas. JMAC also held a series of listening meetings on the Zoom video-conferencing platform to solicit perspectives, concerns, and ideas from criminal and civil attorneys, Trial Court officials, and other system stakeholders. From these sessions, it was apparent that the Trial Court professional community was committed to identifying and developing acceptable methods to reinstate jury trials.[iii]
In addition to a plan for phased reinstatement of in-person jury trials, JMAC ultimately recommended a pilot program for the remote impanelment of jury trials that was authorized by the SJC and adopted by the District Court. This article will examine the remote juror impanelment process for criminal cases piloted in the Greenfield and Plymouth District Courts, and a fully remote civil jury trial conducted in Brockton Superior Court and highlight key learning points. It also will address briefly the SJC opinions on due process in remote court procedures and some limitations encountered in expanding remote impanelment procedures, including the hesitation of litigants and defendants alike to engage in the process.
Laying the foundation for remote court proceedings
The Massachusetts unified court system, in which a Chief Justice and a Court Administrator serve all Trial Court departments across the Commonwealth, is relatively unique. OJC is responsible for summonsing jurors for all state courts. Thus, pandemic-related responses and innovations needed to be implemented on a large scale but with consideration of needs specific to geographical regions, courthouses, and Trial Court departments. As the court system contemplated how to hold jury trials during COVID-19, certain obstacles were endemic.
Jury pools posed a particular challenge. Prospective jurors travel from across the county to sit together as a large group in the jury pool room before impanelment even starts. Our modern courthouses typically have large jury pool rooms and spacious elevators. But modern multi-use courthouses need a high volume of jurors to hear trials across Trial Court departments. Our historic courthouses often have smaller jury pool rooms, hallways, and elevators, making it difficult to provide for any real social distance. Workable solutions, such as staggered appearance schedules for jurors, alternating trial days between court departments, and converting unused courtrooms and other large courthouse spaces into jury pool rooms resolved some issues. While some options necessarily lengthened the duration of impanelment, they did limit the contact between potential jurors prior to trial. The Trial Court also addressed courthouse occupancy levels by borrowing courtroom space in the John Joseph Moakley United States Courthouse[iv] and leasing alternative facilities to convert into courthouses.[v]
While generating plans for in-person trials, the Trial Court simultaneously worked on expanding the ability to hear cases remotely. As a predicate to launching and bringing to scale the many remote courtroom procedures that were initiated during the pandemic, the Trial Court needed to address key IT infrastructure issues. The Trial Court significantly expanded internet bandwidth in the 95 courthouses statewide to support multiple platforms over a two-year period, including Polycom video conferencing, Zoom video conferencing, Masscourts, For the Record courtroom audio recording, Court FM audio storage and playback, electronic docketing, civil e-filing, and the filing of criminal pleadings by email to employees in the various clerk’s offices. Other IT challenges the Trial Court tackled included internet and intranet security, the integration of language interpretation into video and audio electronic platforms, and the deployment of laptops, courtroom desktop computers and monitors, portable audio recording devices, and video cameras in courtrooms across the Commonwealth. These infrastructure expansions were necessary to support our evolution into a court system that could bridge the pandemic breach electronically. The expansions took funding and time to initiate and implement.
Creating and launching remote impanelment
Once achieved, this increase in available technology allowed for the implementation of a remote jury impanelment pilot program which explored the efficacy of using video conferencing to winnow a jury pool of 20-30 prospective jurors to eight impaneled jurors (six seated plus alternates). In February 2021, with the assent of all parties, impanelments in two criminal jury trials were conducted using a hybrid of remote and in-person participation before Judge William F. Mazanec, III, in Greenfield District Court, and Judge Michael A. Vitali in Plymouth District Court. For comparison purposes, Greenfield used a technology-equipped courtroom and Plymouth used a traditional one. Special procedures and instructions were discussed and agreed to with trial counsel in advance.[vi]
OJC gave prospective jurors the option to appear in-person or remotely, sending remote venire-members a Zoom link, log-in instructions, and instructions for downloading, completing, and securely uploading the confidential juror questionnaire on secure file-sharing software. Those who did not designate a preference were treated as in-person, and jurors who did not respond at all were treated in accordance with existing juror walk-in policies. A technology clerk was available to remote jurors by email and telephone for any technology questions. In the Greenfield District Court impanelment, the jury pool divided equally between jurors who elected to appear by Zoom and those who appeared in person. This was attributed in part to Internet connectivity limitations in rural parts of Franklin County. In the Plymouth District Court impanelment, the jury pool was 60 percent remote.
To ensure that neither in-person nor remote jurors were prioritized, juror numbers were assigned randomly across those participating remotely and in-person. To start the impanelment, the session clerk and the technical clerk admitted each juror to the Zoom platform individually, changing each username to the person’s juror number. Receipt of each confidential juror questionnaire on the secure server was confirmed by the clerk. Each juror was then placed in a virtual waiting room, with status updates posted by the clerks on the room’s home page. Court officers brought in-person jurors into the courtroom.
The trial judge introduced the impanelment and provided instructions to both sets of potential jurors simultaneously from the courtroom, using video conference via laptop on the bench for the remote jurors. Instructions specific to COVID-19 and the bifurcated process were created for the pilot program. The judge asked general voir dire questions of the venire at large, including several COVID-19 specific questions. Access for the public was provided in both trials by in-person socially distant seating, and in the Plymouth District Court impanelment by way of an open YouTube channel. Screens connected to the video conference feed allowed the attorneys, the defendant, and the public seated in the courtroom to see the prospective jurors. In the Plymouth District Court case, the defendant used a tablet both to see the jurors and to be visible to the pool.
The trial judge then posed individual voir dire questions to each juror. In-person jurors were brought into the courtroom individually by juror number, and each juror on video conference was admitted from the virtual waiting room in turn. Ultimately, each impaneled jury consisted of a mix of the in-person and video-conference jurors. All seated jurors were instructed to appear in the courthouse the following morning to commence the trial in-person. The remaining members of the venire were excused.
The remote impanelment pilot program showcased the court’s flexibility. Allowing jurors to fulfill their jury duty from home, or a similarly private location, was a novel approach to a seemingly intractable problem. Employees who volunteered to learn the nuances of the now ubiquitous Zoom platform made themselves available to help jurors experiencing technical difficulties. Jurors could appear on Zoom without a mask, while jurors in the courthouse, at that stage of the pandemic, were required to wear masks throughout the trial. Feedback elicited after the trials from jurors who participated in remote impanelment was overwhelmingly positive.
While the District Court pilot focused on remote jury impanelment in criminal cases, the Superior Court piloted a fully remote civil jury trial. The civil trial, presided over by Judge Daniel J. O’Shea, was held on video conference from start to finish. The parties agreed to the format, not only for impanelment, but for the entire trial. Procedures like those in the District Court pilot were used to impanel the jury completely on Zoom. The parties relied on file-sharing software and the share screen Zoom function to display and provide the jury with trial exhibits, including a video exhibit. Witnesses testified by Zoom. At the conclusion of the trial, the jury was provided with the verdict slip via file share. They deliberated in a Zoom breakout room kept private by the clerk, and they signed the verdict slip electronically. This trial demonstrated that remote civil trials can be a viable solution that promotes access to justice during exceptional historical times.
Questions and concerns about remote impanelment
The remote procedures piloted provided access to justice when in-person proceedings were restricted and delayed. They allowed trial participants to view jurors without masks. Attorneys could preview juror questionnaires prior to trial. Jurors were enthusiastic to serve. Those without smart devices or a private space were provided with alternative methods of participation. Other states implemented remote jury trial procedures during the pandemic that remain in use today.[vii] Developing the pilot programs was labor intensive, but the process provided a template for future expansion. In evaluating the utility of future remote impanelment proceedings, however, certain questions arise. If remote jury impanelment procedures were safe, cost effective, and more efficient than other options, why didn’t we adopt them universally?
The first set of concerns relate broadly to due process and fairness. Does video conference appearance detract from our ability to select a fair and impartial jury? Do jurors understand the gravity of the impanelment process if they are participating from their homes or a nontraditional space such as a library or courthouse Zoom Room?[viii] The SJC has addressed whether constitutional rights are impacted by video conference participation in three cases.
In Vazquez Diaz v. Commonwealth, 487 Mass. 336, 340 (2021), the SJC held that a suppression hearing conducted over a video conferencing platform during the COVID-19 pandemic was not a per se violation of a defendant’s rights to confrontation, presence, public proceedings, or effective assistance of counsel. In Commonwealth v. Curran, 488 Mass. 792, 799 (2021), the SJC held that use of a video-conferencing platform in a criminal defendant’s bench trial did not create a substantial risk of a miscarriage of justice. The SJC recognized, however, that a criminal defendant’s constitutional rights may be implicated when critical stages of court proceedings are conducted remotely, and it provided guidance that judges obtain the assent of a defendant participating in a bench trial remotely. In Adoption of Patty, 489 Mass. 630, 645-648 (2022), the SJC held that a termination of parental rights bench trial conducted over an Internet based video conferencing platform, when the mother only had intermittent telephone access, violated the mother’s due process rights because inadequate measures were taken to ensure she had access to the technology necessary to participate and view documents and evidence.
The issue of whether remote jury impanelment procedures violate any constitutional rights has not been reviewed by the Appeals Court or SJC.
Assent of the parties
A second impediment was that litigants remained wary of agreeing to participate in remote jury trial procedures. Our pilot program was conditioned on the assent of the parties. While the court system had the capacity to conduct a greater number of remote jury impanelments, identifying cases in which both sides would agree to these procedures proved challenging. Some parties were reluctant to agree to remote impanelment because, as discussed above, they questioned whether remote impanelment procedures were constitutional. Some criminal defendants, particularly those not in custody awaiting trial, may have weighed the costs and benefits to remaining at liberty during the pendency of a longer trial date and decided to wait for in-person impanelment. Also, an atmosphere of waning pandemic restrictions disincentivized an expansion of the remote impanelment pilot. Finally, unless attorneys watched one of the trials in which remote impanelment procedures were used, they may have found it difficult to envision the procedures. It is understandably difficult to agree to jury trial procedures in the abstract.
The technology divide
A third concern was how remote impanelment procedures accounted for the technology divide. Specifically, would limitations faced by people who could not access private locations, stable Wi-Fi, and smart technology exclude such jurors unfairly from jury duty? The pilot program addressed this concern primarily by using a hybrid of in-person and remote proceedings. It was difficult, however, to evaluate whether socio-economic demographics impacted which jurors elected to appear in person versus on Zoom. The pilot program also promoted the use of courthouse and library Zoom Rooms, and made available a technology clerk, who acted as a help line for jurors who encountered difficulties with remote participation. As we have continued to run various court sessions with remote features over time, some of these concerns have been addressed or mitigated. If future remote impanelment procedures were adopted, the Trial Court could investigate additional measures to provide access to technology, including access to smart devices on data plans and expanded Zoom Room locations.
If the Trial Court were to consider expanding upon remote impanelment procedures in the future, the good news is that the necessary Trial Court IT infrastructure is now in place. Additionally, Trial Court employees have developed expertise in the use of Zoom, and many court users and members of the public are now facile in using this technology. Litigants and members of the bar have requested the Trial Court’s continued use of video conferencing for various types of court hearings because it is easy to access and saves significant time and money. The positive feedback from jurors in the remote impanelment pilot highlight how the use of video conferencing during impanelment could expand juror participation and enthusiasm for jury duty.
But other issues remain, including whether smart devices with video conferencing could be made available to jurors, whether public access video conferencing terminals could be made widely available in courthouses and expanded public locations, and whether attorneys could be provided with advance access to confidential juror questionnaires through the secure file–sharing software. The Trial Court would need to educate the bar on remote impanelment procedures through outreach and communication efforts, such as this article. Taking the pilot to scale across the court system would require a continued resource commitment and more of the innovation and dedication demonstrated by many Trial Court employees during COVID-19.
The pilot program was successful in that it provided a workable model for impaneling a jury trial during a global pandemic. This template raises questions about possible future uses of remote impanelment and whether such procedures should be used only if necessary, or whether there would be utility in a hybrid remote impanelment model for use in regular practice.
Faced with the daunting task of compelling the appearance of citizens to convene together while protecting litigants’ rights to a fair and impartial jury, the SJC and JMAC turned to innovation, technology, and the industriousness of Trial Court employees to provide access to justice during the State of Emergency. The pilot trials discussed in this article offer a starting point to explore the future use of remote impanelment. JMAC invites dialogue with the legal community and the public to foster education and collaboration on increasing access to justice for all in Massachusetts.
[i] JMAC currently consists of Judge Sarah W. Ellis, Superior Court (chair); Judge David J. Breen, Boston Municipal Court; Judge Mark C. Gildea, Superior Court; Judge Jane E. Mulqueen, Superior Court; Judge Gloria Y. Tan, Juvenile Court; and Judge Michael A. Vitali, District Court. Non-judicial, non-voting members include Pamela J. Wood, Jury Commissioner, and Christine P. Burak, Legal Counsel to the Chief Justice of the Supreme Judicial Court. During the pandemic, JMAC was chaired by then-Chief Justice Judith Fabricant (now retired), Superior Court, and included Judge David Ricciardone (now retired), Superior Court; SJC Justice Serge Georges, Jr., then of the BMC; Judge Kenneth J. Fiandaca, BMC; and Judge William F. Mazanec III, District Court. Other JMAC participants include James Morton, Senior Assistant for Judicial Policy / Chief of Staff of the Trial Court; John Cavanaugh, Deputy Jury Commissioner (now retired); Kara Houghton, Legal Counsel to the Jury Commissioner; and Tanisha Perkins, Administrative Coordinator to the Office of Jury Commissioner and JMAC scribe.
[ii] JMAC benefited from the experience of Dr. Joseph Gardner Allen, Associate Professor and Director of the Healthy Buildings Program at Harvard T.H. Chan School of Public Health, and Trial Court consulting infectious disease specialist Dr. Michael Ginsberg of Norwood Hospital. JMAC also obtained the views of Massachusetts Department of Public Health officials.
[iii] This article focuses on jury-related efforts. Several Trial Court departments held bench trials remotely by video conference throughout the pandemic. These included small claims, small claims appeals, summary process, and other civil cases in which parties opted for a remote bench trial.
[iv] The Superior Court conducted eight criminal trials at the Moakley United States Courthouse during the pandemic. This was done with the permission and collaboration of Chief Judge Dennis F. Saylor and Clerk Robert M. Farrell of the United States District Court, District of Massachusetts, and coordination by Suffolk Superior Court Criminal Regional Administrative Judge Robert L. Ullmann and Suffolk Superior Court Clerk Magistrate for Criminal Business Maura Hennigan and First Assistant Clerk Edward J. Curley. The trials were impaneled in the Suffolk Superior Court and then tried and deliberated in the Moakley federal courthouse.
[v] Converting function rooms and other leased spaces into courtrooms involved significant cost and effort, including for the Trial Court Facilities Department (constructing courtrooms and supplying furniture), Security Department (coordinating transportation of detainees, creation of holding cells, securing courthouse entrances, conducting perimeter sweeps), Judicial Information Services Department (providing remote access to MassCourts and installing For the Record recording systems), clerk’s offices (securely moving files and evidence, including firearms and narcotics), and OJC (manually managing large scale processes that were previously automated, creating site-specific juror notices, and responding to juror inquires and concerns).
[vi] District Court Deputy Court Administrators Philip McCue and Joseph Jackson, District Court General Counsel Bethany Stevens, Clerk Magistrate Kenneth Chaffee, Assistant Clerk Magistrate Stephen Sloan, and Assistant Clerk Magistrate Brendan Barnes were pivotal in developing and implementing the procedures for the remote jury impanelment pilot.
[vii] The King County Superior Court in Washington State continues to use remote jury impanelment procedures. The New Jersey Courts continue to use Zoom for the first part of jury selection.
[viii] During the pandemic, the Trial Court established public access terminals in seven courthouses and partnered with public libraries statewide to provide court court users access to various virtual court services, such as remote hearings, virtual counter service in the Probate and Family and Housing Courts, and court service centers. Fourteen library branches participate, with more expected in the future. A library kiosk project is underway in Springfield public libraries via a grant through the Western New England School of Law. These are referred to as “Zoom Rooms.”
Hon. Sarah W. Ellis is an Associate Justice of the Superior Court and the Chair of JMAC. Judge Vitali is First Justice of the Brockton District Court, a Regional Administrative Justice of the District Court, and a member of JMAC.
Hon. Michael A. Vitali is a Regional Administrative Judge and the First Justice of the Brockton District Court. He is a member of the Jury Management Advisory Committee.