Bar News Masthead

July 15, 2020

By Scott Merrill

The New Hampshire Superior Court will hold a pilot jury trial in Cheshire County next month and given the court’s concern for the safety of everyone involved it could be the cleanest courthouse in the state.

The New Hampshire Judicial Branch remained open during the declared Emergency Order that ran from March 13 until June 15 but saw significant restrictions in foot traffic in public courthouses, and the Superior Court put on hold nearly 1,000 jury trials. With new guidelines from the CDC and low infection rates in northern counties, the court began making plans to gradually resume jury trials, both grand and petit, starting in Cheshire County.

At the start of the pandemic, according to the Chief Justice of the Superior Court Tina Nadeau, the court was concerned with striking a balance between maintaining the right to a speedy jury trial and the safety of those entering the court rooms.

“One idea was to have a virtual jury trial,” Nadeau said, adding that constitutional concerns and the potential for technical glitches became apparent very quickly. “Some of the concerns about this were ‘how does a virtual trial effect the right to cross examine, and can the jury accurately examine the behavior of the witness while appearing virtually.’”

Potential technical problems included what to do in the case of a lost call and the difficulty, or impossibility, of identifying who was in the room with the juror.

“We decided to opt for a safe return to jury trials by following the CDC recommendations as well as those of the state’s chief medical officer,” Nadeau said. “We want to start with one trial and we’re doing jury selection virtually so that when we actually come in they will come in one member at a time for individual voir dire. This will cut down on a massive number of people being in the courtroom at one time.”

Voir dire is the Latin term that outlines the process involved for selecting juries. In normal times, this process involves a judge asking questions in a courtroom of over 100 potential jurors.

The court’s pilot jury trial will happen in two phases. Phase one includes jury selection and phase two will be the trial itself.

The selection of the jury will begin with a questionnaire and a summons explaining all of the safety precautions the court is taking. Jurors who wish to be excused for various reasons will be able to make their request. The remainder of potential jurors will receive a second questionnaire asking the questions a judge normally asks in court.

“The second questionnaire is not something we usually do,” Nadeau explained.  “We will ask them to respond to the questionnaire which will contain questions about COVID-19 and any health concerns they may have, as well as their willingness to wear a mask.”

At this stage, lawyers and judges will conference to agree on the group of people who come back to court.

“Our hope is that we have about 40-60 jurors that are qualified to come to court to be more thoroughly questioned,” Nadeau said. “This part of the process usually takes about a half hour to 45 minutes but it will probably take us a full day. We will have ten jurors come to court to be questioned every hour and they’ll either wait in their car, or outside, to come and be questioned.  From that group, we’ll come up with the 14 people, 12 jurors and two alternates.”

Selected jurors for the trial will be required to wear masks and to sit in the well of the court, where spectators normally sit, because jury boxes are not large enough to maintain social distancing.

“We’re going to see how this works out so we can adjust the plan for the next courthouse,” Nadeau said, explaining that tables in the courtroom will be rearranged so jurors aren’t facing the attorney’s backs. “Also, witnesses will be wearing a cloth face covering and a clear shield on their way to the stand. Once there, they will remove the mask so the jurors can observe the demeanor of the witness while testifying. Witnesses will be required to wait in their cars until it’s time to testify.”

The courthouse will be professionally cleaned each night and hand sanitizer will be placed throughout the courthouse. The bathrooms and the witness stands will also be cleaned regularly and bailiffs and judges will be masked.

The Court originally chose Coös County because of the low infection rates there but a case for trial couldn’t be found. This was mostly due to high turnover at the public defenders office, according to Nadeau, who said, she is hopeful the pilot trial will be successful.

“I am very hopeful. We’ve had a working committee on this since the middle of March and we have been constantly evaluating what’s happening in other states and receiving the input of the state’s chief medical officer as well as evaluating and checking the CDC’s recommendations regularly.”

The first walk through for a pilot jury will be conducted in late July with the first pilot trial planned for mid-August.

“Jury trials are the cornerstone of our democracy and provide the essential function of ensuring speedy and fair resolution of criminal charges,” said Judge Nadeau. “Delaying them has been a difficult but necessary response to the threat posed by the COVID-19 pandemic. Resuming them will require us to think differently about the process and to ensure restrictions are in place to keep all participants safe, while at the same time protecting defendants’ due process rights. These procedures must be ones we can implement and adopt until COVID-19 is no longer a threat to public health.”

For details on the plans for resuming jury trials, along with instructions to the potential jurors, see the NHJB website at www.courts.state.nh.us.