Attorney Brendan A. Sweeney of Sweeney Law, P.A. Featured in the May/June 2021 Edition of the Broward County Bar Barrister – SOCIAL DISTANCING CIVIL JURY TRIALS, A DISCUSSION WITH THE HONORABLE GIUSEPPINA MIRANDA
Bottom line, jury trials are very sacred. They represent and are indicative of what a great nation the United States is, and of our invaluable constitutional protections. As Thomas Jefferson stated, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” The global pandemic has had an impact on how jury trials have been conducted and how they will be conducted in the future. As attorneys we all need to be aware that the way in which jury trials in Broward County are conducted is changing and will be a fluid process moving forward.
Recently, the Honorable Giuseppina Miranda conducted a breach of contract county civil trial utilizing social distancing procedures with everyone in the courtroom wearing a mask. Judge Miranda indicated that there were some very minor issues that came about, such as being uncomfortable wearing a mask all day, and increased time with jurors taking breaks; however, as a whole the trial was conducted rather smoothly. Judge Miranda credited this to the cooperation of the jurors, the professionalism and preparation of the attorneys involved, and the hard work of her staff.
One of the most important items that attorneys should recognize now with social distancing jury trials is that parties and attorneys need to be prepared well in advance, even more so than before the pandemic. The reasoning for this is that when the jurors are in the courthouse, they should be hearing the case or deliberating, they should not be waiting in the jury room for counsel to pre-mark their exhibits or get the jury instructions ready. Judge Miranda indicated that one of the reasons the social distancing trial went smoothly was that all the exhibits were pre-marked and provided a month in advance of the trial. This allowed for the time necessary to have the pre-marked exhibits put into a PDF format. Counsel seeking to introduce an exhibit into evidence during trial would simply advise opposing counsel please refer to the specific page of the PDF document and then proceed forward with having the exhibit introduced into evidence. The exhibit that is entered into evidence is then published to the jury through the monitors that are in front of each juror in the jury box. When the jurors go back to the jury room for deliberation, they will then be allowed to have the originals of the evidence with them. Additionally, consistent with being prepared in advance, all the motions in limine and all pre-trial motions need to be heard and ruled upon well in advance of the trial.
The physical layout of the courtrooms equipped to handle social distancing jury trials have been modified. Plexiglass now separates each juror seat in the jury box, plexiglass has also been installed in the Judge’s bench, as well as the witness and clerk benches. The times to take breaks will most likely be increased. Judge Miranda indicated that during her trial the jurors were allotted breaks and could only leave the courtroom three persons at a time. There is also a limit to two individuals at each counsel table. It is entirely up to the attorney whether they want to sit at counsel table with their client or sit with their co-counsel and have the client sit somewhere else in the courtroom.
Furthermore, with social distancing procedures there is a limit as to how many individuals can be in the courtroom during the jury trial. Currently, only the parties, their counsel, the jurors, the Judge, court staff, and the court reporter are allowed into the courtroom during trial. Family members, friends, or the public wishing to view the trial, have access by simply signing onto the Zoom link of the Judge that is conducting the trial.
Having an out of state witness appear for a trial that is on a three-week trial docket can be an incredible logistical and expensive hurdle, even without a global pandemic. Recognizing this issue, Judge Miranda permitted an out of state witness to provide trial testimony via ZOOM. This request was made well in advance of the trial and had support for allowing the testimony via remote video technology. There is judicial discretion concerning the allowance of remote video technology during trials, accordingly, any attorney seeking to have an out of state witness provide trial testimony via remote video technology should seek to have the Court’s permission for this well in advance.
One of the core issues during a trial is judging the credibility of a witness. It can be a difficult task during a trial, and the difficulty of assessing credibility is greatly increased when you cannot see the full face or mouth of a witness and are instead looking at someone wearing a facemask. A great number of plastic facemasks for witnesses have been ordered so that the credibility of a witness can be assessed just as attorneys and jurors have been doing so for hundreds of years, by looking directly at the face, mouth, eyes and overall facial expressions of the witness.
Attorneys need to be cognizant that the jury trial process in Broward County, Florida has changed and will continue to change in the future. Preparation well in advance will have a direct correlation to how smooth the trial will be. As such, we need to pay special attention and ensure that all exhibits are pre-marked, all pre-trial motions have been heard and ruled upon, that the jury instructions and verdict form are completed well in advance of the day of trial. As attorneys, we also need to make sure that we recognize that there will be new processes and procedures for jury trials in the future and to make sure we are reasonable, cooperative, flexible, and patient with them moving forward. Additionally, attorneys should be familiar with the Broward County Court Guidelines for In-Person Proceedings, http://www.17th.flcourts.org/ wp-content/uploads/2021/03/Broward-County-Court-In- Person Guidelines.pdf, and should be regularly checking the Broward County Courts Coronavirus Updates webpage, http:// www.17th.flcourts.org/coronavirus-covid-19-updates/.
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