New Hampshire’s top court officials say Superior Court jury trials and grand jury proceedings can resume next month, but familiar processes — like jury selection, witness testimony and bench conferences — will look historically different.
In-person hearings have been on hold since mid-March as part of the state’s effort to stop the spread of COVID-19.
Nearly 1,000 jury trials are now backlogged as a result, according to officials.
The reopening of courts months after their sudden closure will happen in accordance with a roll-out plan outlined in The State Court Jury Trial Plan, a 22-page document developed to ensure the health and safety of court workers, attorneys, visitors and all individuals.
A committee of two judges, two clerks and administrative staff have met weekly since March to solidify the plan.
“This document will guide you step by step through planning and organization until the new policies and procedures that protect the health and safety of all participants have been well established and run smoothly,” it reads.
The precautions begin with jury selection. The initial letter sent to prospective jurors will include a requirement to wear a mask, and will ask for notification from those unable to wear a mask or unwilling to do so.
Rockingham County Attorney Patricia Conway acknowledges that attempts to avoid public courthouse will likely to be plentiful.
“One of the biggest challenges is going to be finding jurors willing to come and serve,” she said. “The number of citizens in our county who are scared to be in close proximity to people in a public building — although we’re taking a lot of measures — is pretty high.”
Chief Justice Tina Nadeau will liberally review all requests to be excused or deferred until the court has more experience with these types of questions, she said. A more specific deferral and excuse policy will eventually be put in place.
Jurors will go online to view general instructions and complete a survey acknowledging their responsibilities. A supplemental jury questionnaire will also be taken and submitted virtually.
Prosecutors and defense attorneys will review each submission during a virtual hearing with a judge before a total of 60 jurors are summoned to the courthouse for voir dire, a preliminary examination of a witness or a juror by a judge or counsel.
In hour intervals, they will be let in 10 at a time.
Jurors will wait in their cars until receiving a text or indication that they may enter for a health screening and questioning.
The plan outlines how attorneys and defendants can interact during trial, which can change based on individual social distancing preferences.
Mask removal is permitted only at the counsel table. Attorneys and their clients can communicate through pen and paper or a laptop provided by the court.
Conway said the measures were designed to protect defendants' Constitutional rights, like consulting with an attorney.
“And if someone says they felt like that right was taken away from them, a conviction could be overturned,” she said. “That would be catastrophic to everyone involved.”
As a “last resort,” the policy allows attorneys requiring strict social distancing to meet with clients in a conference room.
Lawyers are allowed to wander around the courtroom, but must do so with social distancing recommendations in mind.
Witnesses scheduled to testify in a trial will wait outside the courthouse until receiving a call or text message that it is time to enter.
Once inside the courthouse, witnesses will wear a cloth face mask and a face shield. The cloth must be removed while testifying. If available, clear face masks can be worn by witnesses.
The plan requires the witness stand be wiped down between uses.
When possible, copies of exhibits will be provided to witnesses, jurors and opposing counsel in order to prevent multiple people from touching shared objects.
In instances when shared objects cannot be avoided, people will sanitize their hands before touching. Gloves will not be worn, per recommendation of the state chief medical officer.
If a bench conference is necessary — to discuss an objection, for example — lawyers and the judge will leave the courtroom and go to a location large enough for social distancing. A court monitor with a handheld recorder will accompany to keep a record of what is discussed.
When it comes time for jury deliberation, that will happen in the courtroom, not a separate, smaller room which is typical.
Security cameras will be shut off while jurors deliberate with masks on, while socially distancing.
The court will provide safe, social distancing access to any victim, having a statutory right to be present during a trial. They will have priority seating over all other members of the public.
Courtroom access will be provided to at least one pool reporter to cover proceedings in person.
Specifics of who else is allowed in the courtroom have yet to be determined.
Court officials say they must consult with a public health professional after determining space constraints and the location of jurors.
That means a defendant’s family may or may not be able to watch a trial.
Any additional spots — after family — will be allocated on a lottery basis to all other interested observers.
“It’s a bit overwhelming, all of it,” Conway said. “But we’re not living in a perfect world right now, and I think this is a good plan to get us back on track.”