Drive down any street in America and you are likely to be greeted by businesses covered with wooden boards where the glass used to be. But courts cannot close like neighborhood restaurants or cleaners. The Sixth Amendment to the Constitution requires criminal courts to stay open because those accused have a right to a speedy trial. If that right is violated, the Court must dismiss the indictment or reverse a conviction.

But how is this fundamental protection applied during a pandemic? For the past year, court administrators have been struggling with ways to balance health and safety concerns with the need for speedy trials. These are especially important because courtrooms, by necessary design, usually contain large gatherings in small spaces—a perfect formula for super-spreading.

To further complicate the decision-making process, each federal district court and many courts in state justice systems have been on their own to figure out what to do. The resulting confusion resembles the chaos during vaccine distribution, when lack of comprehensive guidance from the federal government left inoculation decisions up to individual states. Currently, there are no uniform answers, rather a landscape of creative experimentation with rights to appeal any rules that might interfere with a fair trial.

To help the public and attorneys navigate current and rapidly changing COVID-19 regulations, local district courts, state courts and legal organizations have created a variety of websites and Twitter accounts. Potential jurors with computer skills and access can locate the timetables and rules that govern their appearances.

The American Bar Association (ABA) website, for example, explains the current situation and tells attorneys how to watch jury selection to assure fairness, and what to do if anything fails to assure constitutional protections. It informs visitors that “COVID-19 caused virtually all federal courts to close in March, 2020,” then continues then “People continue to commit crimes and (be) arrested.” It concludes, “A defendant’s right to a speedy trial, enshrined in the Sixth Amendment and codified in 18 U.S.C. § 3161, does not allow the criminal justice process to be delayed indefinitely.”

The ABA then lists the modifications that are being implemented to achieve the desired justice/public health balance. According to law, all changes must be designed to assure proper random selection of jurors who represent a cross-section of their communities. Also, requests for exclusions must be objectively reviewed.

With these guidelines, federal district courts moved forward in a variety of ways. Some district courts, such as the one in Massachusetts, automatically excused those in high-risk categories due to age or pre-existing conditions. Most others have informally given their clerks “discretion” to excuse jurors who provide valid COVID-19-related excuses.

But automatic excuses, like those based on age or the demographics linked to COVID, which show higher incidence in minority communities, pose problems as well as solutions. Automatic exclusions prevent the selection of the required random cross-section of the community. As a result, defendants may challenge the fairness of the jury selection process. Objections do not need not show the probable success of their motion, but trial counsel should request appropriate background information on members of the jury pool. Attorneys must file motions to dismiss before voir dire (questioning of potential jurors) begins. Improper denial of these motions may be raised on appeal.

This is helpful information for criminal defense attorneys. But what about jurors?

Unfortunately, prospective jurors who receive notices to serve have no simple answers about what to do, although some general suggestions might help. First, they should read the jury summons carefully, especially if they believe they might qualify for a COVID-19-related exemption. In Los Angeles County, for example, the summons asks for the potential juror’s age and health and explains the procedures for requesting an exclusion.

If an exclusion is not granted prior to the date of jury service, potential jurors should be able to find out whether their assigned courthouse is open by visiting the court websites or calling a phone number. For example, if a potential juror goes to the website for the United States Courts and then clicks on the name of their district court, and then on COVID, they will learn what is going on in their federal court system.

As an example, clicking on “Central District of California” informs a visitor that civil and criminal courthouses are open, but that all appearances in civil and criminal cases will be handled by phone or video conference unless the defendant does not consent. In that case, ten people may be present in the courtroom, where health and safety precautions, such as mask-wearing requirements and social distancing, are followed. A careful reading of the page will inform the juror that no civil or criminal jury trials are currently being conducted. If confused, a phone call to the courthouse might help.

Another example, from the Eastern District of Michigan, is similar, informing jurors that “although limited operations continue, all District Court locations within the Eastern District of Michigan are closed to the public at this time due to the COVID-19 pandemic.”

State courts are also trying to be helpful, but the plethora of individual courthouses with different rules makes navigation for COVID-19 information difficult. After being linked from one website to another in Los Angeles, for example, a juror would finally wind up being asked to view a video titled, “Here for You. Safe for You,” which touts new cleaning procedures, the availability of hand sanitizers, the requirements of social distancing and masks. It then directs potential jurors to their individual courthouse and provides a telephone number.

Similar goose chases occurred when trying to find out current jury rules in Alabama and Pennsylvania.

The bottom line is that a potential juror without computer skills or knowledge of how court systems operate might be just like a person seeking an appointment for a coronavirus vaccination: frustrated and worn down by confusion. Computer savvy and telephone savvy folks can probably figure out the status of their jury service. The balancing act will continue, at least for a while.