The Sixth Amendment criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal jury trials. Prior to the pandemic, critics generally ascribed the decline in criminal jury trials to two sources, first the “trial penalty,”—the substantial difference between the sentence offered prior to trial versus the sentence the defendant receives after trial—and second, the unfettered abuse of the Speedy Trial Act by prosecutors, defense attorneys, and judges. Both of these sources have had the effect of pressuring criminal defendants to plea or otherwise delaying the accused’s ability to obtain a jury trial. The COVID-19 pandemic caused national criminal jury trial rates to plummet further, with some states or jurisdictions nearing or reaching zero. Several courts throughout the country contemplated or implemented procedures to continue conducting criminal jury trials, including trials that were (1) socially distanced and in-person; (2) conducted by video conference technology; or (3) a hybrid model of video conference jury selection with socially-distanced/in-person trial. This Article argues that the pandemic served as a type of stress test, revealing the inability of the criminal justice system to ensure the criminal jury right. Thus, the pre-pandemic problems, even if eliminated, will not solve the Sixth Amendment problems presented during the pandemic environment. The Article also argues that pandemic solutions to increasing criminal jury trial rates, while noble in intention, still likely force the accused to either waive his Sixth Amendment rights or choose the speedy trial right at the expense of the confrontation right or jury right, potentially causing prosecutors and defense attorneys to shirk their ethical obligations to seek justice or zealously represent their clients. Furthermore, because the Supreme Court’s rejection of a “functionalist assessment” of Sixth Amendment rights in Ramos v. Louisiana likely calls into question the constitutionality of such measures, greater action is needed to ensure a pandemic-proof criminal jury right. Indeed, while the vaccine may be a cure for the virus, it is not a cure for the problems it caused to our criminal justice system. Accordingly, to ensure a pandemic-proof criminal jury right, Congress should enact measures to end the trial penalty, provide courts and parties with a meaningful ability to enforce the Speedy Trial Act, and most importantly, amend the Constitution to create a criminal jury right that allows courts to conduct jury trials via video conference.
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Sep 10, 2024
Minh Kỳ Võ + 1
Open Access