What Do Trials Look Like in Federal Court in a Post-COVID World?


For better or worse, I am one of a small handful of criminal defense attorneys in Arizona who have conducted a federal jury trial since the courts came to a near grinding halt with the start of the COVID pandemic. In fact, I have conducted two federal jury trials since then – quite possibly making me the current front runner in Arizona among my colleagues.

Having conducted over 100 trials at this point in my career, I would best describe my most recent federal trials as weird. The environment is sterile with everyone wearing masks, except for the witness who is testifying. Of course, there is no need for the witness to wear a mask as they are enclosed by a somewhat sterile bubble that is reminiscent of a Libyan courtroom in the 1980’s.

Presenting my opening and closing arguments are the rare occasions that I can deliberately look the jury right in the idea and tell them what I think of the Government’s case against my client – be it in a white collar matter (such as money laundering, wire fraud, etc.) or a drug conspiracy case. It’s important for me to read their faces and their body language as it gives me direction as to how to frame my arguments and what their inclinations may be. But now, I only get to see a small portion of their faces. Unless they are staring intently or leaning in towards me (as one juror recently did in a trial that ended in a not guilty verdict), it’s particularly tough to read them.

No more are the days where I could hand the witness an exhibit or transcript to show them their previous testimony that is vastly different than what they say in trial. Now, things are done digitally and show to a witness on a screen. Sure, the inconsistency will come out. But it’s so much more effective to walk up to the witness stand (with the judge’s permission, of course), and emphatically point to the spot in their previous statement which proves that they were lying then or they are lying now. Don’t kid yourself, being a federal criminal defense attorney is somewhat a performance art.

Jurors have their own views on the safety precautions and mandates that will remain in place in federal court for the foreseeable future. It’s often interesting to see which jurors go to lunch with other jurors. Clearly, if they are bonded over lunch, they may well be bonded in their thoughts on the case. I can’t tell you how many times I’ve made this observation and seen ‘cliques’ within the jury before they even got to deliberate. Now, jurors seem more distant and disengaged from one another. Once again, it’s harder for me to read them and gain valuable information.

Hopefully, things will change and we will get back to normal before long. One thing hasn’t changed, though. If you or someone close to you has been charged with a federal crime in Arizona or, for that matter, around the United States, you need an experienced an aggressive federal criminal defense attorney who not only has federal jury trial experience (few do), but also understands what federal criminal trials look like in a post-COVID world. Contact my office at (602) 663-9100 for a confidential consultation. Like federal trials, we too have adapted and have conducted many virtual consultations for clients. And believe me, it’s nice to see the face of the person who I am going to be representing.

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