There are two main questions that surround the issue of all-vaccinated juries in the COVID-19 era.  The first is can you seek to exclude non-vaccinated persons from the venire for cause.  The second is do you want to.  At just about every CLE program we attend these days, whether in person or electronically, where judges or jury consultants are speaking about COVID-19 issues, we raise these questions.  The responses vary but in general, the answers to the first question have been that a significant number of courts are informally excusing unvaccinated persons from jury venires, typically through use of a questionnaire.

As to the second question, the answers we’ve received are all over the lot.  Unfortunately, things are changing rapidly, with widespread availability of vaccines now rendering obsolete jury research conducted even as recently as the end of 2020.  Our gut reaction – based entirely on stereotypical reasoning − is that vaccinated would-be jurors tend to be both more educated and better disposed to those who manufacture that type of product.  On the other hand, they’re more likely to be suspicious of corporations generally.  Unvaccinated potential jurors skew “conservative” – whatever that means these days – aren’t particularly respectful of either science or expertise, and thus are not likely to care much about things like FDA approval.

We bloggers can’t do much to elucidate the second question, but we can research the first.

Joffe v. King & Spalding LLP, ___ F. Supp.3d ___, 2021 WL 5864427 (S.D.N.Y. Dec. 10, 2021), is the most significant case on the question of vaccine-qualified juries.  It’s both a civil case (albeit having nothing to do with drugs, devices, or even product liability) and contains the most thorough discussion of the pros and cons of striking unvaccinated people as jurors for cause.  The Joffe decision, overruling the plaintiff’s objection to an all-vax jury, was driven by the practical consideration that very few courtrooms are physically large enough to accommodate the forms of social distancing that COVID-19 requires:

In an effort . . . to accommodate more trials, [this] trial was slated to be held in a regular courtroom, unmodified other than to provide jurors and other participants with at least three feet of social distance.  If an unvaccinated juror were to be selected, that juror’s social distance would have been expanded to six feet; the Undersigned’s courtroom could not have accommodated more than two unvaccinated jurors.

Id. at *1 (footnote omitted).  Barring unvaccinated jurors, in short, was the only way to get this judge’s – and probably most judges’ – courtroom back into the business of conducting jury trials.  “[E]xcluding unvaccinated persons as jurors would increase the likelihood that all trial participants (including the jury) would be safe and would minimize the probability that the trial would be interrupted by a juror testing positive for COVID-19 during the trial.”  Id. at *3.

As the legal basis for excluding unvaccinated persons from the jury venire, Joffe relied on 28 U.S.C. §1866(c), which provides that prospective jurors may be “excluded by the court on the ground that . . . [their] service as a juror would be likely to disrupt the proceedings.”  Joffe cited several reasons for considering unvaccinated jurors to be inherently “disruptive” during the pandemic:

• “An unvaccinated juror would be considerably more likely to contract COVID-19 and to spread it to other jurors.”
• “Many jurors may . . . feel unsafe or uncomfortable serving on a jury with unvaccinated individuals.”
• “[A]nxiety may impair a juror’s ability to perform his or her duty by being a distraction from the proceedings, both during trial and during deliberations.”
• “[I]f a juror were to be infected with COVID-19, not only would the juror jeopardize the safety of everyone around them, the juror and other jurors with whom the infected juror came into contact might have been required to quarantine, which could have disrupted the trial or otherwise caused scheduling and other logistical issues.”

2021 WL 5864427, at *5.

Joffe also ruled that barring unvaccinated persons from serving on juries did not violate the Jury Selection and Service Act (“JSSA”).  That act entitles federal litigants to juries drawn “from a fair cross section of the community.”  28 U.S.C. §1861.  To violate the statute’s “fair cross section” requirement requires those being excluded from service to be a “distinctive group,” due to their “systematic exclusion,” resulting in the venire “not [being] fair and reasonable” compared to the “community” at large.  2021 WL 5864427, at *6.  Relying on a criminal case, United States v. Moses, ___ F. Supp.3d ___, 2021 WL 4739789 (W.D.N.Y. Oct. 12, 2021), Joffe concluded that the unvaccinated population was sufficiently diverse and changing that it did not qualify as a “distinctive group.”

Because there are a multitude of reasons why an individual might be unvaccinated, the group lacks a basic similarity in attitudes or ideas or experience that defines and limits the group.  Moreover, membership in the unvaccinated group changes on a daily basis.  The claim that vaccination status is a “proxy” for individuals who hold a particular point of view is speculative at best. . . .  There is nothing to suggest that the viewpoints held by the unvaccinated will not be adequately represented by the vaccinated.

Id. at *6 (citations and quotation marks omitted).

In what seems to us something of a stretch, Joffe also determined that prohibiting unvaccinated jurors was not “systematic exclusion” under the statute because COVID-19 was an “external force,” not “due to the system of jury selection itself.”  Id. (citing United States v. Charles, 2021 WL 2457139, at *4 (S.D.N.Y. June 16, 2021), and United States v. Tagliaferro, 2021 WL 1172502, at *5 (S.D.N.Y. March 29, 2021), neither of which involved juror vaccination).

Joffe was interesting enough we decided to see what else was out there.  The only other civil cases we found are C.B. v. D.B., ___ N.Y.S.3d ___, 2021 WL 4696606 (N.Y. Sup. Oct 7, 2021), and Benaron v. Simic, 2021 WL 4464176 (D. Or. Sept. 29, 2021).  Neither has any analysis.  Benaron simply states, in a footnote at the end of an order dealing with other issues, that “[t]he Court intends to require that everyone who appears in the courtroom for trial (including . . . jurors) are fully vaccinated against COVID-19 at the time of trial.”  Id. at *10 n.13.  C.B., a child custody case, included in a list of COVID-19 restrictions that “[u]nvaccinated individuals can even be precluded from serving on juries before the U.S. Federal Court.”  2021 WL 4696606, at *2.  Cf. Hodor v. Home Depot U.S.A., 2021 U.S. Dist. Lexis 221231, at *6 (D. Md. Oct. 4, 2021) (mentioning that “[t]he parties unanimously agreed on the record to a jury pool that is vaccinated against COVID-19”); Carey-Powe v. Washington Metropolitan Area Transit Authority, 2021 WL 5504298, at *3 (D. Md. Oct. 1, 2021) (seeking the parties’ “agree[ment] to a jury pool that has been fully vaccinated against COVID-19”).

The rulings in the aforementioned Moses criminal case were similar to those in Joffe.  Moses decided “to excuse from the pool of prospective jurors summoned in this matter all individuals who are not vaccinated against COVID-19” over the prosecution’s objection.  2021 WL 4739789, at *1.  The analysis in Moses centered on the JSSA, with a finding “there is no basis to conclude that individuals who are unvaccinated against COVID-19 satisfy the standard for distinctive.”  Id. at *3.  It was “highly speculative” that the unvaccinated population shared a similar “attitude” that could create a “danger of . . . partiality or bias,” since “the group for example likely includes individuals who would like to be vaccinated but cannot be for medical reasons.”  Id. at *3.  Further, “[w]hether or not to be vaccinated is not an immutable characteristic, but an active choice made by a particular person for his or her own individual reasons.”  Id. at *4.  Nor was failure to vaccinate a “proxy” for any “distinctive group” – either racial or “point of view.”  Id.  “[I]ncomplete” statistics failed to establish the former, and “no data whatsoever” supported the latter.  Id.  As in Joffe, due to the heightened possibility of infection, unvaccinated jurors were “likely” to disrupt the expected “lengthy” trial:

[I]f an unvaccinated juror were to be exposed to a COVID-19-positive person at any point during the lengthy trial in this case, that juror would be lawfully required to quarantine for ten days.  No such quarantine requirement exists for vaccinated individuals.  As a result of the COVID-19 pandemic, this District . . . has a staggering backlog of jury trials that are ready to proceed.  It would cause massive disruption not just to the instant trial but to other trials . . . if the Court was required to manage multiple mandated quarantines.

Id. at *5.

That’s pretty much it, as far as significant analysis goes.  There are a number of other criminal cases in which the issue of juror vaccination is touched upon, but nothing comparable to the analysis in Moses – let alone in Joffe.  See United States v. Muhammad, 2021 WL 4471594, at *4 (E.D. Va. Sept. 29, 2021) (observing “that the parties agreed to strike unvaccinated prospective jurors for cause”); United States v. Liberto, 2021 WL 4459219, at *8 (D. Md. Sept. 29, 2021) (mentioning the court’s policy of “seating only jurors who are vaccinated against the COVID-19 virus” in connection with denying a criminal defendant’s objection to “asking the jury venire’s vaccination status”); United States v. Donoho, 2020 WL 5350429, at *2-3 (W.D. Wis. Sept. 4, 2020) (mentioning “the promise of a vaccinated pool of jurors from which to draw” in criminal cases); United States v. Elder, 2021 WL 4137533, at *1 (E.D.N.Y. Sept. 3, 2021) (denying, in a two-sentence minute order, a criminal defendant’s objection “to the Court’s decision to exclude individuals who are not vaccinated against COVID-19 from the impaneled jury”); United States v. Bryant, 2021 U.S. Dist. Lexis 175499, at *1 (E.D.N.Y. Sept. 2, 2021) (same); United States v. Thompson, ___ F. Supp.3d ___, 2021 WL 2402203, at *4 (D.N.M. June 11, 2021) (dictum in confrontation clause case that “[t]he Court will not be inquiring about the vaccination status of potential jurors and witnesses”).