Jury plan approved for Fairfax- View of Virginia criminal defense lawyer

Jury plan is approved to resume such trials in Fairfax – Virginia criminal lawyer weighs in

Jury plan approval is needed by the Virginia Supreme Court county-by-county before jury trials may resume. As a Fairfax criminal lawyer, I know that the county’s Circuit Court plan is approved and will first provide resumed jury trials to incarcerated criminal defendants, followed by jury trial resumption no earlier than April 2021 for non-incarcerated Virginia criminal defendants.

Will the Fairfax jury plan protect Virginia criminal defendants’ right to confront witnesses against them?

The Fairfax jury plan allows for the trial judge to permit witnesses to remove their masks when testifying, so long as they are at least ten feet away from other people. This is essential for preserving Virginia criminal defendants’ Sixth Amendment rights. To enable such distancing, the usual witness stand location will need to be moved in one or more courtrooms.

Similarly with the Fairfax jury plan, if “a face covering impairs the ability of a lawyer to communicate with the witnesses or with the Court may grant the attorney permission to remove his or her face covering as necessary, so long as the attorney can maintain a distance of at least 10 feet from any other person.” Plan at 10.

Will the Fairfax jury plan enable criminal defendants’ to eyeball potential jurors, without face mask covering?

At an attorney’s request, and pursuant to the Fairfax jury plan, the trial judge may ask that individual prospective and selected jury members briefly remove their masks, so long as ten-foot distancing is maintained.

What if a Fairfax witness is unable to or refuses to wear a face mask?

If a witness is unable to wear a mask due to medical reasons or is unwilling to do so, then the Fairfax jury plan provides that ten foot social distancing must be maintained, or else such offsite testifying options as WebEx will be employed .

How will Fairfax criminal defendants and their lawyers maintain communication with each other during trial?

The Fairfax jury plan clashes with a criminal defendant’s right to counsel by keeping the two physically distanced, which prevents their whispering to each other about courtroom proceedings while they happen, and instead leaves criminal defense lawyers either to use alternative technology to consult with his or her client during trials, or to ask for breaks to meet privately with the defendant.

Are lawyers now barred from walking around the courtroom when examining witnesses and arguing to jurors?

Relegating criminal defense lawyers to staying in one place when speaking before the jury used to be reserved for Virginia federal court, but now under the Fairfax jury plan, lawyers will need to stand in place while examining witnesses and arguing to the jury.

How will Fairfax sidebar conferences be handled?

Sidebar conferences are a hallmark of criminal jury trials, where the judge (often in sight of the jury) invites the opposing lawyers and their clients to come to the bench to argue a point of objection or other important point that the jury is not permitted to hear. Now, under the Fairfax jury plan, sidebars will generally take place away from the jury.

Should a Fairfax criminal defendant waive a jury trial to avoid the long waiting time to appear before a jury?

Incarcerated Fairfax criminal defendants may wish to waive a jury trial — if the prosecution jointly agrees — to reduce the delay under the Fairfax jury plan in proceeding to trial. They need to be advised by their lawyers about the extent to which it is wise or not to make such a waiver, especially if jurors are more likely to vote to acquit the defendant. Of course, it is important also to consider that the current Virginia criminal law also entrusts the jury with recommending the sentence after convicting for a felony or Class 1 misdemeanor charge.

Fairfax criminal lawyer Jonathan L. Katz offers Virginia criminal defendants a tailor-made defense action plan. Call 703-383-1100 to schedule a free in person confidential consultation  with Jon Katz about your court-pending DUI case.