Today, visiting Judge Wolson issued an opinion and order declining to exclude jurors without up-to-date COVID-19 vaccines. The government had requested to exclude those jurors to prevent trial disruptions due to COVID-19.
The opinion was issued in a criminal case, but the language would seem to apply to civil cases as well; the denial was based largely on the difficulty of assembling jury pool in Delaware who are current on their vaccines:
A vaccination requirement along the lines the Government proposes could hamper the Court’s ability to assemble a jury. Current statistics suggest that only 34% of Delaware residents over the age of 18 have received booster shots. 1 That includes 65% of those who are over the age of 65, many of whom are not part of the jury pool because of their age. The result of excluding from the jury pool a large number of people with a high vaccination rate will be to lower the rate of people over the age of 18 in the remaining pool. There could be additional members of the jury pool who are eligible because they received their vaccinations recently. But in any event, the numbers suggest that a vaccine requirement along the lines the Government proposes would exclude nearly 2/3 of potential jurors from the jury pool.
The Court also noted that jury service is an important right of potential jurors, and declined to limit that right based on the evidence it had before it:
The members of the public whose civil rights this restriction would curtail are not before the Court. And, if the Court were to impose the restriction that the Government asks, they might never know that the Court has curtailed their fundamental rights. Depriving an individual of such a civic duty, without an opportunity to explain why the Court intends to deprive the person of the opportunity to serve, requires a weighty showing. But neither the Court nor the Parties knows how excluding a substantial portion of the jury pool would alter the pool. For other proposed limits on the jury pool, courts, lawyers, and social scientists can draw on their experience to make reasonable conclusions about the effect of a proposed change. But when it comes to this pandemic, and the way rules might ripple through society, everyone is flying blind. The Court is not prepared to make such a change, and impact citizens’ rights, based only on the speculative record before it.
Of course, as we discussed earlier this week, some parties are working to avoid trial altogether until the current Omicron wave passes.
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