For the Defense - Vol. 5, Issue 3 - 47

were examined within the context of panel
questioning, counsel would be able to ameliorate
unintended effects and exaggerated hardships.
As a result, practitioners should be prepared
to object to pre-screening. One potential
argument is that the COVID-19 questionnaire
should be treated the same as the confidential
juror information questionnaire. Pursuant
to Pa.R.Crim.P. 632, juror information
questionnaires "shall be used in conjunction
with the examination of the prospective jurors
conducted by the judge or counsel pursuant to
Rule 631(E)."18 Consequently, counsel should
be entitled to question jurors regarding their
responses as they would when questioning jurors
on the standard questionnaire. If pre-screening
is being utilized, counsel loses the ability to
rehabilitate the potential juror and can lead to
the automatic removal of several diverse jurors.
Additionally, Pa.R.Crim.P. 631 requires voir dire
be recorded in full unless the recording is waived.19
Counsel should argue that "for cause" strikes
are part of the voir dire process. As such, any
strikes that are made during the pre-screening
process should, at the very least, be recorded on
an official transcript pursuant to Pa.R.Crim.P. 631.
Otherwise, counsel may lose the ability to fully
develop and/or preserve an argument challenging
the fair cross section of the panel.

Voir Dire and Peremptory Challenges

expanding upon the questions asked by the
court when addressing the prospective jurors.
In Berks, Attorney Holly Feeney asked potential
jurors whether "anyone was so anxious or
nervous about being on the panel, even with
safety measures in place, that they felt it might
interfere with their ability to listen to all of the
evidence." Attorney Matthew Sembach in York
informed the prospective jurors that some of
the participants may not be wearing masks and
asked whether there was anyone who felt that
that fact would affect their ability to sit on the
jury and evaluate testimony, statements, and
instructions.22 Furthermore, Attorney Sembach
specifically questioned the jury after his trial
concluded about the COVID-19 precautions put in
place and all of the jurors were content with the
safety measures taken by the Court.

CDC Guidelines
The AOPC guidelines for resuming criminal trials
mostly focus on following CDC recommended
Social Distancing. The guidelines direct Courts
to limit the number of jurors seated in the jury
box and suggest that the remaining jurors be
placed in the gallery.23 Jurors should be told that
masks must be worn throughout the entire trial.24
Attorneys should not be permitted to approach
witnesses and exhibits should be pre-marked and
placed on the witness stand prior to the witness's
testimony.25

While the AOPC guidelines do not provide
the Courts any guidance on what role the Court
should take in questioning prospective jurors
once they have been assembled, it is plausible
that Courts will pose the questions from the
sample COVID-19 questionnaire, particularly if
pre-screening is not being utilized. The guidelines
do recommend, however, that the Court reduce
the number of peremptory challenges on a
temporary basis. This is recommended on the
reasoning that "[i]ncreased "for cause" dismissals
of summoned jurors for COVID-19-related reasons
likely will result in fewer prospective jurors
reporting for jury selection."20

In practice, social distancing and facial coverings
are being enforced by the Court. In fact, Attorney
Lynn Erickson, Attorney Holly Feeney, and
Attorney Kevin Feeney noted that one of the
largest challenges they faced during the trial was
the fact that jurors were both masked and spread
out around the courtroom, which to some was
unsettling since they were not able to read the
jury's reactions to the testimony or questioning.26
The only place social distancing is not being
enforced, is at counsel table, where clients are
permitted to sit next to counsel.27 However,
counsel have reported that it has been difficult
to communicate with clients because of the facial
coverings required to be worn.28

In practice, Courts took the lead in reassuring
jurors that the modifications to procedure were
made to ensure everyone's health and asking
jurors if they had specific COVID-19 related
concerns.21 Additionally, some attorneys are

In line with AOPC guidelines,29 courts have
required everyone in the courtroom to wear
a mask during the trial, including the Judge,
jury, defendant, and tipstaff.30 Witnesses and
attorneys have mostly been permitted to remove
Vol. 5, Issue 3 l For The Defense

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For the Defense - Vol. 5, Issue 3

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