From [HERE] and [SEE Joffe v. King & Spaulding LLP, 2021 WL 5864427 (S.D.N.Y. Dec. 10, 2021).] Courts across the country are temporarily suspending jury trials amid the Omicron variant wave. Prior to that surge, many jurisdictions had resumed criminal and civil jury trials with health and safety protocols. 

In December 2021, a Federal Court in the Southern District of New York excused “for cause” unvaccinated potential jurors.  The Court ruled that the exclusion of unvaccinated jurors from jury duty did not violate the statutory fair cross-section requirements of the Jury Section and Service Act, 28 U.S.C. §§ 1861,  which provides that “all litigants in Federal courts entitled to trial by jury shall have the right to…juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.”

Fair cross-section challenges are analyzed by applying the Duran Test, which requires the challenge show: (1) that the group alleged to be excluded is a “distinctive group in the community”; (2) that the group’s representation in the source from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation results from systematic exclusion of the group in jury selection.

The Court concluded that unvaccinated jurors are not a distinctive group and rejected the argument that vaccination status is a “proxy for individuals who hold a particular point of view….”  “There are a multitude of reasons why an individual might be unvaccinated…membership in the unvaccinated group changes on a daily basis.” And “There is nothing to suggest that the viewpoints held by the unvaccinated will not be adequately represented by the vaccinated [in trial].”

The Court reasoned that unvaccinated jurors posed a considerable and unnecessary risk of disruption to trial.  Further, excluding unvaccinated jurors for cause would (1) increase the likelihood that all trial participants would be safe; and (2) minimize the probability that the trial would be interrupted by a juror testing positive.  Because vaccinated jurors may feel unsafe and uncomfortable serving with unvaccinated individuals, this could cause anxiety that would impair the juror’s ability to serve and cause a distraction from the proceedings and deliberations.