As jury trials re-start in this District and elsewhere, litigants may wonder whether and how to help the jury understand the impact of the pandemic on the court and, more specifically, the proceedings they are about to witness.
In one case in this District, the parties proposed competing jury instructions touching on those topics just before the start of a jury trial last month. In that case—In re Chanbond, LLC Patent Litigation, C.A. 15-842-RGA—the parties took slightly different approaches, although they seemed to agree that the jury should be instructed not to read anything into the Court's COVID-related precautionary measures.
The parties, having previously discussed the issue with the Court, submitted two proposed instructions. The defendant's proposal—reproduced below—provides background on the Court's handling of jury trials during the pandemic as well as the decision to restart jury trials, and instructs the jury not to make any inferences based on the Court's precautionary measures (including limiting the number of attorneys and party representatives in the courtroom at a time):
As you may be aware, the District of Delaware had previously suspended all jury trials, civil and criminal, due to the impact of the COVID-19 pandemic. In April 2021, after consideration of both the improving conditions in Delaware and the development of safety protocols, the District of Delaware lifted the suspension allowing jury trials to resume. I set this trial on my trial calendar many months ago. When the decision was made to resume jury trials, I simply resumed my normal trial calendar while implementing appropriate COVID-19 precautions.
The Court recognizes that Delaware, and the nation, are still confronting the COVID-19 pandemic; however, you should not draw any inferences or conclusions based on the Court’s decision to conduct this trial at this time. This case is not a unique case and it is no more, or less important because it is being conducted at this time. The Court believes that the COVID-19 pandemic is sufficiently under control in Delaware to proceed with trials. As mentioned, I have implemented COVID-19 precautions for the health and safety of all trial participants. These precautions include social distancing, wearing masks, and having a limited number of people present in the courtroom at any one time. As a result of the Court’s limitations and precautions, you may see different attorneys cycle in and out of the courtroom during the trial, and you may notice neither side has a party representative present. These are precautionary measures taken to ensure the safety of all participants, and you should not read into or consider the presence or absence of any participant due to these precautions in considering the evidence and arriving at your verdict.
The plaintiff's proposal dispensed with some of the background, but similarly cautioned against drawing conclusions based on COVID-related precautionary measures:
In April 2021, after consideration of both the improving conditions in Delaware and the development of safety protocols, the District of Delaware determined to resume jury trials.
I have implemented COVID-19 precautions for the health and safety of all trial participants. These precautions include social distancing, wearing masks, and having a limited number of people present in the courtroom at any one time. As a result, you may see different attorneys cycle in and out of the courtroom during the trial, and you may notice neither side has a party representative present. These are precautionary measures taken to ensure the safety of all participants, and you should not consider the presence or absence of any participant due to these precautions in considering the evidence and arriving at your verdict.
It is unclear from the docket whether either of these instructions was read to the jury—the public preliminary jury instructions were docketed before these proposed instructions were submitted and the trial transcripts are not yet available.
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