A Dangerous Precedent: Covid Kills Juries

The Idaho Supreme Court has been issuing orders since September outlining changes in normal jury trial processes due to the spread of COVID-19 in Idaho. Now, they’ve completely prohibited jury trials until further notice, initiating acute violations of every Idahoan’s constitutionally guaranteed right to a “speedy and public trial, by an impartial jury.” 


In September 2020, the Supreme Court of Idaho issued an order setting a standard for when a district judge could order the impanelment of a grand jury, based on the COVID rate in that county. 

In November, the Supreme Court of Idaho prohibited both criminal and civil jury trials in Idaho state courts altogether until January 4, 2021.

Finally, further unjust action was taken by the Idaho Supreme Court last week when it issued an order prohibiting jury trials until further notice.   

The reasons for this, cited by the order, include prevention of COVID contraction by groups of gathered juries, prevention of overburdening the healthcare system, and removing circumstances where a person is legally required to be present for court proceedings while groups are gathered, forcing possible exposure to the illness. 

In November, state constructed statistics indicated that COVID-19 ranked among the highest causes of death among its populace. This led the state Supreme Court of Idaho to justify the temporary dissolvement of juries in the state in order to protect potential jurors from the virus. As a result, this led to the backlogging of cases, and consequently more people in jail who are truly not receiving their “speedy trial.” This order sets a dangerous precedent in the absolution of constitutional rights during times of heightened pressure within Idaho and the United States. 

Why the right to a jury?

The founding fathers sought to create a system in which every individual would be granted the utmost amount of fairness and liberty. In order to ensure that the general populous and their descendants were granted such rights they drafted the bill of rights. Each constitutional amendment offers various protections against a tyrannical government. The Sixth Amendment revolutionized the system in which suspected criminals were tried. The Amendment itself reads;

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (Authors emphasis added) 

The original colonists of our country came from mixed backgrounds, in many instances however, many came to the new world searching for religious freedom. The idea that all men were created equally was instilled in their minds and hearts. This extended to the justice system. Previously in England the precedent criminal system was the inquisitorial system. The inquisitorial system differs from the adversarial system that we abide by today in one main regard; the role of the court. The inquisitorial system of the era held the court itself responsible for the gathering of evidence against the accused; furthermore it was the court who determined the veracity of the evidence gathered. The court’s power would be centralized in a Judge, who questioned the individual and made the ultimate verdict. This system put the burden of proof upon the defendant, who was forced to prove his innocence. The status quo did not sit well with the colonists, who desired the opposite to be true, hence the phrase “innocent until proven guilty” which is the conceptual basis for our current legal system. One of the essential elements incorporated into the government by the founding fathers used to obtain that dream was the use of a jury.

The use of a jury that consists of regular citizens does several things that the previous model did not do. First, it ensured those who participated in the collection of evidence would not be responsible for the ultimate verdict.This helped to ensure the elimination of prosecutorial bias. Second, it allowed a group of people instead of a single individual to mull over the question of innocence. In addition, the jurors would be their fellow lay citizens, enhancing the legitimacy of the verdict. Third, it mitigated the possibility of corruption as a group of jurors are much harder to bribe than a single judge.

The Idaho Constitution itself guarantees the right to a jury. Section seven of the state constitution declares;

“RIGHT TO TRIAL BY JURY. The right of trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in district court, the jury shall consist of not more than six.” (Authors emphasis added)


Arguably, the most vital part of the constitutional text is the idea that the right by trial by jury should remain inviolate. This liberty is not only guaranteed on a federal level but also on the state level as well, the protection of the right to trial by jury in both constitutions indicates that the right itself is so crucial that it was to be protected on multiple fronts. 

Idaho is not alone

Idaho ranks among dozens of other states that have suspended in-person juries. Other states that have completely suspended in-person jury trials include: New Mexico, Wyoming, Utah, New York, Vermont, Minnesota, Alaska, Iowa, Arkansas, Kentucky, Tennessee, Maryland, Delaware, Connecticut, and New Jersey. There are other states that have deferred the decision to individual counties on the matter.

(image copied from https://www.ncsc.org/newsroom/public-health-emergency)
(image copied from https://www.ncsc.org/newsroom/public-health-emergency)

This has had catastrophic implications for the nation’s legal system. As more and more trials are postponed, individuals, specifically those who cannot acquire the capital needed for bail, will sit idle in jail while they await a trial that is anything but “speedy”. Truthfully, it could take months for the legal system to return to its previous status quo and even longer for the overload of cases to cease. 

[Related article: States Halt Jury Trials Again, Leaving Many Defendants in Jail (Bergal, 2020)] 

The court order itself does not help Idaho in the long run but instead serves to further exacerbate the negative ramifications bestowed upon the people due to the mandated orders on behalf of the government in response to the spread of COVID-19. This current court order sets a dangerous precedent in the nullification of our unbreachable rights. The right of trial by jury is a foundational liberty on which our country was built. It was instituted in order to safeguard the average citizen against the overarching authority of an easily corruptible government. In conclusion, this is a right that must be protected at all costs. The infringement upon the right of a jury must be looked upon as an attack on the constitution itself and repelled by the law abiding citizens of this great state.

About the authors:

Lindsey Zea is a policy and research associate with the Madison Liberty Institute. Lindsey holds a Bachelor’s degree in History from BYU-Idaho and loves finding applications of history to current events and political debates. She also serves as a policy analyst with the Better Cities Project (BCP) and formerly interned with the Libertas Institute in Utah.

Elijah Larson is a policy and research intern with the Madison Liberty Institute. Originally from Farmington, New Mexico, Elijah is majoring in international studies at Brigham Young University – Idaho in Rexburg, Idaho.

Article reference: Jenni Bergal, K. (2020, December 8). Retrieved December 22, 2020, from https://www.ncsl.org/research/civil-and-criminal-justice/states-halt-jury-trials-again-leaving-many-defendants-in-jail-magazine2020.aspx