McBride, a member of the firm’s nationally recognized Government Investigations & White Collar Litigation Department, is a former federal prosecutor with more than 25 years of experience in criminal and civil litigation. He commented on the implications of allowing a juror to participate in deliberations via videoconference. When two jurors in a New York trial fell ill on March 16, one was dismissed from the panel and the other was permitted to join deliberations by videoconference.
McBride noted that the Federal Rules of Criminal Procedure allow for a jury of 11 only if a court finds it necessary to remove a juror after deliberations start. He likened the situation in New York to having a jury of “10 and a half.”
“Is that juror less able to deliberate than other jurors? We all know that being virtually in a meeting is not the same as being there yourself,” he said.
The pandemic is forcing criminal courts to balance the need to protect public health with constitutional safeguards, including the right to a speedy trial. McBride, a former U.S. Supreme Court law clerk, told Law360 that the U.S. Constitution does not quantify how speedy a trial must be and noted that the Supreme Court has found no violations even when delays were much longer than those prompted by the pandemic.