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COVID-19 and Jury Trials in Massachusetts: Why Reducing Jury Size During the Pandemic in Medical Malpractice Cases is Not the Answer

COVID-19 and Preserving the Constitutional Right to a Jury: Supreme Judicial Court Recommends Reducing the Number of Jurors in Civil Trials

COVID-19 has caused unprecedented disruptions throughout the world, including right here in Massachusetts. One of the largest professions disrupted during the pandemic has been the legal profession and the judiciary, specifically jury trials. This is particularly true in criminal matters where many individuals are awaiting delayed trials and sentencing. But civil cases are also heavily impacted, especially in major civil matters like medical malpractice cases. In fact, medical malpractice cases may be one of the most impacted civil case effected by the pandemic.

Medical malpractice cases often take much longer than other civil matters. Medical malpractice trials typically involve a significant amount of evidence and many witnesses, including experts. Most of these expert witnesses are medical professionals. The combination of more evidence and medical witnesses means that jurors will generally take longer to review and deliberate. These deliberations are typically in a smaller, secluded room allowing the jurors to carry out their civil duties, but also the ideal environment for spreading COVID-19.

With the Executive Order from our Governor and the Orders from the Supreme Judicial Court initially suspending jury trials and slowly beginning to proceed with juries of six only, the judicial system has been slowed down significantly. Thus, alternative recommendations for jury trials are being explored by the Supreme Judicial Court and Superior Court to create better access to justice and to restart jury trials safely while limiting COVID-19 transmission and exposure risks.

One of the recommendations raised by the Supreme Judicial Court for Superior Court trials is to reduce the size of juries from twelve to six in order to limit the risk of infection and promote social distancing during a trial. While this goal of increasing access to justice is laudable and all parties deserve to get back into a courtroom, we fear that this recommendation will unintentionally impair the quality of the parties’, including the healthcare providers’, Constitutional rights to a just and fair jury trial.

Massachusetts Constitution Guarantees a Right to a Jury Trial

While the reduction from twelve members of a jury to six may not sound drastic, the potential change is significant. For over two centuries, the Massachusetts Constitution has afforded the right to a jury trial to all parties in civil cases that request one. This is a fundamental right held by all litigants, and steadfastly protected by both the common law and statutory law. Further, statutory law requires that in the Superior Court, the parties must stipulate to a reduced number of jurors for there to be less than twelve jurors deliberating when rendering a verdict. Thus, reducing the size of a jury would run contrary to the historical and Constitutional bases for a twelve-person civil jury trial in Superior Court.

Why Fewer Jurors Means More Trouble for Medical Malpractice Cases

Medical malpractice cases often require review of voluminous medical records, imaging studies, reports, and other documents that absorb more time and demand more care to review and understand. Given the subject matter, medical malpractice cases require a significant number of expert witnesses, in addition to the defendant providers, who testify in order to help explain medical principles, records, reports, and other evidence to a lay jury. Moreover, the experts’ opinion testimony is evidence of the applicable standard of care, as well as the causation and damage elements of the case, that the juries need to decide. This means that medical malpractice cases not only contain more information to digest, but typically require more witnesses, and associated credibility assessments of these witnesses, that must be carefully evaluated by a jury.

Thus, reducing the number of jurors from twelve to six members affects the quality of the jury’s overall ability to evaluate the evidence and render a fair and just verdict. This fact is supported by scientific research. Among several studies that have researched this issue, a report by the American Psychological Association evaluated whether justice was best served by juries of six members or twelve members. The initial hypothesis was that smaller juries could have a greater potential to go “rogue” and issue verdicts that vary greatly in similar cases and therefore create a wide and inequitable range of verdicts. Whereas larger juries tended to be more stable and allowed all members of the jury, even individuals holding a minority view, the opportunity to express their views creating a better quality deliberation.

As a result of its research and study, the American Psychological Association validated its initial belief and found that twelve-member juries were more consistent than juries that consisted of just six members. The findings specifically revealed that larger groups debated more vigorously and collectively recalled more evidence from the trials that resulted in more consistent and predictable decisions than smaller juries.

In a medical malpractice case where there is a significant amount of evidence, all of which is crucial and important to protecting the rights of a party, having a jury that is more likely to be both unpredictable and miss key evidence presented at trial is a serious risk to the parties involved and Constitution’s requirements for a just and fair jury.

Patience is the Best Approach

We are lucky that we live in a Commonwealth where the Courts have exercised creative solutions to carrying out justice with dispatch during our country’s management of COVID-19. However, with the beginning of the administration of vaccines throughout our Nation and our Commonwealth, now is not the time to undermine the quality of our jury of twelve system in our Superior Courts. While our experienced lawyers at McCarthy Bouley Barry + Morgan look forward to returning to the Courtroom to protect our client’s rights at jury trials once again, this can only be achieved when the vaccine has been widely administered. Reducing jury size and altering the dynamics of a jury’s ability to listen to and understand the evidence collectively and deliberate fairly, must not be undermined.


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