Here’s a future scenario. Soon after you get your jury summons in the mail, you receive a SurveyMonkey link. Under oath—a checkbox and e-signature sufficed—you answer several questions not just about your personal background but also your Wi-Fi connectivity. Do you solemnly swear that you have home broadband?
Now you’ve been selected as a juror, and you and 11 peers are asked to swear another oath over Zoom. A few participants—the judge, the litigants, the defendant—are sitting in the courtroom, but everyone else is watching on a screen. Lawyers present their evidence through screen-sharing. If you have a question for the court, you type it into chat.
A bailiff monitors for technical slip-ups. Witnesses are added to the video call one by one. The judge is the host and can mute the attorneys and witnesses (and jurors) as necessary, to keep you from hearing improper evidence. When it’s time to deliberate, you and your peers convene on a separate Zoom call; everyone gets a verdict form via Dropbox link. You may even be allowed to play back recorded exchanges from the trial.
That outline is adapted from a plan set out by Richard Gabriel, a Los Angeles-based trial consultant. Gabriel is advocating for an unprecedented legal innovation: the fully remote jury trial. The idea, he says, “is actually quite viable right now. The obstacle for me is more of a logistical one. It’s the trial courts trying to grasp logistically how they can put a remote jury together.”
The court system has been resistant to the use of remote tools in legal proceedings, with the US Seventh Circuit Court of Appeals ruling in 2018 that there are “unique benefits of physical presence” and that a defendant can’t consent to a plea via videoconference. But as the pandemic continues to drag on, courts are postponing jury trials deeper into the summer—and those same “unique benefits of physical presence” may now be counterbalanced by the risks of a packed courtroom and the resulting risk of harm from long delays.
With case backlogs looming, most federal courts have already been forced to halt protections such as those provided under the Speedy Trial Act of 1974. Such postponements of justice have real repercussions for defendants left in pretrial detention. The widespread pause on jury trials is translating into extra months in jail for these defendants, many of whom are there simply because they can’t afford bail. While some states, like California, have responded to the pandemic by setting bail at $0 for people with low-level offenses, others are barely budging. Texas won’t release pretrial detainees accused of committing or threatening to commit a violent crime.
Are remote juries part of the solution? The idea of conducting full trials via videoconference has quietly moved within the bounds of possible. In mid-March, a New York court allowed a sick juror to continue to deliberate through a video hookup—a step that gave the US a partial preview of how a Zoom trial might play out. Other states are testing remote grand juries, civil juries, and simulated criminal juries.
“I think jury trials where some portion is conducted via teleconference is far from theoretical,” said Thomas Boyd, the administrator of the Michigan state court system, whose office is conducting a pilot using the videoconference system Polycom. Boyd predicts that someone, somewhere, will hold a fully remote jury trial—with the consent of the defendant—before the year is out.
In Michigan, where jury trials are postponed until at least June 22, Boyd is in favor of all sorts of courtroom experiments. “Judges have called me and said, ‘Well, we need to use the parking garage,’” he told me. “I say, ‘Think it through. Keep going. Give it a test.’ We encourage creative judges to participate and give us their ideas.”
The fact that jury trials are on hold doesn’t mean the entire US court system is, too. The Supreme Court is conducting oral arguments over the phone for the first time ever—and, aside from that one toilet flush, it seems to be working. Federal courts and 39 states are also allowing some civil procedures and criminal hearings to unfold remotely, so long as the defendant agrees. But the federal court system has placed hard limits on remote proceedings: only the least consequential hearings—like arraignments or preliminary hearings—can happen by video chat.
In our legal system, not all trials require the presence of a jury. Some judge-only insurance cases have already gone forward by videoconference. But criminal defendants who are in detention will need some form of jury trial, as a rule. Those wouldn’t have to be carried out via Zoom or Skype. Montana courts, for example, have been testing socially-distanced, in-person jury trials in middle school gyms. During the Spanish Flu, San Francisco held court hearings outside—in a one-block park—to lower transmission risk. In the thick of World War II, the UK cut the number of jurors in most criminal trials from 12 to 7.
Remote juries might be the most effective solution, though. Earlier this week, Collin County, Texas, conducted a summary trial over the internet. In a summary trial, the jury’s verdict is nonbinding, but it is still significant: Verdicts are used to encourage civil settlements. Only the jury selection portion of the trial was streamed publicly on YouTube, but aside from one juror wandering off to take a phone call in the middle of the proceedings, the process went relatively smoothly. In Kansas City, Missouri, a grand jury has met on Cisco WebEx every other week to weigh criminal indictments. “The prosecutor and grand jury foreperson meet in person (with responsible social distancing) at the courthouse, and witnesses testify at the courthouse, but the other grand jurors participate remotely,” according to Paula Hannaford, who oversees jury studies at the National Center for State Courts. All 18 grand jurors meet together in three-hour installments. Hannaford said she hasn’t heard of any technical glitches.
More municipalities might soon join Kansas City. The National Center for State Courts is transitioning 16 counties whose grand juries were interrupted in mid-March into remote proceedings. Much remains up in the air, but the NCSC published a tentative framework for how these rebooted juries might look. Included are suggestions that courts send jurors text reminders to download Zoom, that an IT team chat with jurors in advance in order to check the quality of their connection, and that jurors vote with Zoom’s “raise hand” feature.
Of course, grand juries and summary juries are both relatively low-risk compared to full-scale criminal trials. Court delays and incarcerated defendants mean that criminal trials are the most urgent to hold, but they’re also the most controversial.
The roadblocks to a remote criminal trial trace back to the Sixth Amendment. The Confrontation Clause guarantees criminal defendants the right “to be confronted with the witnesses against him”—and how that confrontation translates into a Zoom world remains contested. While the Supreme Court has affirmed that in-person confrontation is preferred, it noted in a 1990 decision that this is “not absolute.” In “certain narrow circumstances,” witnesses can appear remotely; an underage abuse victim who wishes to stay anonymous, for example, might be allowed to testify through a videolink. It seems likely that a pandemic would qualify as one of those “certain narrow circumstances”—New York University’s Civil Jury Project suggested as much in a recent newsletter—but it’s no guarantee. And if remote jury trials do go forward, appeals are inevitable, according to Gabriel.
There is a slew of other concerns with remote criminal trials. Could jurors respond differently to witness testimony on Zoom than they would to testimony in person? Gabriel notes that the research is muddled, but the ability to get an up-close view of witnesses on video chat might help jurors analyze facial expressions more closely. That, of course, could also cut the opposite way, inflaming existing prejudices. Some studies (conducted long before the spread of Covid-19) have found that remote appearances during bail or sentencing hearings can hurt defendants, at least if all other parties are gathered in person. Defendants felt disoriented and out of sync with the process. That effect was neutralized, however, in a simulation of fully remote trials run by researchers in Australia. “Now it’s a different type of court hearing, because by necessity everyone’s appearing remotely,” said Meredith Rossner, a professor of criminology at Australian National University. “That could change the dynamic of the hearing and potentially make it more fair for the defendants.”
Asking jurors to perform their duty via the internet raises other, fundamental fairness questions. People with home broadband are more likely to be young, white, and well-off; so if courts don’t plan out alternatives, they will be picking jurors from a biased sample. Gabriel suggests that jurors who lacked the necessary internet connections could assemble in empty administrative office buildings. Courts would provide safe transportation to those buildings, then set up jurors in workstations with government computers and assign a bailiff to supervise any connection issues. The NCSC has also floated the possibility that courts might loan out routers to jurors.
Connection glitches are bound to happen, though. Even people with good Wi-Fi may get booted from their Zoom calls now and again. In the UK, a legal advocacy group ran two experimental remote trials and found ominous indications that such glitches as screen freezes or dropped audio could derail proceedings. The report concluded that these “seemingly small things […] are not easily discounted in this context as vital evidence could easily be missed as a result.” In some situations a bailiff could be notified of the problem, and the proceedings paused until it’s fixed—but this might not always work.
Whether any remote criminal trial goes forward this year still seems like a stretch, but as court delays continue to extend the time that unconvicted defendants languish in jail, we need to cautiously consider all sorts of radical solutions, remote juries included.
If remote juries do turn out to be unfair or technically impractical, we’ll know it soon. On top of the experiments in Michigan, Texas, Missouri, and the UK, Arizona is testing pilot trials of fully remote juries and those with a mix of in-person and online members, according to Gabriel. A judge in Florida ran a 90-minute trial composed of volunteer lawyers acting as mock jurors, and California and Iowa have created task forces to examine how to resume jury trials. At the very least, this year will draw the clearest picture yet of the limits of our jury system—and of what role, if any, videoconferencing can perform in preparing jury trials for future crises.
Photograph: Marcel Kusch/Getty Images
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