April 17, 2020
Jury Trials in the Age of Pandemics and Other Disasters/Disruptions
As of this writing, most jury trials have been halted. All but a handful of states have ordered nonessential personnel to stay at home. While many states and federal jurisdictions have set restart dates for the nonessential court functions (e.g., jury trials) in several weeks to several months, no one can confidently predict when and in what time sequence jury trials will resume across the nation. Not only is there uncertainty in the restart date(s), but numerous reports have warned of another wave or waves of COVID-19 outbreaks coming this fall and/or winter. All of these factors put jury trials in a fragile position in the near term and serve as a wake-up call highlighting the need for short-term solutions and for longer-term solutions (in response to potential illness outbreaks or local, regional, and national disasters/disruptions resulting from natural disasters and climate change).
First: I hope everyone reading this is safe and practicing appropriate COVID-19 hygiene.
Second: I hope we all do what we can to support those on the front lines of the epidemic; the medical workers, first responders, and grocery and pharmacy workers, among many others.
Now, Back To Jury Trials . . .
Richard Gabriel, a trial consultant and fellow member of the American Society of Trial Consultants, recently wrote a thought provoking piece on conducting online jury trials in Law360. In it, he describes a number of options and issues in conducting jury trials online. I think it is useful to highlight the basics of which are as follows:
- Videoconferencing services (e.g., Zoom, GoToMeeting, Google Hangouts Meet for Business, Skype for Business, and Cisco WebEx) would provide the platform for the online trials. Judges, parties, court staff, and other relevant entities would receive tutorials ensuring efficient, seamless use and standardization of the courtroom environment (both the physical courtroom production and the virtual courtroom environment).
- The rules for the use of technology and the trial schedule and format would be set during pretrial conference(s), including considerations from human factors research on attention span and information processing.
- The summons to jurors would include an assessment of computer technology (type of computer/digital device and availability of a camera) and level of internet access possessed by potential jurors. Those without sufficient computer technology and internet access would be provided an appropriate station at a government location (e.g., courthouse).
- Jury selection would begin with potential jurors completing an online survey with the completed forms/data being sent to the judge and the parties. Prescreening (e.g., for hardships and challenges) could be accomplished in a teleconference setting with the parties and the judge.
- Traditional voir dire questioning and jury selection would be conducted in one of two approaches. Jurors could be interviewed individually by the judge and the parties during scheduled videoconferences, or the panel could be questioned en masse. A second approach would involve having questioning en masse, and, when individual follow-up is needed (e.g., as a result of an electronic hand raise or verbal answer), the juror could be questioned in a private chat or breakout room.
- Peremptory challenges (and any additional challenges for cause) could be exercised at the end of questioning. While not mentioned by Mr. Gabriel, jurisdictions not operating within the struck system of challenges could have most any configuration allowed by the platform to conform to jury selection rules in the trial jurisdiction.
- Once the jury is selected, the jury would be “assembled” in a different cyber meeting place, given initial instructions (e.g., platform service functions, the law, seclusion and environmental restrictions, and ban on Internet research, among other instructions).
- The camera on the jurors’ devices would be activated to allow appropriate court staff to monitor jurors for attendance and attention and allow the parties and the judge to observe jurors.
- Opening statements would be delivered to the assembled jurors and witnesses, and physical evidence would be presented via the videoconference platform. If the jurisdiction allows juror questions, such questions could be submitted to the judge via chat features.
- After closing arguments and jury instructions, the jury would convene electronically in a different secure breakout room or in a different private “meeting.” Any questions, requests for physical exhibits, or other normal jury issues could be handled electronically.
- At the conclusion of deliberations, jurors would complete an electronic verdict form and send it to the judge or clerk, as appropriate.
- The jurors would reconvene in the courtroom, along with the judge and parties, for the reading of the verdict and subsequent polling of the jurors, if needed or required.
Since this article, others have commented on the current use of online hearings, and additional suggestions and warnings concerning online jury trials (e.g., the need for proprietary platform software for the courts, fostering inclusiveness in jury selection, and ensuring private deliberations).
The Times They Are A’changing . . .
As Mr. Gabriel acknowledges, it is by no means a perfect system (which also applies to my description above). However, it is an approach that is deserving of serious consideration, particularly under extreme circumstances (e.g., the COVID-19 pandemic or environmental and/or natural disasters). In fact, different components of online trials/litigation are already being implemented in courts across the nation. Videoconferencing is occurring in many courts. At least one court, in light of the COVID-19 crisis, has used videoconferencing (FaceTime) to allow a juror who was feeling ill to participate in deliberations after receiving instructions by the judge about conditions/requirements for participation. In fact, while most courts have been reluctant to implement online jury trials, the Virginia Supreme Court recently appeared to open the door to online jury trials─as of this writing I have yet to receive a response to my request for clarification on this issue─in its recent letter to all Virginia judges and clerks (allowing courts to “conduct any civil or criminal matter by two-way electronic audio-visual communication system,” provided COVID-19 restrictions are met; appropriate online videoconference providers/platforms with appropriate security features are employed; and with the consent of all parties, attorneys, and witnesses).
There are a number of concerns that arise in such undertakings, including legal issues (e.g., confrontation clause/6th Amendment issues), security issues (e.g., potential issues with security of recorded sessions, personal information, and meeting security on these meeting platforms, e.g., Zoom), consistency in technology used and internet access and bandwidth by jurors (e.g., impact of display device sizes and functionality on information processing and perceptions and decisions regarding litigants and the trial process), juror representativeness, juror attention and monitoring issues, public access to trial proceedings, and presentation context/procedures, among other issues.
Is It Live Or Is It . . .?
There are myriad issues that will need to be addressed in going forward, but a particularly important issue is the presentation context/procedures for the online jury trial. A fundamental question arises: are online jury trials functionally equivalent to live, in-person jury trials (or not fall short on critical functions, protections, and decision making features and outcomes)?
Research results concerning live versus alternative formats/modalities have not been entirely consistent, but caution appears to be warranted. In a pilot study of first hearings before magistrates in England using virtual hearings, defendants appearing via videoconferencing were found to be more harshly treated by judges than defendants appearing in court. [Thanks to Hon. Mark A. Drummond (Ret.) and NITA.] Similarly, a Chicago study of bail hearings via videoconferencing showed that defendants appearing via videoconferencing received harsher bail conditions than those appearing in court (Diamond, Bowman, Wong & Patton, 2010). Similar negative effects occurred with videoconference asylum hearings, with fewer individuals granted asylum in videoconference versus in-person hearings (Walsh & Walsh, 2008). In addition, differences have appeared between live testimony and testimony presented via videotape recordings and/or closed-circuit testimony (e.g., testimony from child witnesses in child sexual assault cases were viewed less positively with subsequent fewer convictions in the closed-circuit condition versus in-person condition—and no differences were found in detecting deception between live and closed-circuit conditions (Orcutt, Goodman, Tobey, Batterman-Faunce, and Sherry, 2001, with similar results from Landstrom and Granhag, 2010, who interpret their findings in terms of the “vividness” of in-person testimony versus remote testimony). Also, relevant to the presentation of the nonjury participants, judges and witnesses were viewed less favorably when appearing remotely versus in person (Tait and Tay, 2019). Finally, additional concerns arise from the research on the impact of camera angles on perceptions of videotaped confessions/defendants (Lassiter, Greers, Handley, Weiland & Munhall, 2002), the use of slow-motion versus regular motion video evidence (Caruso, Burns & Converse, 2016), and the extensive research on priming effects such as defendants wearing eyeglasses (Brown, Henriquez & Groscup, 2008) or prison tattoos (Brown, McKimmie & Zarkadi, 2017), and priming effects arising from the physical environment, e.g., defendants appearing in holding enclosures (i.e., “docks”) versus at counsel table being convicted more frequently (Rossner, Tait, McKimmie & Sarre, 2017) and mock jurors viewing defendants more positively when sitting alongside their attorneys than when isolated.
Do No Harm
The above research indicates that we should be cautious in embracing online jury trials without seriously considering how to prevent unwanted “side effects” or biases. In terms of the presentation/context and procedures, there are a number of steps we can take to make online jury trials come closer to meeting appropriate legal standards. I will list a few nontechnical issues (for other resources see National Center for State Courts’ Pandemic Resources link) that should be addressed, but it is not intended to be exhaustive. Additional recommendations can be adapted from a very ambitious research project conducted in Australia (while not technically addressing remote participation by jurors, it deals with many issues concerning remote participation from the nonjury participants and accompanying technological issues—many thanks to Dr. Blake McKimmie for sharing their findings with me). These preliminary recommendations do not address jurors (I will address this in the future) but the content and style of the information they receive.
- Focus on making the presentation of information to the jurors and associated procedures as realistic as possible in terms of a courtroom experience, which will increase the “vividness” of the experience for jurors.
- Backgrounds and clothing for the nonjury participants should be consistent with and reinforce their roles at trial, fostering increased “vividness” and juror identification with the trial process.
- Judges should appear in judicial robes with a courtroom backdrop (either in terms of shooting location, prop setup behind the judge, or virtual background on the videoconferencing platform) that reinforces their role at trial.
- Ideally, the backgrounds for attorneys (either shooting location, prop setup behind them, or virtual background) should be standardized across parties and reflect a courtroom atmosphere.
- Witnesses should have a standardized background, ideally reflecting a courtroom environment (either shooting location, prop setup behind them, or virtual background). This is particularly important in view of the fact that the backgrounds can affect perceptions either inadvertently (e.g., cluttered versus organized environments) or deliberately (e.g., specific objects chosen to appear in the background designed to evoke desired reactions on the part of jurors).
- Given the research cited above, if parties are visible when not on the stand, the parties (particularly criminal defendants) should appear with their attorneys and not separately, if possible.
- All nonjury and jury participants should be coached on the use of technology as it applies to their role, appropriate behavior, and actions to take if technological issues arise (which will happen).
- Judges should play an active role in ensuring that the style and content of the trial information meets an appropriate standard of quality.
- Once the appropriate technology has been assembled, all participants should receive tutorials on its usage (thanks Richard) and engage in a practice session(s) in advance of the start of the online trial. This training and practice should also include appropriate camera angles, lighting, and eye contact angles beyond the simple operation of the equipment.
- Courts should develop strategies that reinforce juror attention and commitment to their roles as jurors. For example, judges should find ways to engage in two-way communications with all jurors daily (or multiple times each day), either as part of a “ritual” of being a juror or some other activity requiring active juror responses, to encourage commitment and attention.
- Finally, courts will need to incorporate more frequent breaks than currently occur with in-person jury trials in order to accommodate and remediate the fatigue associated with viewing display screens over long periods of time.
While I have noted a few considerations and concerns about conducting online jury trials, this does not mean that online jury trials should not be undertaken. However, it is important that we do so knowing the potential variety of issues that could arise, anticipate and employ best practices, and evaluate online jury trials on a systematic basis. The results and experiences from early online jury trials will likely expose areas where improvements are possible. Systematic information (data) gathering from all stakeholders in the process will further our goal of ensuring that online jury trials meet the standards of our criminal and civil justice system.
I will address some other issues in online jury trials (or components of them such as online juror questionnaires) in future posts. Given the urgency of the present situation and the pressure of court backlogs, I felt it was important to try to move the conversation forward.
Mastering Group Voir Dire Tip Series:
Explore tips for conducting effective group voir dire from our Master Group Voir Dire Tips Series. Check out our introductory two-minute video, Tip 1, Tip 2, Tip 3, Tip 4, Tip 5, Tip 6, Tip 7, Tip 8, Tip 9, and Tip 10.
For more information on voir dire and jury selection, see Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, Fourth Edition (2018). Also, check out my companion book on supplemental juror questionnaires, Mastering Voir Dire and Jury Selection: Supplemental Juror Questionnaires (2018).
The November 6, 2019 podcast from the ABA Journal’s Modern Law Library series features a discussion of voir dire and jury selection with Dr. Frederick in which he addresses tips for group voir dire, nonverbal communication in jury selection, and jurors and the internet, among other topics. Check out this 40-minute podcast on the ABA Journal’s website: http://www.abajournal.com/books/article/MLL-podcast-episode-110.
On January 25, 2019, Dr. Frederick presented a CLE program entitled “Mastering Voir Dire and Jury Selection” at the ABA Midyear Meeting at Caesar’s Palace in Las Vegas. Legal Talk Network conducted a short, 10-minute interview in conjunction with this program. You can listen to this podcast at: https://legaltalknetwork.com/podcasts/special-reports/2019/01/aba-midyear-meeting-2019-mastering-voir-dire-and-jury-selection/.
Dr. Frederick presented a 60-minute program based on his book, Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, for the ABA Solo Small Firm and General Practice Division’s November 21, 2018 session of Hot Off the Press telephone conference/podcast. Check it out at the Hot Off the Press podcast library at: https://www.americanbar.org/groups/gpsolo/podcasts/2018-podcast-library/