Due to the COVID-19 pandemic, there has been a lot of talk about possibly resuming jury trials by zoom or some form of videoconferencing. While I have, like many people, participated in zoom meetings and video conferences since March of this year, I have to say I was open to the idea in principle. The reasons were that I knew many criminal defendants were waiting for their trials. And many civil defense attorneys were manipulating the delays to their advantage. Therefore, I thought, a zoom trial is better than no trial at all.
But I changed my mind after watching a misdemeanor traffic trial by zoom. It was the first one held (to my knowledge) in the United States. I watched most of the jury selection and some of the trial. Besides the technical glitches, a juror walked off the screen to take a phone call. The “virtual jurors” “deliberated” less than one hour. The virtual format made judging credibility far more difficult than in-person testimony.
Jury service is called “service” and jury duty called “duty” for a reason. It is not always an enjoyable experience. I have had jurors tell me that they never wanted to do it again. Some said it was an emotionally trying experience. Most see it as an unwanted disruption in their daily lives. And it’s a lot less entertaining than the trials they see on television. This is all true. And while I’m a firm believer in the need for attorneys to keep the attention of their juries, I know that there are certainly “boring” times for the jurors. There are side-bar conferences, breaks to address legal issues, and other matters that sometimes require the jury to sit there uninvolved. So, keeping juries’ attention is important, but being “entertaining” can distract from the ultimate role of the trial– to find the truth and fairly adjudicate disputes under the law. It isn’t reasonable to ask jurors to pay close attention and give the proceeding the solemnity it deserves. Especially when they’re amidst their home or work environment.
Appellate arguments, to my knowledge, are far more common in the days of COVID. To be frank, I often think that appellate judges already have their minds made up before oral arguments (not to be too cynical). And the justices understand the issues and are able to ask questions. Jurors, generally, cannot ask questions mid-stream unless they send a note to the judge. And jurors are there to determine credibility of witnesses, something that I don’t think you can fully do on a video screen. My opinion hasn’t changed regarding those changes. In fact, it would make my life easier to not have to fly to St. Paul or Pasadena to argue my appeals in front of the 8th or 9th Circuit Courts of Appeal.
But jury trials are a different animal, and one that I think deserves protection from the ease and convenience of zoom. Not even touching the technical difficulties and “hiccups” that I saw during the Texas trial, the trial itself seemed like a production. That’s understandable with a misdemeanor traffic violation, but I don’t see how it would change with a serious felony. How do you reinforce to a jury that someone’s liberty may be at stake in a virtual world where it all seems like a production anyway? It took one virtual trial to convince me that this shouldn’t happen, which leaves the more difficult question of how jury trials should be held during the pandemic. That question I’ll leave for another post, since I haven’t put a lot of time into thinking about it. But for now, I thought I’d share my complete 180-degree shift in position on the matter of virtual jury trials after seeing one live in action. We can, and must, do better.