Protocols: Jury Deliberations

Protocols

Jury Deliberations

  • Who Tends to the Jury?
    1. Courts should make an IT professional/bailiff available throughout deliberations in order to deal with unexpected technical issues.
      1. Judges should screen all queries from jurors to IT professionals/bailiffs.
      2. The IT professional/bailiff may monitor the jury room via video with the audio muted. Either by chat or raising of a hand the jurors can signal the bailiff that there is a question or a verdict has been reached.
    2. The IT professional/bailiff should monitor that jurors do not browse the Internet or engage in other impermissible conduct, such as drinking alcohol or leaving the “jury room” (except for planned breaks) during deliberations.
    3. If necessary, courts can supplement oversight by asking participants to install software on their computers, including keystroke registers, for the pendency of deliberations.
      1. Jurors should be carefully instructed on how to remove this software immediately upon the end of deliberation.
      2. Courts should not actually utilize the Spyware absent reasonable suspicion of juror misconduct.
      3. Court supplied computers so that every juror has the same technology will assist with all phases of the trial. Jurors may balk at having software installed on their personal computers. Court supplied computers may be configured to eliminate the concern of jurors searching the internet for information.
  • Juror Questions
    1. Questions from jurors to the judge should be typed up and sent either (i) directly to the judge and/or (preferably) (ii) to the IT professional/bailiff through use of the videoconferencing software’s direct messaging function.
    2. The juror foreperson/presiding juror should be given access to either the software’s direct messaging function or an email address to send the questions. An alternate foreperson/presiding juror should be available in the case that a majority of jurors wish to submit a question and the foreperson/presiding juror does not.
  • Deadlocked Juries
    1. As usual, deadlocked juries can be encouraged to come to a fair, accurate resolution in order to efficiently resolve the case and save court resources.
    2. Also as usual, judges should not unduly pressure deadlocked juries to come to a decision.
    3. The amount of permissible and/or appropriate pressure for a judge to apply to a deadlocked virtual jury may well be lower than in a traditional context, but the opposite could also be true. Therefore, judges should not treat deadlocked virtual juries differently absent further empirical evidence shedding light on psychological incentives/effects unique to the Internet and absent from traditional juries.
      1. Virtual trials are less expensive.
      2. It is reasonable to assume that jurors may take their duties less seriously outside a courtroom than inside one. As such, undue pressure from the judge could more easily persuade jurors to come to a resolution.
    4. Conversely, the virtual context may enable jurors to better resist undue influence and/or pressure from a judge to resolve the case swiftly.
      1.  Increased distance may result in less risk of jurors being intimidated by either the judge or other jurors.
      2. The convenience of a virtual trial relative to a traditional trial may give jurors themselves less of an incentive to finish the trial as soon as possible.
  • Length of Deliberations/Breaks
    1. As in a traditional trial, judges should foster a deliberative atmosphere that encourages thorough review of the issues. Accuracy and thorough consideration of the issues > speed.
    2. The virtual format weighs in favor of judges encouraging longer deliberations.
      1. It may be more difficult for jurors to efficiently discuss the issues online than in person.
      2. Limitations on the ability of multiple people to speak—and/or of jurors to break into smaller groups—are present that are not present in in-person trials.
      3. These limitations can be mitigated if an IT professional is available to facilitate access to chatrooms.
    3. Juror inconvenience is minimized in online trials.
      1. Online trials are less expensive and require less judicial resources.
    4. Breaks should not be discouraged and can actually improve the quality of deliberations.
    5. Judges should caution jurors before breaks by (a) cautioning them not to research cases online, (b) reminding them not to discuss the case with others, including family, and (c) reminding jurors of any spyware or other software that may be temporarily installed on their computers to enforce compliance.
    6. Breaks should allow the possibility for jurors to continue getting to know one another, including in separate chat rooms provided by the court.
      1. The deliberative capacity of juries improves when jurors feel comfortable disagreeing. See, e.g., Wanling Su, What is Just Compensation?, 105 Va. L. Rev. 1483, 1530 (2019).
  • Handling of Exhibits in the “Jury Room”
    1. The on-duty IT professional/bailiff should be available to broadcast exhibits—in the form of documents, photos, and/or videos—as necessary.
    2. All jurors should be able to message the IT professional to quickly look at an exhibit.
    3. All jurors could have the exhibits that the Judge agrees should be in the virtual jury deliberation room via a platform such as Dropbox.
  • Confidentiality
    1. As noted above, issues around confidentiality can be (partly) mitigated through use of judicial warnings and admonitions to jurors and spyware or other software that registers keystrokes.
    2. However, a “hybrid” trial (in which jurors come to the courthouse for deliberation, either on Zoom but in separate rooms or in the same room but spaced apart appropriately) may be necessary because of several insurmountable issues that would make a confidential virtual jury deliberation nearly impossible.
      1. How can judges prevent jurors from recording what is occurring with their smart phone?
      2. Similarly, what is to stop a juror from using a smart phone or other device to audio record deliberations?
    3. Because jury deliberations are the most private part of a civil proceeding, courts must think seriously about whether truly confidential deliberations are possible in a virtual environment.