By Michael Pressman & Michael Shammas, Research Fellows
Below, our research fellows analyze, in the form of a legal memorandum, whether online jury trials are constitutional and permissible under federal and local rules. This question is likely to be met with increasing urgency as the Covid-19 crisis continues.
Whether it is permissible for federal and state judges to conduct jury trials remotely (e.g., over a videoconferencing platform like Zoom) even without the consent of the parties.
“Jury trial by Zoom” is likely both permissible and constitutional in the civil context. It may not be constitutional in the criminal context.
The main challenge, of course, is that we are treading on new terrain. It seems no authority exists—in the federal Constitution or most state analogues—prohibiting this; on the other hand, no authority explicitly permits online jury trials, either. Thus, in exploring whether a federal or state appellate court would affirm a verdict arising out of a videoconference jury trial, we must consult analogous precedents involving videoconferencing. Because courts in other contexts (civil and criminal) apply balancing tests, a similar approach would likely be used in the context of videoconference jury trials.
While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health emergency weighs in favor of allowing videoconference jury trials in civil cases. In fact, trial by Zoom may be not only permissible but necessary under the Seventh Amendment in order to actualize its protections, especially if the COVID-19 pandemic continues longer than expected.
That the highest levels of the Bush administration created a contingency plan to ensure the continued operation of courts during a pandemic (see § 2, infra) also suggests that online jury trials may be permissible.
The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?
While no court has yet conducted a full jury trial remotely, there have been moves in this direction. Lawyers have conducted depositions via the Internet, appellate courts have heard oral arguments through videoconferencing software, and trial courts have held some (non-jury) proceedings on the Internet. The list is growing, but the below is representative:
- The U.S. District Court for the Southern District of New York has recently begun allowing grand jurors to convene and deliberate via videoconference. (Rule 6 of the Federal Rules of Criminal Procedure does not require that a grand jury be physically located in the same room during deliberations.)
- As Richard Gabriel wrote in Law360, “U.S. District Judge Alison Nathan in Manhattan allowed one of the 11 jurors in the trial of an Iranian banker to deliberate by FaceTime because the juror reported feeling unwell. In light of coronavirus, Judge Nathan stated the court was under ‘extraordinary circumstances’ and in ‘untested waters.’ After being assured the juror would be secluded in an apartment, Judge Nathan stated to the juror, ‘You must think of yourself as present in the jury room.’”
- In a statewide order staying all jury trials, Chief Justice Tani G. Cantil-Sakauye noted: “Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate.”
- An increasing number of judges have conducted bench trials via videoconference. For example, Judge Beau A. Miller, a state-court judge in Houston, Texas, began conducting a bench trial over videoconference on Wednesday, April 22, 2020.
Assuming the trend continues—and it shows no sign of abating—it seems likely we are heading towards conducting full jury trials via videoconference. But would an online civil or criminal jury trial be permissible under federal and state constitutional law? What if one or both parties object?
A digital civil jury trial (but perhaps not a criminal jury trial) is likely both feasible and constitutional. While one could argue that the lack of any categorical prohibition on jury trials via videoconference is itself dispositive, we explore in what follows ways that the question of the permissibility of videoconferencing in the courtroom has been addressed in contexts other than that of an entire jury trial. Courts’ treatment of videoconferencing’s permissibility in these contexts suggests that a similar analysis would apply to entirely remote jury trials, and that such trials would be permissible in federal court and in most state courts.
- Public Trials
In the United States, justice is done publicly. As the Supreme Court wrote, especially in the criminal context, public trials are “essential” for the accused because “the presence of interested spectators … keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (internal citations omitted). While the First Amendment does not require that civil jury trials be public, several state courts have stressed that civil trials, no less than criminal ones, should usually be public. The California Supreme Court is representative: “We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1210 (1999).
There is no reason why online jury trials cannot be public. First, necessity is the mother of invention; even the most technologically illiterate Americans have by now begun adjusting to the pandemic. “Zoom” has become a verb. Second, several states have already begun making digital hearings public—even to citizens without Internet—by setting up rooms in courthouses where citizens can watch online proceedings. Public libraries, courthouses, and other communal buildings could work together to ensure that all Americans have the opportunity to watch trials.
- The Seventh Amendment & State Equivalents
The Seventh Amendment guarantees every American the right to trial by jury in most civil cases. While the substance of the amendment has never been incorporated, most states comply with the jury trial requirement anyway. As Justin Sarno and Jayme Long write in Law360:
According to the U.S. Supreme Court in Simler v. Connor, “[t]he federal policy favoring jury trials is of historic and continuing strength.” In fact, according to the Federal Rules of Civil Procedure, Rule 38, “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution — or as provided by a federal statute — is preserved to the parties inviolate.”
Given the respect Americans grant the right to a jury trial, the judicial system will experience a huge backlog of civil cases—and perhaps a breakdown in the willingness of plaintiffs to sue—exactly when institutions are needed most. So the constitutional question is not just academic but practical. Indeed, one could argue that the Constitution mandates that judges must find a way to actualize the Seventh Amendment by restoring trial by jury—even, if necessary, by videoconference.
Perhaps recognizing the necessity of a functioning judiciary, even in a pandemic, the federal government has brainstormed contingency plans aimed at keeping courts open during social distancing. The most recent attempt stemps from the George W. Bush administration. Specifically, in March 2007, the U.S. Department of Justice, Office of Justice Programs worked with American University’s School of Public Affairs and the Bureau of Justice Assistance to release a publication titled “Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts.” (The entire text is available here.) While the roadmap is helpful, it is more useful in a logistical sense than in a legal sense. Guidance on constitutional questions regarding the Seventh Amendment (or, indeed, the Sixth Amendment) is nowhere to be seen.
- The Confrontation Clause
There is a long line of cases addressing the rights the Confrontation Clause provides. See, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”); Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (“The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right … to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.”); United States v. Gordon, 829 F.2d 119, 123 (D.C. Cir. 1987) (stating that Federal Rule of Criminal Procedure 43(a), affording a defendant the right to be present during jury empanelment, “embodies the protections afforded by the Sixth Amendment Confrontation Clause, the due process guarantee of the fifth and fourteenth amendments, and the common law right of presence.”); United States v. Novaton, 271 F.3d 968, 998 (11th Cir. 2001) (holding that a criminal defendant’s constitutional right to be present under the Confrontation Clause and the Fifth Amendment’s Due Process Clause was violated by conducting portions of his trial, including witness examination and the presentation of the parties’ cases-in-chief, when the defendant was absent due to illness and when he protested).
Cases where a child testified against a defendant via closed-circuit television or another device provide further guidance. See, e.g., Maryland v. Craig, 497 U.S. 836, 857 (1990). In Craig, the Supreme Court held that the Confrontation Clause does not categorically prohibit child abuse victims from testifying against criminal defendants via one-way closed-circuit television. Id. A key question was whether the defendant was constitutionally “present.” According to Justice O’Connor’s majority opinion, the Confrontation Clause merely embodies a “preference” (rather than a requirement) for face-to-face, in-person confrontation, which can accordingly be limited to satisfy sufficiently important interests. Id.
According to the Craig Court, the Supreme Court’s Confrontation Clause jurisprudence revealed that the Clause is not absolute: “Given our hearsay cases, the word ‘confronted,’ as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit [admitting] any accusatory hearsay statement made by an absent declarant—a declarant who is undoubtedly as much a ‘witness against’ a defendant as one who actually testifies at trial.” Id. at 849. The Court continued: “[A] State’s interests [(here, the physical and psychological well-being of child abuse victims]) may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Id. at 853. The Court said that the “presence” requirement can be satisfied by videoconferencing if the testimony is (1) reliable and (2) if a specific necessity has been shown for videoconferencing. Id. at 855 (“[W]e hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special [(e.g., videoconferencing)] procedure.”).
Though a criminal case, Craig suggests that traditional constitutional rights (such as a defendant’s presence) can be satisfied or modified if videoconferencing satisfies other sufficiently important interests. The challenges posed by COVID-19—i.e., the continued operation of the judiciary during a time when in-person jury trials could be deadly—seemingly arise to a sufficiently important level to allow courts to conduct jury trials via videoconference.
Finally, though the right to be present usually arises in the criminal context, it can arise in the civil context as well. In prisoner civil rights cases, for example, the prisoner-plaintiffs have a constitutional right of meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), but there may also be state interests in keeping prisoners confined (and thus not in court) that are rooted in logistical and safety concerns associated with inmate transportation. In these contexts, too, courts have determined whether to allow videoconferencing by employing a balancing test that weighs the interest of, for example, the ability to present in-person testimony against the interest (of the state) in keeping a plaintiff-prisoner confined.
Another takeaway from Craig is that whether a testifying witness can be observed is crucial. Any videoconferencing platform that does not allow for easy observation would be impermissible.
Again, though the Confrontation Clause does not apply to civil jury trials, Craig’s emphasis on observation is a guidepost because allowing jurors to assess witness credibility is as important in weighing evidence in a civil jury trial as it is in a criminal jury trial. Interestingly, platforms like Zoom may make credibility determinations easier because one can see every participant at a glance. Conversely, the performative aspect of Zoom could make credibility determinations harder if witnesses are self-conscious or excessively focused on their appearance (one way to get around this would be to turn off the witnesses ability to see themselves testifying).We are not the first to worry that videoconferencing’s performative aspect can change how participants behave.
Finally, it is important to note that the diversity of state constitutions means that any analogy to the Confrontation Clause will be inapplicable in some states—especially states whose highest courts have disagreed with the Supreme Court’s Craig decision by applying state constitutional law. See People v. Fitzpatrick, 158 Ill. 2d 360, 365 (1994) (“[W]e conclude that the confrontation clause of the Illinois Constitution provides that a defendant is entitled to a face-to-face confrontation with a witness.”); Commonwealth v. Bergstrom, 524 N.E.2d 366, 371-72 (1988) (“The plain meaning of assuring a defendant the right ‘to meet the witnesses against him face to face’ is that the accused shall not be tried without the presence … of both himself and the witnesses testifying against him.”); but see People v. Phillips, 315 P.3d 136, 152 (2012) (citing Craig and holding that neither the Colorado nor federal constitution render CCTV unconstitutional).
Although the lack of physical presence at arraignments might not be unconstitutional, the Federal Rules of Criminal Procedure appear to require physical presence. Even in this context, however, courts have held that videoconferencing may satisfy “presence” for arraignments when necessary. See United States v. Lawrence, 248 F.3d 300, 305 (4th Cir. 2001).
The possibility of videoconferencing satisfying “presence” if necessity is shown is yet another instance of a context that weighs in favor of permitting remote jury trials during a pandemic or other national emergency.
- Federal Rules of Civil Procedure & State Analogues
Federal Rule of Civil Procedure (FRCP) 43(a) has been used in the civil and criminal context to help courts determine the permissibility (or lack thereof) of CCTV. FRCP 43(a) allows videoconferencing for “good cause in compelling circumstances with appropriate safeguards.” Fed. R. Civ. P. 43(a). “This standard considers the relative cost of transporting the witnesses to court in comparison to the cost for videoconferencing, the ability of the court to use subpoena power over the proposed witnesses, whether the alleged criminal incident occurred overseas, and whether United States officials will be available to swear in witnesses at their location.”
Considering Fed. R. Civ. P. 43(a) along with various state rules of civil procedure, three things are clear: First, both constitutional and procedural questions will arise as videoconferencing is used more and more in courts. Constitutional objections to video-conferenced trials will of course be more common in criminal cases, but procedural concerns are likely to pervade both the civil and criminal context. Accordingly, the FRCP and state analogues must be updated to help lawyers and judges smoothly transition into a uniform procedure for trial by videoconference.
Second, the state rules closely mirror Fed. R. Civ. P. 43(a), so cases analyzing Fed. R. Civ. P. 43(a) will be applicable at the state level as well. Maine’s rule is representative:
In every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise. The court may, on its own motion or for good cause shown upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence applied in the courts of this state.
Me. R. Civ. P. 43 (emphasis added).
Third and as apparent from the Maine rule, the majority of the state rules of civil procedure (like the federal rule) require a balancing test. The question of whether trial by videoconference is permissible may therefore differ by state. The balance of interests may make trial via videoconference necessary in, say, New York; it may not do the same in North Dakota.
Courts have demonstrated in other contexts that the determination of whether physical presence can be substituted for by presence via videoconferencing technology is a determination made through a balancing test. Any decision as to whether civil or criminal jury trials held via videoconference are permissible would likely undergo a similar balancing approach.
Ultimately, in exploring whether courts can conduct entire jury trials by videoconference, we tread on new terrain. There does not appear to be any authority, constitutional or statutory, that prohibits trial by videoconference; conversely, there does not appear to be any authority explicitly permitting it. Nonetheless, decisions concerning the permissibility of videoconferencing in other contexts are useful.
With its weighty constitutional protections, the criminal context will likely be where videoconferencing remains most controversial. Civil jury trials held via videoconference may well be permissible, even when one of the parties does not consent. Although a video-conferenced jury trial is obviously not ideal, any drawbacks (such as the potential for reduced juror attention) can simply be added into the balance of costs and benefits. As courts and wider society become more accustomed to Zoom and similar platforms, these drawbacks are likely to be mitigated.
 Fed. R. Crim. P. 6.
 Richard Gabriel, “What Online Jury Trials Could Look Like,” March 26, 2020, available at https://www.law360.com/articles/1257185/what-online-jury-trials-could-look-like.
 See, e.g., Jamiles Lartey, “The Judge Will See You on Zoom, But the Public is Mostly Left Out,” Apr. 13, 2020, available at https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out.
 The Supreme Court has said multiple times that states do not have to provide jury trials in civil cases. Most states nonetheless guarantee the right to a civil jury trial, and (whatever the case) they must do so in cases decided under federal law.
 Justin Sarno & Jayme Long, “Social Distancing & Right to Jury Trial Must be Reconciled,” Apr. 12, 2020, available at https://www.law360.com/articles/1261476/social-distancing-and-right-to-jury-trial-must-be-reconciled (emphasis added).
 Thornton v. Snyder, 428 F.3d 690, 697 (7th Cir. 2005); Jones v. Hamelman, 869 F.2d 1023, 1029-30 (7th Cir. 1989) (using a similar balancing test).
 “In sum, we conclude that … the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.”
Maryland v. Craig, 497 U.S. 836, 857 (1990) (emphasis added).
 Some commentators have worried that jurors will pay less attention in an electronically conducted trial than in a “real” trial. Others have worried that—especially in the criminal context—jurors or judges may be more willing to give out harsh penalties (to either party) if they are not in the same room as the parties. These concerns are not without merit.
 Valenzuela-Gonzalez v. U.S. Dist. Court for Dist. Of Arizona, 915 F.2d 1276, 1279 (9th Cir. 1990).
 Id.; Fed. R. Crim. P. 43(a).
 United States v. Guild, 2008 WL 191184, at *3 (E.D. Va. Jan. 17, 2008) (“Recognizing both the importance of live testimony in a criminal trial and the fact that the Confrontation Clause is not implicated by this testimony, the Court will use Federal Rule of Civil Procedure 43(a) as the threshold showing for the use of videoconferencing in this instance.”)
 Daniel Devoe & Sarita Frattaroli, “Videoconferencing in the Courtroom: Benefits, Concerns, and How to Move Forward,” Boston, Mass.: Massachusetts Social Law Library, 2009.