Protocols for Jury Selection in Videoconference Trials 1.0

Prepared for the NYU Civil Jury Project on May 16, 2020.

I. Obtaining a fair and representative cross-section of jurors from the community

Effective planning for video jury trials during social distancing methods requires the recognition that there is a “digital divide” (those that have access to modern technology and a connection to the internet) as well as a “technological divide,” (individuals who have the necessary computing equipment but are not up-to-speed on how to effectively use them, the internet and software).

To address these issues, the Judicial System should not consider these divides as impediments or barriers to jury service, but rather as opportunities which can enhance citizen participation in the privilege of being jurors.

The Zoom platform, embraced by many Court systems around the nation, is a highly flexible medium. It is also extremely adaptable, and scalable. Laptop and desktop computers, as well as tablet devices are more advanced and versatile than even just a few years ago. Internet service provider speeds and broadband capabilities are increasing yearly in various parts of the nation. An example of this is the construction of “5G” networks across the United States and an ever-growing reach of broadband cables touching and expanding in neighborhoods. Mobile “hotspots” (available on cellular phones and tablets) and public “Wi-Fi” systems offer increasing capabilities which the Courts can leverage.

One model for addressing the challenges of the digital and technical divides is to have a publicly financed laptop loaner program for residence-based jurors. Simply stated, since potential jurors will express concern about going to the traditional Courthouse for jury service, with video conferencing technology, the Courthouse can go to the jurors, where they reside. Those that have their own devices can use them (with security restrictions) and those that do not can ask to participate in a secure laptop loaner program. The advantages of such an initiative are:

  1. Financial means in terms of owning an appropriate computer are no longer an impediment to serving on a jury; and
  2. The experience which is gained by the juror in having access to the technology will introduce those who do not have the technical experience by orienting them to the computer literate culture.

A second model is for jurors to report to secure, properly staffed and equipped buildings, constructed or retrofitted for social distancing. These structures can include schools, libraries, satellite Courthouses, “We Work” type office sharing centers, hotels, college buildings and even arenas and convention/meeting center complex facilities.

During the period of population spacing (social distancing) each juror can have their own small, but partitioned or enclosed workspace, which is equipped with secure and maintained computers, cameras, and larger screens. The advantages of such a floor plan include:

  1. Jurors can be monitored to ensure the integrity of the jury trial process, to eliminate distractions.
  2. Glass or plexiglass walls or partitions between jurors, with appropriate sound proofing, can provide a safe and pleasant atmosphere for juror service.
  3. Court Deputies can work with Information Technology employees to assure immediate response to technical issues.
  4. Such facilities can provide quiet spaces, safe air conditioning and filtered ventilation to assure juror concentration (a feature that may not be available in all residences when needed).
  5. The locations can be decontaminated nightly to prevent the spread of the COVID-19 virus.

II. Once a group of jurors is selected from the Jury Assembly “Room” they proceed for further Voir Dire

In many jurisdictions, once a group of potential jurors is selected for the final voir dire process, questionnaires are used to obtain general background information. While some Judges forego this step and leave it to the attorneys to obtain such data from jurors during this section of the trial, other Judges ask questions that are required by state Supreme Court rules.

If the panel of potential jurors is in different locations, and not all in the same socially distanced room, each can be sent an on-line list of questions using DocuSign, HelloSign or some other on-line electronic signature service. The questions can be filled out on-line and sent back to the Judge or her or his in-Court Clerk for review and distribution to the attorneys. This process is efficient and can be accomplished quickly. However, the jurors must have the ability to type and must be computer literate. For those that do not, they can be contacted by the Judge and the lawyers (with the Court Reporter) individually and asked the questions orally to create an appropriate record.

Depending upon local Court procedures, these questionnaires would be followed by the normal voir dire process by the attorneys, in preparation for a conference with the Judge to exercise any applicable “for cause” and peremptory challenges.

The maximum number of images on Zoom for desktop computers is 25. Each juror should name himself or herself, and if assigned a number, it should be visible by allowing jurors to “rename” themselves when on Zoom. For example, “J1 John Smith.” (The number of characters may be limited depending upon the quantity of images on the screen, so abbreviations are recommended).

The Voir Dire process can proceed as it would in any jurisdiction. In proceedings where there are multiple parties, and the jury selection process will necessarily involve more than 12 to 15 potential jurors, consideration can be given to conduct Voir Dire for initial page group and separately for each additional desktop Zoom page. This will enable the Judge and attorneys to view each juror in that page group, and not have to switch to additional pages. If more jurors are needed, inquiries can proceed for each subsequent group page. (Note, until an advanced feature for regular Zoom users is available, when participants talk or turn off their devices, the image tiles move, and can affect who is on what page at any given time. Suggestions are being made to Zoom to eliminate this problem. One present solution is that potential jurors who are not initially being questioned, can be placed into their own “Breakout” rooms, until they are virtually admitted into the trial for their portion of the Voir Dire process.

For potential jurors that require confidential responses, they can be put in a breakout room with the Judge, the lawyers, and the Court Reporter to address any special issues raised during Voir Dire. This process can be especially helpful if a juror may tend to “poison” the other members of the as yet non-selected jury panel. Once done, that room’s participants can re-join the general Zoom session. Otherwise, individual juror questioning is not recommended, as many times other potential jurors may have reactions to what was stated by another member of the panel. Those reactions can be helpful to the lawyers and Judge in making their final jury selection determinations.

III. Side-Bar exercise of strikes

Once the Court is ready for the attorneys to make their selections, each attorney and his or her Client should be permitted to enter their own breakout room to confer. Counsel can call the Court to be re-admitted into the main session when ready.

After each party is re-admitted into the general proceedings, the Judge can enter another breakout room with the lawyers and rule on cause, peremptory challenges, back strikes, and any other issues.

After work is completed in the breakout room, everyone joins the general session, and jurors are notified if they have been selected or are excused.

The selected jurors are then sworn in, and further proceedings can begin.

IV. Once a jury is selected

Basics on how to conduct a Virtual Jury Trial are based upon the experience gained from the 17th Judicial Circuit in Broward County, Florida. They are summarized in the PDF Virtual Trial Blueprint diagram.

The Zoom on-line platform is highly adaptable, and its considerable flexibility is essential when considering different jurisdictional demands and requirements. In all instances, however, the following points will help maximize the Virtual Jury Trial Process:

  • Each jurisdiction should consider special additions to their opening jury panel instructions. These instructions can be focused on the unique nature of the virtual trial process, including how jurors can ask questions or alert the Court of technical concerns, the note taking process, the need to eliminate any distractions and to focus throughout the sections of the trial when utilizing technology and the Zoom communication platform.
  • The Court should consider remarks about why a virtual jury trial is being conducted, and that this method of trial is to be considered as if it were being held in a Courthouse with everyone physically present.
  • The Court should also consider allowing juror questions during the trial. If jurors know they can ask questions they are more engaged in the process.  A procedure whereby jurors can submit their questions via chat or other means for the review by court and counsel should be explored.