By Stephanie Parker and Jennifer Weizenecker
I. Jury Selection 
Even in-person jury selection is a complex process with many moving parts. Moving to a remote platform would amplify those complexities. The following could potentially mitigate those new difficulties, helping jury selection succeed in a remote platform.
One consideration for implementing remote jury selection procedures is scale. The court and counsel will want to see every juror who is actively participating in voir dire . But even a group of 50 prospective jurors would be unworkable with the limitations of current, commonly used technology, including limited screen size and the number of participants visible in a virtual meeting room. During the mock trial, 12 potential jurors participated in voir dire . If a trial requires a large number of potential jurors, it will be necessary to divide the group into smaller panels (likely no more than 12 jurors), so that they are all visible and able to communicate effectively with the judge and counsel. Voir dire could be conducted one group at a time and repeated until enough jurors remain after hardships and cause challenges to begin peremptory strikes.
Use of more extensive questionnaires may help to limit the number of jurors who will need to participate in the video voir dire process. Although many trial lawyers and trial judges have strong opinions on the use of questionnaires, use of a questionnaire may be a necessary step to efficiently cull jurors before the necessarily time-intensive remote voir dire process. Jurors could fill out a questionnaire with hardship and bias questions online, and jurors who have a hardship could be excused prior to the virtual jury selection. Similarly, the parties could agree to dismiss a potential juror for cause based on questionnaire answers before the virtual jury selection. There is a risk, however, that having the jurors complete questionnaires with bias questions online and outside the view of the court or court personnel will increase the chance that jurors research the case.
Technology For Static Jurors
During in-person jury selection, jurors are typically assigned identification numbers and seated in a particular order. They then remain in that same order for the remainder of jury selection. A current pitfall of remote technology is that juror positions do not remain static: Participant windows are re-ordered based on who is speaking or the order in which the participants enter the remote meeting after breaks. This makes it difficult to keep track of juror responses using seating charts or similar organizational devices often used during in-person voir dire .
Perhaps less obvious, though, is the impact non-static juror windows will have on the “muscle memory” of jury selection. Lawyers conducting voir dire often will mentally divide up the room into smaller sections. For example, there may be a juror who has given concerning answers in the back left hand corner of the room. In person, it is easy to glance in that direction, quickly see the juror, and follow-up or ask additional questions based on something another juror has said. The court uses the same visual cues and will often refer to a juror by his or her location in the courtroom. In a virtual setting with constantly re-ordered jurors, the visual cue of seeing jurors in a particular seat or part of the room is lost.
A remote platform that has the option to lock the screen location of participants would help to recreate the courtroom setting.
Remote jury selection will limit arguments based on a juror’s body language. Both lawyers and judges make arguments for disqualification based on demeanor, and body language can be particularly important for Batson arguments (either for or against a strike). These types of arguments will not be as compelling in a remote setting, and judges may be less willing to rely on body language. The transcript of what the prospective juror says during voir dire will become even more important. Lawyers should make sure to have a real-time transcript during jury selection.
II. Juror Attention and Sequestration
Because jurors will be using a computer or tablet to view the trial, they will have access to other types of software during the presentation of evidence. This creates several potential problems: first, that jurors will not be paying attention to the trial because of the physical difficulty of staring at a screen for many hours; second, that jurors will be multitasking ( e.g., checking their email, surfing the internet or playing video games); third, that jurors will conduct independent research on the topics being discussed in the trial, the witnesses who are testifying, or even the lawyers themselves; and finally, that jurors can contact one another  or a member of the public to comment on the evidence being presented or to discuss the case in general, thereby violating the instructions they are given at the beginning of trial.
Potential Technology Solutions
Restrictions need to be placed on jurors’ access to these types of distractions while watching the trial.
One potential solution is to provide jurors with a court-issued tablet or laptop to use. The tablet or laptop would have only the software required to view the trial, and would not have other functionalities, such as internet access. This
seems feasible as some school systems have given tablets to students to facilitate remote learning. This would also eliminate the need for jurors to have their own technology, which would reduce the potential for remote jury selection to prevent participation of lower income individuals who do not have their own technology.
Another potential solution is to use software that will limit jurors’ access to other programs on their computers, such as the software used by educational institutions or during the bar exam to ensure that students taking online exams (or using their computer to complete exams) do not have access to the internet or other resources while taking the exam.
Alternatively, jurors can be required to download software that alerts the court when a juror is using a program other than the platform being used to stream the trial.
These are imperfect solutions, however, because jurors will still have the ability to use their phone or other device undetected during the trial. Hopefully, the judge can mitigate this by watching for visual cues that they are paying attention, much as the judge would in a courtroom. Requiring jurors to be on the camera from the waist up could assist the judge. With appropriate precautionary measures, the risk for a remote trial could be reduced to something like that presented by a regular trial, where jurors could disobey their instructions to do research when they are on breaks or at home after the court day.
Jurors will also need clear instructions tailored to the remote trial. For example, in addition to the standard jurors’ instructions, the court should instruct jurors that:
- they should leave other devices in a different room during the presentation of evidence;
- they should not contact anyone during the presentation of evidence;
- they are not allowed to record the evidence (particularly where there are confidentiality concerns);
- they should not have anyone else in the room with them.
To ensure that jurors do not lose focus, courts might impose time limits on aspects of the proceedings. To avoid exhausting the jurors, the length of trial and forced screen time should be reduced. Courts should impose strict time limitations to shorten the number of hours per day and the number of days needed to try a case. Courts should also consider giving jurors frequent breaks.
III. Remote Platform Created For Trials
Currently, there is not a remote platform designed for jury trials. It is our understanding that the Civil Jury Project at NYU Law School has contacted Zoom urging the design of an intuitive, user-friendly, litigation/trial specific platform resembling a real courtroom. Here are some additional suggestions related to the design of that platform:
- As stated above, allow the locking in of juror position on the screen;
- As stated above, put limitations on the chat function;
- Ability of judge (host) to control what participants see on their screen instead of participants using individual settings, so that everyone sees the same thing on their screens;
- Objection button for counsel to object, which would eliminate the need for counsel to verbally interrupt in front of the jury;
- Integration of documents with the platform including: impeachment folders, exhibit folders, and verdict form;
- Better capabilities for interaction with demonstrative aids, especially when using PowerPoint.
 Jones Day participated in the recent NYU Law School Civil Jury Project and NITA remote “Zoom” mock trial held on May 28th, 2020. One of the purposes was to obtain a feel for the hypothetical challenges that such a remote trial could present to counsel, a court, and a jury. As with most such exercises, this one was highly stylized, scripted and truncated to present certain situations and issues. Notably, the format expressly stated that all potential objections to such a trial had been “overruled” by the pretend court. Indeed, the potential objections and their efficacy were not part of the exercise, and the fact that the “trial” proceeded was no reflection of the relative merits of such arguments. Our participation and our observations in this article are made without any assessment, analysis or position about the procedural correctness of such a remote trial. Specifically, Jones Day is not endorsing a remote or Zoom trial by its participation or through this article.
 Zoom, for example, includes a “chat” function that by default would be available to the jurors during a virtual trial. This function allows jurors to privately or collectively contact one another during the presentation of evidence.