By Michael Shammas, Research Fellow
In our May newsletter, at the prescient suggestion of our late founder Steve Susman, Research Fellow Michael Pressman and I wrote a memorandum regarding the constitutional and practical viability of virtual jury trials.[1]
In our memorandum, Michael and I noted that COVID-19’s scope leaves no institution—private or public—untouched. The pandemic has fundamentally altered our political, environmental, legal, and economic environment, which seems to imply that—in Darwinian fashion—the institutions that survive will be those that adapt.
Initially, it seemed our institution of interest—the judiciary—might have challenges adapting. Trials in most jurisdictions (jury and bench, criminal and civil) were continued, often indefinitely. Speedy trial deadlines were suspended or extended.
Faced with what may be the greatest risk ever posed to the American judiciary—the possibility that civil and criminal jury trials could be delayed for years—Steve Susman directed us to address remote trials.
Assessing the Constitutionality & Practicality of Online Trials
The first order of business involved determining whether trials could be constitutionally conducted over remote videoconferencing platforms like Zoom. The second order of business involved figuring out just how an online jury trial would—or could—work. (This latter endeavor involved, first, brainstorming protocols for online jury trials and, second, hosting a mock civil jury trial—detailed on our website and available on YouTube—with the help of judges, NYU students, and volunteer attorneys.)
While the mock jury trial we hosted in May focused on the practicality of online proceedings, the memorandum Michael and I wrote[2] focused on the state and federal constitutionality of such proceedings, ultimately concluding that—though due process concerns might render an entirely digital jury trial unconstitutional in criminal cases—applying a balancing test to our public health crisis weighs in favor of allowing online civil jury trials. In fact, permissibility could be the wrong issue entirely. Online civil jury trials could be constitutionally necessary in order to actualize the Seventh Amendment’s requirements.
Although we endorsed the constitutionality of digital jury trials in our memorandum—and although the practicality of such trials was vindicated by our mock trial—we noted from the beginning that even civil jury trials might be impossible to conduct entirely online. The risks would be especially great if confidential proceedings such as jury deliberations were held online, as it would be impossible to guard against a juror recording the session. Because of such issues, and since a digital trial will never be as secure as a physical one, we concluded that courts may need to conduct “mixed” trials—partly online and partly physical.
From Theory to Practice
By necessity, our May memorandum and virtual mock trial were theoretical; with the passing of time, it has been interesting to note how theory has translated into practice, and (specifically) how various jurisdictions are safeguarding the right to a civil jury trial. Many jurisdictions have arrived at several of the same conclusions we did, especially regarding the (constitutional and practical) impossibility of hosting entirely virtual trials due the necessity of holding sensitive proceedings like jury deliberations inside the actual courthouse. As with so many things in law, then, a mixed answer—a “mixed” online and physical model—seems most able to address the constitutional and practical implications of jury trials during COVID.
Official Protocols
As a research institution, the Civil Jury Project’s protocols were obviously strictly advisory, which is why it is exciting that so many jurisdictions are beginning to tackle the issue—and to do so in depth.
For example, the Yolo County Superior Court of California has put out exemplary guidelines for jurors and attorneys that minimize the potential for viral spread. Effectively, the county has determined that only proceedings that cannot be constitutionally, practically, or confidentially (e.g., jury deliberations)[3] done over videoconferencing should be carried out inside the courthouse, and then only with commonsense safeguards such as social distancing or spaced-out juror seating.
To Yolo County’s credit, while it requires jurors to be present for deliberations, it has struck a balance between the government’s duty of care and every citizen’s civic duty by holding jury deliberations not in the usual cramped jury room but instead inside courtrooms with plentiful social distancing.
What Other Jurisdictions Can Learn from the Superior Court of California
In my view, the Yolo County Superior Court did several things right.[4] Adopting guidelines like Yolo County’s—and studying those guidelines—will give other jurisdictions the best chance to balance public health against the need for a functioning jury system. With that in mind, per its Jury Reporting Instructions for COVID-19, the Yolo County Superior Court:
(1) Included easy step-by-step instructions for jurors to report to their summons. Indeed, the court’s website includes hyperlinked—and quite large—buttons enabling potential jurors to respond to summons by Zoom or phone. Given increased technological proficiency by the wealthy, the young, and the educated, the inclusion of such an intuitive system is essential if we wish—as we should—to achieve a representative cross-section of the community.
(2) Made it absolutely clear not only that “[s]ummoned jurors who have health concerns related to COVID-19 may be allowed to be postponed,” but affirmatively wrote that “[i]f you are sick with respiratory symptoms, a fever or a cough, DO NOT REPORT.” For these potentially COVID-infected jurors, the court included a link “to request that your jury service be deferred.” This discourages potentially sick jurors from infecting other jurors while also ensuring—through the deferral link—that jurors do not unjustly avoid jury duty.
(3) Outlined safety protocols clearly and in simple language, including:
a. requiring jurors, judges, and lawyers wear a mask inside the courthouse at all times;
b. staggering reporting times to minimize the number of citizens in the Jury Assembly Room and courtroom, while also marking and distancing juror seating;
c. ensuring that every hearing or proceeding that can be done virtually is done virtually, including jury orientation and hardship hearings;
d. creating a technological “Jury Service Staff” available to answer questions by phone or email. (This ties into the importance of ensuring that the less technologically literate have an equal chance to serve.); and, most importantly,
e. acknowledging the “challenging times” we live in—therefore making jurors feel appreciated and implicitly acknowledging the risk they’ve taken via potential COVID-19 exposure—and thanking citizens for their “willingness to serve as a juror.”
The only language I was initially concerned about was a stipulation that “[m]embers of the public may be precluded from attending jury trials in person, to ensure social distancing.” Although I understand the need to sometimes limit access to courtrooms—especially now—I also understand the need for a government to allow public access to trials in order to hold judges, jurors, and attorneys accountable for the decisions they make about civic life. That said, so long as Yolo County has a non-discriminatory mechanism to limit access to courtrooms, the balance between the ideal and the practical likely weighs in favor of its decision to reserve this power.
Conclusion
As the Orange County Superior Court writes, few institutions are as central to democracy as juries. By developing “a plan that … puts … health and safety [as a juror] at the center”—what it calls “safe access to justice”—the Orange County Superior Court, the Yolo County Superior Court, and other California courts have safeguarded the Seventh Amendment. As this crisis continues, it is essential that more jurisdictions quickly examine how they can restart their jury trials as expeditiously and safely as possible.
In a time of such social unrest, juries are more fundamental than ever. While we must guard against COVID-19’s risks, we also must ensure—like California—that fundamental institutions continue operating. This is especially true with regard to the civil jury system, for history teaches that emergencies can be used as pretexts, by not only governments but also private institutions, to suppress individual liberty. As Thomas Jefferson knew, trial by jury is “the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”
Personal Addendum
I write this from Memphis, TN, where I find myself preparing for a clerkship with the Sixth Circuit Court of Appeals. Although this year has been strange for us all, for me it was a good one. I especially want to thank:
· The Honorable D. Brock Hornby—for whom I clerked—for notifying me of the opportunity, encouraging me to apply, and being a constant source of sound advice and mentorship.
· The late Steve Susman for taking me onboard and teaching me the ropes.
· Judicial Director Mark Drummond for giving me the time, space, and advice to practice law on my own this year (plaintiff-side and pro bono) when I was not engaged in research.
· Research Fellow Michael Pressman for his advice on how to go about pursuing a career as a law professor.
· Professor Sam Issacharoff for suggesting what is and is not appropriate for inclusion in a newsletter published by an academic institution.
· Kaitlin Villanueva for coordinating travel (and … everything else) for the Civil Jury Project.
· Rachel Jones, for invaluable conversations and for taking care of my precious puppy, Grace, when I had to leave the faculty building; and
· Sabrina Rambert, our beloved security guard at NYU Law’s Wilf Hall, who was and is a ray of sunshine to all lucky enough to be touched by her light.
I will end on a slightly unconventional note. On August 4, a massive explosion shook Beirut, Lebanon, the past home of my parents and the current home of my extended family. Likely due to negligence bordering on recklessness by the Lebanese government and port authorities, the explosion killed hundreds and left more than 300,000 homeless. If these bereaved, injured, and homeless people lived in the United States, they could have utilized our system of civil law to have a chance at recompense. Instead, with a corrupt judiciary and a jury-less (and justice-less) legal system, Beirut’s citizens must rebuild on their own, with unanswered questions and no ability at all to be made whole by their negligent government.
We Americans sometimes take things for granted. The Bill of Rights—especially the Seventh Amendment—is a great treasure. It is a treasure that many living in countries without functioning judiciaries, places like Lebanon, desperately desire. So, though I now leave the Civil Jury Project, I hope the project continues its important mission—to protect the most important safeguard of individual liberty ever conceived: The civil jury.
Thank you,
Michael Shammas
[1] The memorandum, published in both the Civil Jury Project’s website and—with slight modifications—on SSRN, was widely circulated, not only on blogs but also on university websites compiling COVID-19 research. As a result, over the remainder of the summer we continued conducting related analyses, including (for example) in articles on (1) how judges can optimize time and attention during virtual jury trials and on (2) the challenges of achieving a representative cross-section in virtual trials.
[2]Supra, n. 1.
[3] As the Civil Jury Project noted when we created protocols for online civil jury trials, it will be impossible to safeguard the confidentiality of jury trials in an online trial. Even if software is installed by federal or state courts to guard against recording, and even with the threat of criminal penalties, jurors or their associates could—especially in pivotal or controversial cases—use a smart phone to record the proceedings, either via video or audio.
[4] I surveyed multiple court websites west of the Mississippi, and the vast majority did notinclude protocols of the same depth. (Exceptions included states like Washington which, like California, were hit hard and early by COVID-19).
Michael Shammas is a Research Fellow at the Civil Jury Project.