By Richard Gabriel
Federal and state courts in all 50 states have postponed jury trials and are struggling to try and maintain court functions and access to the justice system in light of the COVID-19 pandemic and public health concerns. As a result, there is a provision in Congress’ new $2 trillion proposed COVID-19 relief bill that allows for remote proceedings, such as video and teleconferencing in some court hearings.
Also, starting this week, the U.S. District Court for the Southern District of New York will give grand jurors the option of convening and deliberating via a videoconference system. Rule 6 of the Federal Rules of Criminal Procedure does not mandate that the grand jury must all congregate or deliberate in the same room. While there are jury instructions and statutes that speak of “open court,” “the jury room,” and that “jurors must be present,” there are also no rules in the federal or state courts that explicitly state that trial participants must be physically present during a trial proceeding.
Last week, 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 concerns, Judge Nathan stated the court was under “extraordinary circumstances” and in “untested waters.” After being assured the juror would be secluded in their apartment, Judge Nathan stated to the juror, “You must think of yourself as present in the jury room.
At the same time in California, all jury trials have been stayed for 60 days to comply with the state’s COVID-19 lockdown rules. But the statewide order by Chief Justice Tani G. Cantil-Sakauye also stated, “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.”
How could jury trials be conducted online? First, a trial is fundamentally an oral advocacy forum where evidence is communicated through verbal testimony and shown documentary and demonstrative evidence. Legal instruction is also given verbally. As long as all jurors are present, can hear and see witnesses and evidence, listen to instructions, and all deliberate, there is nothing operationally in a trial that would not lend itself to an online function. So, what would a hypothetical model for online jury trials look like?
1. First, jurisdictions would contract with a videoconferencing service like Zoom, Adobe Connect, Google Hangouts Meet, GoToMeeting or Webex as their technology platform. These platforms would handle all pretrial conferences and motion practice. Judges, courtroom staff, court administrators, attorneys and witnesses would be given tutorials to view to help them use the technology more seamlessly and to help with camera placement, sound levels and lighting to make their presentations more uniform.
2. In pretrial conferences, the judge and the parties would establish the trial schedule and the basic rules for using the videoconferencing technology. As jurors would be sitting in front of a computer watching the trial, human-factor studies that discuss technology attention spans should be considered. Taking more frequent but shorter breaks to ensure jurors are tracking and retaining the testimony and evidence might be helpful.
3. In a jury summons, jurors would also be asked whether they have a working computer with a camera and functioning internet access. If they do not have one or both, they could be directed to a government office or cubicle with appropriate social distance to log on to a designated computer with a camera and internet access.
4. For jury selection, jurors would be sent a link to an online questionnaire via Survey Monkey, Google Forms, Qualtrics or SurveyGizmo. They would fill out this questionnaire under oath.
5. The judge and attorneys would review the juror questionnaires and in a pretrial videoconference, would make preliminary determinations about hardship or cause challenges.
6. Jury selection could be undertaken in two possible scenarios: Jurors can log on at scheduled times and be individually interviewed by the judge and attorneys, or an entire jury panel can log onto a webinar type of interface.
In the second scenario, the judge and attorneys can ask questions of the entire panel. Jurors who have responses can identify themselves through chat responses or virtual hand raises on the site and can then be individually questioned by activating their cameras. Based on their responses, attorneys can exercise cause and peremptory challenges until they have a jury panel.
7. Once the jury is selected and sworn, they would log onto a separate initiated meeting or videoconference call. They would be given preliminary legal instructions by the judge as well as instructions about using the technology in their service as jurors. They would be instructed to isolate themselves in a part of their homes so that others in their household could not view or listen to the trial. They would be instructed not to do any internet research or discuss the case, as they would be instructed in an in-person trial.
If needed, a court clerk or bailiff could monitor the browser of the juror that is logged on to the videoconferencing platform to make sure they are not conducting their own research or scrolling through news or social media feeds during the trial sessions. During the trial, the juror’s camera would be turned on so that the judge, attorneys, court personnel and witnesses could also see the jury.
8. Because there is a First Amendment right to view public trials, the specific trial’s login information can be posted on a court website.
9. Many of these videoconferencing platforms allow for the documents or video to also be shown during presentations, which would let attorneys or witnesses show exhibits and video deposition clips, and use PowerPoint, Trial Director, TrialPad or other presentation software during their opening statements, direct and cross-examinations, and closing arguments.
10. Witnesses would also log onto the videoconferencing platform and be sworn in and examined by the attorneys. Objections would be handled similar to how they are normally handled in trial.
11. A court reporter would also be able to transcribe the proceedings, or a LiveNote Stream of the trial can also be recorded. These platforms also allow the recording of the entire proceeding.
12. If the court typically allows juror questions during the witness examinations, jurors can simply submit those questions with the appropriate chat tool during or after each of the witnesses. Jurors could also take notes on their computers or on a separate pad, with an admonition to keep their notes away from others in their household and not to review their notes outside of court hours.
13. After closing arguments, jurors would be given jury instructions by the judge and instructions on downloading a single verdict form once they have chosen a foreperson. They would also be given some guidelines on how to make sure that all the jurors can have the opportunity to speak and be heard during their online deliberations. They would then log onto a separate videoconferencing meeting from the trial site in order to preserve the confidentiality of their deliberations.
The jurors would make sure all jurors (except the alternates unless allowed) were present and that all of the jurors could see and hear each other. If jurors have questions for the court or would like to hear readbacks or see exhibits, they could communicate with the clerk or the judge via a secure channel. If need be, they could be sent relevant exhibits, or even hear playbacks of the testimony. Jurors would then deliberate to a verdict, fill out an electronic verdict form, and send it to the clerk or judge.
14. On the original trial site, all of the parties and the jury would reconvene for the reading of the verdict. The parties could poll the jury, if needed.
By no means is this a perfect system. Last week, closing arguments were held via Zoom in a voting rights case and encountered numerous glitches as U.S. District Judge Cathy Seibel and the attorneys tried to operate the new technology. There will always be inevitable challenges of all technology — including power outages, slow internet speeds, comprehension problems, and user error — and the need for the judge, attorneys, witnesses and jurors to be present for prolonged periods online.
Every court would need a help line and computer-savvy personnel to make sure these systems run relatively smoothly. There also may be statutory hurdles that need to be addressed by state legislatures in order to allow these types of trials to proceed, especially for criminal cases. Civil trials would more readily accommodate these flexible trial solutions through the parties entering into a stipulation agreement or by proceeding as private jury trials through mediation or arbitration services.
These trial technology solutions could also accommodate more traditional dispute resolution practices such as mediation, arbitration and jury mediation but would probably not work as well for long and complex cases. The parties would have to be more organized and efficient in presenting cases. These trials would tend to disfavor surprise trial strategies or personality-driven advocacy where some attorneys count on persuasive argumentation over case facts to influence a jury.
But, in a strange way, online trials would accomplish what the courts have always aspired to be — a forum where fact-finders objectively and analytically evaluate the evidence in a case while minimizing the extraneous influence of attorney, witness, judicial and even other jury personalities.
We live in unprecedented times, but these challenges can also give us opportunities to create innovative solutions to solve seemingly insurmountable problems in order to preserve our system of justice and constitutional rights.
Richard Gabriel is president of Decision Analysis Inc., co-author of “Jury Selection: Strategy and Science” and the inventor of Jury Mediation, an alternative dispute resolution tool. This piece was originally published in Law360 and is republished here with permission.