It is essential that courts develop plans to adapt jury trials to our current public health crisis. Thousands of defendants are currently in limbo around the country awaiting trial as COVID-19 has kept jurors out of court. The use of video technology to facilitate remote jury trials, however, must be implemented with caution.
At a time when virtual court proceedings are becoming the norm, Collin County, Texas, became the first in the United States to experiment with virtual jury trials. The judge who oversaw the county's first nonbinding summary jury trial commented in an interview that its success "showed us jurors can appear remotely." A move to virtual jury trials in the criminal context, however, carries risks that cannot be overlooked.
First, and most obviously, defendants' constitutional right to confront witnesses in criminal cases may be compromised, as well as defense attorney's ability to effectively advocate for their clients. What would a cross-examination look like on a platform like Zoom? Without the immediacy of an in-person exchange, would leading questions, frequent interruptions, and attorneys' reliance on tone, body language and social rapport with jurors have their intended strategic effect?
As worrisome is the possibility that as the judiciary transitions to video technology, defendants may opt to dispense with their constitutional right to a trial by jury altogether. Concerns about the security of platforms like Zoom, and their ability to preserve the confidentiality of attorney-client communications are other key considerations.
Issues of equity for jurors should not be overlooked, either. Virtual jury trials anywhere else in the country can only accommodate citizens who have computers and broadband internet at home, which cannot be taken for granted. Excluding jurors on the basis of limited access to technology would undermine the representativeness of jurors and jeopardize a defendant's right to a jury of her peers in the process.
Rather than take an all-or-nothing approach to virtual jury trials, jurisdictions nationwide would be wise to follow the lead of those contemplating "hybrid" models. Jurors may choose to report to court in-person if appropriate social distancing measures can be implemented. Members of the public and prospective jurors who are particularly susceptible to the virus, or who develop symptoms of illness at any point during a trial or deliberation, may benefit from access to viewing a closed-circuit simulcast of the trial in other parts of the courtroom, if not remotely.
Closing the "digital divide" for those who seek this accommodation should be a greater priority than entering a brave new world of peerless jury trials.
Anna Offit teaches criminal law, evidence and criminal jury reform at the Southern Methodist University Dedman School of Law. She wrote this for InsideSources.com.