I began my legal career with a word processor, handwritten outlines, and learning to Shepardize “on the books.” Research meant a trip to the library, carrying heavy case books back and forth. I dictated letters, memos, and briefs. Weeks later, I proudly walked to court with stacks of papers and took my seat next to other lawyers waiting for cases to be called. After arguments I’d talk with friends from law school I’d see in court. If there was an exciting trial in the courthouse and I had time, I would be tipped off by the court officer, and I’d go in to watch. The best part of any trial for me, a student of human behavior, was jury selection. Where else could you hear the stories of so many New Yorkers? Who needs Broadway? I could sit there in a courtroom and watch voir dire for days.
2020. Just as I never imagined I would need a computer, as long as I had a legal pad, I also never thought my life would resemble an episode of the Jetsons. The Jetsons meets dystopian sci-fi novel. Sheltered at home I order anything I want with a swipe of my phone. I have had a doctor appointment on Facetime, a consult with an accountant via Skype, and too many Zoom business meetings to count. I began my legal career in a suit with a litigation bag, twenty-two years later, I continue it in yoga pants with a phone dotted with colorful applications that can do absolutely anything. Or can it?
As we Zoom into the age of the Jetsons during a health crisis, we the legal community find ourselves asking, can we conduct jury trials virtually? That’s the easy question. As we in the trial consulting community know, yes of course we can. This is what we do! The hard question: Should we? The answer. Well, that’s the thing about hard questions, there often aren’t answers, only more questions. So legal community members, I present to you the difficult questions we must ask ourselves. In law school we were expected to come up with answers by asking more questions. Socrates, meet the Jetsons.
In-Person COVID Juries
In some parts of the country courts are starting to open. Simple court procedures with few logistics and people have moved forward. However, the sacred jury trial, the Constitutional process central to our justice system remains on hold as we continue to examine the costs and benefits of in-person jury trials during a highly contagious health pandemic with no known cure, versus the virtual alternative.
In-Person COVID Trials, Logistical Issues
Some of the easier discussions before tackling the more theoretical implications are logistical. How will an in-person jury trial during COVID look? Will those receiving a summons be granted greater leeway to defer, and if so will the criteria be objective, such as age, health status, economic or essential worker status? Or will there be more of an honor system in place, where a deferral will be automatic if one chooses? Once it is determined there will be a large enough jury pool, how many cases can proceed at a time? In a non-pandemic world it is good to have many cases proceeding, so if a prospective juror is stricken for one type of case, they can go back into the pool and be selected for another. In a pandemic world however, it is probably too risky to have many cases proceed simultaneously. Will jurors be required to take a COVID test? Have a temperature check? Once in the jury pool room, how should the jurors be seated? Is there enough room to be within 6 feet? Must everyone wear a mask? How will the jury pool room be cleaned? How often? Should these questions be resolved, and we make it to the courtroom, how will the jurors be seated for voir dire? Will spots be cleaned once a prospective juror is stricken and another takes their place? Will jurors be able to adequately hear the judge, lawyers, and witnesses when they are wearing a mask? What about assessing demeanor without having the benefit of seeing half of their face?
In-Person COVID Juries, Theoretical Issues
Logistic issues aside, one of the primary concerns with a traditional, in-person jury regards the statistical concept of "selection bias" which is when the jury pool seated, is not representative of what the jury pool would look like pre-COVID. An in-person COVID jury pool will likely skew younger and healthier as older people and those with medical conditions may defer service. It may skew a combination of unemployed or those very securely employed as those who are precariously employed, may defer service for fear of losing their job. There will likely be related childcare issues for potential jurors, so the jury many skew heavily toward those who do not have young children. The jury may have a dearth of essential workers such as those in the healthcare profession. The jury may also skew toward those who have a car and do not need to take public transit. Since COVID is disproportionately affecting minority communities, there may be a disparate impact regarding resulting representation issues. All of the above concerns can of course lead to appellate issues.
Virtual Jury Trials
Logistical issues
Many of us in the legal community are becoming increasingly comfortable using technology for educational webinars, large conferences, hearings, and mediations. In fact, attorneys and mediators rave about the convenience, efficiency, and cost savings of conducting these procedures virtually. In trial consulting we have been conducting online mock trials for years and continue to do so during the pandemic. The technology and the logistics are not difficult and are in fact just slightly more involved than a mediation. Unquestionably, the largest benefit is of course there is no threat to health, with the added side benefit of not having to deal with any of the related logistical issues discussed in the live jury trial section. No masks, no cleaning, no distancing.
Theoretical Issues
The more difficult issues with the virtual jury trial model are theoretical issues, many which may be appealable. Just as we discussed selection bias regarding an in-person jury trial, selection bias is going to be an issue with a virtual trial as well. Although the elderly and those with health conditions may not face the same biases as they would for an in-person trial, there will be other selection biases. Those who do not have access to technology, or who do not know how to use technology, will likely not be able to participate. A distinct advantage for one side in a highly technical case, and a disadvantage for their adversary. Those who have small children to care for may have to either defer, and if they don’t may face serious distraction during the trial. There are a myriad of privacy issues to consider. What if this is a highly sensitive trial and there is a juror with a large family in close living quarters? Will they defer or be struck? If so, this is selection bias. A related issue may involve voir dire. If a virtual juror is being questioned about personal issues, it may inhibit them from answering truthfully if family is nearby and they do not want them to know. Another issue with a virtual trial is similar to that of trying a live case with a mask. At a virtual trial it can be more difficult to assess body language, demeanor and social cues of lawyers and witnesses. During deliberations jurors may also be biased against each other based on their perceived socioeconomic status which may be easier to ascertain when jurors are deliberating from their home rather than a neutral in-person deliberation room. Perhaps the most serious concerns involving the virtual trial involve criminal trials and whether a virtual trial violates the Sixth Amendment of the Constitution.
Conclusion
As promised, I’ve brought you more questions than answers, but as lawyers, I think it is important and essential to raise these questions. Socrates would have wanted it that way, even if he had no idea how to Zoom.