Shari E. Belitz, Esq.
Claire E. Parsons, Esq.
Seth J. Zuckerman, Esq.
Although logistical issues dominate discussions in the legal arena with respect to virtual trials and in-person COVID trials, it will be the substantive issues appellate courts will be reviewing in the years following the COVID pandemic. We have identified the top five.
Voir Dire Concealment
“A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct.” People v. Hitchings, 6 Cal.4th 97, 111 (1993); People v. Nesler, 16 Cal.4th561 (1997).
One of the first appealable issues emanating from a virtual jury trial is likely to stem from voir dire (the jury selection process). In a traditional trial conducted prior to the pandemic one of the biggest obstacles for attorneys conducting voir dire is a psychological concept called the social desirability bias. The social desirability bias posits that prospective jurors, especially when questioned in the presence of others will tend to overreport “good behaviors” and underreport “bad” or undesirable behavior. Because this can prevent jurors from honestly answering questions posed during voir dire, attorneys should strategically frame questions to avoid triggering a prospective juror’s social desirability bias and elicit truthful answers.
In a virtual jury trial, this problem could be compounded and transform into the appealable issue—concealment. For trials conducted virtually, prospective jurors may be questioned in their homes, where they may have reason to conceal the truth in voir dire. In this instance, it is not merely social desirability which will hinder the process, but rather privacy concerns about revealing personal information when household members may be within earshot. Ideally, the prospective jurors will have a private room in their home to respond to voir dire questions, listen to trial testimony and deliberate. However, this is not always the case. Especially in urban areas, living quarters for some may be tight with many household members. Some jurors may even have household members who refuse to give them privacy during trial proceedings. Depending upon the facts of the trial, any number of issues may be raised in voir dire which the juror may not feel comfortable answering truthfully in their own home.
If a juror receives evidence from an outside source, a verdict may be set aside if there is a “substantial likelihood” of juror bias. Nesler, 16 Cal. 4th at 578. Bias is established if (1) the extraneous material, judged objectively, “is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror” or (2) from the nature of the misconduct and surrounding circumstances, it is substantially likely a juror was “actually biased” against a party. Id.
As discussed above, privacy or lack thereof is one of the biggest potential problems when conducting a virtual trial. Even in a traditional in-person trial, it is always possible that a juror may receive evidence from an outside source. There have been cases where jurors have conducted their own investigations (Reynolds v. City of Birmingham, 723 So.2d 822 (Ala. Crim. App. 1998) (juror traveled to the crime scene, and observations bolstered the juror’s assessment of the credibility of police testimony regarding what they saw); read articles about the case while it was in progress (United States v. Concepcion Cueto, 515 F.2d 160 (1st Cir. 1975) (that some jurors had read a news article alleging that the defendant was considered by federal authorities to be “one of the most important and dangerous drug traffickers” warranted a new trial); discussed the case with outside parties in disregard of their oath (People v. Neulander, 34 N.Y.3d 110 (2019)(juror sent and received hundreds of text messages about the case and then lied under oath about her conduct); and of course conducted their own searches on the internet and social media (Russo v. Takata Corp., 2009 SD 83, 774 N.W.2d 441) (juror conducted two separate online searches of defendant and informed other jurors of his search; the jury’s verdict was later overturned). Online research is a particular concern in the context of a virtual trial as it can be done in real time, with greater frequency and depth from the privacy of one’s own home, than in a contained court setting. Further, virtual trials can be recorded more easily, either intentionally by the juror or a family member, or inadvertently through a virtual assistant such as “Alexa,” or on social media, or a smart phone of another in the household.
In fact, during the COVID-19 pandemic, a court in Collin County, Texas attempted to hold a civil jury trial over Zoom. During the jury selection process a juror walked off to take a phone call that could be heard by other potential jurors and the parties. Needless to say, that juror was excused. But this highlights the distractibility and possible outside influence of jurors during a virtual trial. How can a court even ensure a juror is paying attention to the trial, let alone not influenced by outside sources?
Video and the Sixth Amendment Confrontation Clause
Perhaps one of the most complicated and discussed issues regarding the virtual trial with criminal defense attorneys is whether it violates the Confrontation Clause of the Sixth Amendment of the Constitution which ensures "[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." The purpose of the Confrontation Clause is to allow the trier of fact, most of the time a jury, to determine whether each witness is telling the truth and confirm the reliability of the evidence.
The U.S. Supreme Court, in Maryland v. Craig, 497 U.S. 836 (1990), identified four primary guarantees embodied in the Confrontation Clause: (1) the right of “personal examination;” (2) that a witness will testify under oath; (3) that a witness will submit to cross-examination; and (4) that the jury may observe the demeanor of the witness in making his or her statement. While the Supreme Court did not note that a face-to-face encounter with the witness was required and that two-way live video may be acceptable under certain circumstances, it did note that these guarantees must be present to permit such evidence.
The late-Antonin Scalia famously wrote in dissent in Craig “This [procedure] gives the defendant virtually everything the Confrontation Clause guarantees everything, that is, except confrontation. I am persuaded, therefore, that the Maryland procedure is virtually constitutional….it is not, however, actually constitutional. Id. at 870.
In a recent case, State v. Thomas, 376 P.3d 184 (N.M. 2016), the New Mexico Supreme Court held that the two-way video testimony of a forensic analyst violated the defendant’s Sixth Amendment right to confrontation. Id. at 187. The court’s discussion of the Confrontation Clause illustrates how current U.S. Supreme Court precedent leaves courts struggling to apply established tests to two-way video testimony.
In a virtual trial, a criminal defendant cannot directly confront their accuser and witnesses, and the jury does not have the benefit of observing the entirety of the witness’ demeanor, thus likely raising an appealable issue.
In-Person COVID Trials
The Protective Facial Mask
As courts begin to open around the country, many are wondering about how to resume in-person jury trials. Although the threat of COVID-19 varies across the country, the fact remains that there is no treatment, cure, or vaccine to date. Accordingly, when in-person trials resume, personal protective equipment, including a face mask, is one of the prophylactic measures most likely to be implemented. Typically, face masks cover the area of the face from the top of the nose to the chin, completely obscuring the mouth and cheeks of the wearer. The judge, stenographer, attorneys, witnesses, and litigants will likely all be required to wear protective masks. This presents logistical issues, including whether the speech of a masked attorney, judge, or witness is muffled or inaudible, as well as legal issues, such as masks impeding assessment of a party’s or witness’s demeanor.
According to most standard jury instructions on credibility, a witness’s appearance while testifying is a component of demeanor and should be considered. See People v. Sammons, 478 N.W.2d 901 (Mich. App. 1991) (the defendant is deprived a face-to-face confrontation with a witness who testifies in court wearing a ski mask). Barriers to this assessment, in the form of marks or other facial coverings, can make a juries' job very difficult.
In a recent high-profile criminal case in New York, the government’s cooperating witness refused to remove her sunglasses while testifying. These sunglasses obscured the juries' ability to see her eyes while tasked with the responsibility of evaluating her credibility. After numerous complaints by defense counsel invoking the Confrontation Clause, the judge ordered the witness to remove her sunglasses while testifying. A protective facial mask worn to prevent the spread of disease and which, as a result, may not be easily removed, is no doubt more obstructive of a witness’ face than sunglasses.
Selection Bias: Minority and Older Jurors
Logistic issues aside, “selection bias” is another major concern with a traditional in-person jury trial conducted during the COVID-19 health pandemic. Selection bias occurs when the seated jury, is not representative of what the jury pool would be pre-COVID. An in-person jury pool will likely skew younger and healthier as those with medical conditions may choose to defer jury service. The jury may have a dearth of essential workers such as those in the health care profession or those who are precariously employed.
Most significantly, the COVID-19 pandemic may disproportionately affect minority communities, which may result in a disparate impact and proportionately fewer minorities in the jury pool. Taylor v. Louisiana, 419 U.S. 522 (1975) (“the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”); Strauder v. West Virginia, 100 U.S. 303 (1879) (6th and 14th Amendments prohibit categorical exclusion of jurors by race). Moreover, even if a jury pool starts off with a representative population, it could easily become skewed during the selection process. In a pandemic, it is likely that more jurors may cite legitimate reasons to be excused from the jury, including childcare, business reasons, or even the health of family members who may be immuno-suppressed. The interplay of these legal and logistical issues may thus combine to create significant appellate issues for in-person jury trials conducted in the midst of a pandemic.