By Dr. Ken Broda Bahm:
A courtroom process is supposed to be formal and solemn. The habits of delivering justice in person, through decorum and civic ritual, are designed to evoke a deference to the rule of law. When conducted remotely using a platform like Zoom, however, it doesn’t always work out that way. A recent Law 360 article, “Virtual Voir Dire Devolved Into Circus, Texas Justices Hear,” shares what happened during remote jury selection in a recent trial in Houston. Based on the description at least, it does have a Barnum & Bailey vibe to it. According to an affidavit filed by attorneys in another case:
Prospective jurors for an asbestos trial were seen sleeping, driving cars, disappearing off camera, applying makeup, playing video games while wearing a gaming headset, preparing and eating meals, watching TV, playing with pets, lying in bed and on a couch, drinking alcohol and vaping during questioning.”
The attorney’s affidavit asking the court to not impose virtual voir dire on their trial, made the argument that a jury selection by Zoom is not serious or substantive and does not preserve the decorum that the court depends on. One attorney called it, “an insult to the entire civil justice system” adding that “It’s not the system we signed up for.” What is interesting is that the affidavit and the Law 360 article focus on the medium itself, and not on the specific process followed in that trial. Rather than there being behaviors and attitudes that are inherent to either a remote or an in person setting, it seems more likely that, based on novelty of appearing “in court” by Zoom, the communication expectations are simply not yet established. The message to the court ought to be, “So, establish them.” In this post, I’ll make three suggestions that court personnel should implement and parties facing Zoom jury selections should ask for.
Check-in Jurors in a Separate Location
It isn’t best practice to let members of the venire just click a link and appear in the courtroom. Instead, there should be some kind of way station in between the jurors’ homes and the courtroom: a virtual room where they check in, and are in turn checked out, by a clerk or “technical bailiff.” Those who have any of the distractions or issues described in the asbestos case shouldn’t be allowed in. And if any problems occur after they’re let in, they should be sent back to that separate location to sort it out.
Check Their Technology and Connection
During check-in at a separate location, the court personnel should make sure that the panel member has the technology and the connectivity they need. It is also a chance to run through a checklist to assess computer position; camera and microphone functions, knowledge of controls; appropriate location, backdrop and lighting; as well as sufficient internet speed.
Set Expectations for Attention and Decorum
The court personnel greeting potential jurors in the separate location also have a chance to set expectations on the conditions and behavior of the citizens’ participation. They should understand the need to stay on camera (when not on break), to not have others in the room, and to have nothing else competing for their attention (either on the computer or in the physical environment). In short, they should be told that they are in a courtroom and the expectations for how they conduct themselves are largely the same as they would be if they were present in person.
As new technology and new applications of technology emerge, it is likely that there will be a fiasco here or there from time to time. But it isn’t necessarily the technology or the new uses that are to blame. Rather, it is the preparation and the planning that ought to be addressed. Whether in person or online, avoiding the circus requires that participants have clear expectations and a process that preserves both the function and the decorum of the courtroom process.
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Other Posts on the Online Courtroom:
- The Post-Pandemic Courtroom: Reflect on When Remote Court Still Makes Sense
- Break the Backlog: The Durable Conclusions from the Online Courtroom Project
- Preserve Decorum (in All Courtroom Contexts)
Image credit: 123rf.com, edited by the author