By Dr. Ken Broda Bahm:
While it still might be a stretch, it is a lot more thinkable now than it was two weeks ago. The jurors sit down separately in front of their screens, log in, and watch while the attorneys and witnesses present the evidence, and the judge makes rulings and provides instructions. When it is time, the jurors deliberate as part of an online meeting, with their six to twelve faces on the screen. And everyone — attorneys, witnesses, judges, and jurors — is in a different physical space, but together in the virtual space of an online courtroom. This idea of an online jury trial could be taking some steps toward reality. The present lockdown of the nation’s court systems, along with the rest of the economy, might end up being a “crisis is opportunity” moment for distributed and virtually-present legal proceedings, including a jury trial conducted via remote technology. Generally reliable systems for conducting meetings using online conferencing have existed for years, but the courts have been generally slow to adopt the practice. Like a lot of things these days, that could change quickly.
Richard Gabriel, a noted consultant whose writings about his work in high-profile criminal trials I have reviewed in this blog, wrote a recent essay that aims to flesh out the concept. The piece in Law 360, entitled “What Online Jury Trials Could Look Like,” provides a list of fourteen practical considerations in implementing the idea. Noting the presence of a number of recent factors that increase the likelihood of movement toward online legal process, the article points to provisions in the new CARE Act allowing expanded use of remote proceedings, as well as a few situations from the chaotic days between the start of the outbreak and the closing of the court systems, like a Manhattan case where one quarantined juror was allowed to deliberate by FaceTime. To supplement Richard Gabriel’s discussion-starter, this post will share a few general principles that should help to guide this transition.
A Secure and Proprietary System
The Law 360 article advises that participants could use a “videoconferencing service like Zoom, Adobe Connect, Google Hangouts Meet, GoToMeeting or Webex Court,” but in my view, any court that seriously looked into making this move should develop a customized and proprietary system. With the dramatically increasing use of Zoom, we have already seen “Zoombombing” by uninvited guests, and courts would be a ripe target for that and other kinds of hacking.
But more importantly, there would likely be other features that courts would need but that would not be common features of other conferencing platforms. For example, judges would likely need to see an alert of some kind if a juror steps away from the camera at any time other than a break. In addition, it would be useful to have a separate channel where attorneys could make objections or hold bench conferences that the jurors would not be able to see. There should also be an interface for judges and attorneys that is much more robust in controls, and an interface for jurors that is more passive.
Another reason for a proprietary system is to create some separation between private companies and the court. If a case had some bearing on software owners or other individuals connected to the development companies, then we might see some of the same questions that apply to the developers of voting machines. There probably isn’t a perfect solution given that someone has to develop the platform. But this is a situation where the appearance of impropriety can be nearly as bad as the reality.
A Sensitive and Inclusive Selection Process
Jury selection, and the preparations for it, should involve some additional questions. The need is to confirm access to a computer (with camera and microphone) and the internet. Here, courts will face the same dilemma schools are now facing: You can’t make the class-based assumption that “everyone” has this access, but you don’t want to let a lack of access by a relatively small minority to limit the majority who do have that access. Richard Gabriel makes the good suggestion that pre-wired government offices could be provided for those who lack access, and others have suggested distributing common technology (like an iPad, with a cellular connection, if needed) to all just to standardize the technology. The latter idea could have additional advantages in locking the devices down so that jurors could only connect to the proceedings and wouldn’t be tempted to do some home shopping or social media sharing during the boring parts of trial.
In addition to addressing technology access, the pre-voir dire process would also need to including asking about whether the venire member has a room in their residence where they could be alone, free from all other responsibilities, and could commit to being on camera at all times other than breaks.
Private Deliberations
One issue I have not yet seen addressed is the privacy of the deliberations. In the physical world, you shut the door on the jury room, no one goes in or out, and they are on their own. It is a safe bet that it cannot happen exactly that way in a virtual online discussion space. For instance, someone would need to make sure that technical connectivity remains strong enough to support a discussion by everyone. If one juror says later, “My connection was slow, and I couldn’t tell what everyone was saying,” then you have a mistrial. In addition, someone would have to ensure that no hackers or other uninvited guests are showing up in the deliberation room. These technical security roles cannot be left to the jurors themselves, so there is probably a need for an “IT-Bailiff” whose only role is to monitor connectivity and security, call for a collective break in deliberations if anything is not working for anyone, but to otherwise not comment and not listen to the content of deliberations.
Even while there are some important obstacles that would need to be addressed, the idea of an online jury trial is not just feasible, but it would also have some advantages over open court. For example, imagine not having the white noise machine on while the bored jury searches for nonverbal clues on who is “winning” the bench conference. Imagine being able to control the information and visuals that jurors are attending to at all times during the trial. “In a strange way,” Richard Gabriel concludes, “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.”
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Other Posts on Courtroom Technology:
- Be Multi-Modal in Your Courtroom Visuals
- Adapt to Remote Communication (Including Testimony)
- Understand Your Jurors’ Online Reality