Trial by Zoom Jury?

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

I was scheduled for jury duty just as the COVID-19 crisis came to a head in March and courts, along with everything else in the state, closed. With legal cases piling up and the coronavirus court lockdown still in place, the inevitable question arises: Will there be trials in California decided by juries watching on Zoom or other video conferencing applications?

Even thinking about the possibility exposes many problems and traps from procedural and fairness issues to constitutional questions. However, having no jury trials presents different problems for the justice system that also must be considered.

Already courts around the country are trying to deal with their responsibilities in an era of pandemic by relying on technology. The United States Supreme Court, itself, has conducted hearings by telephone. A Florida court held a virtual trial on the voting rights of convicted felons. Sixteen states have ordered virtual hearings and judges, defendants and attorneys meet on Zoom. 

So, what about jury trials? 

A major concern is that virtual trials will deprive defendants of constitutional rights, chief among them the Sixth Amendment’s right to confront witnesses. Also guaranteed by the Sixth Amendment, however, is the right to a speedy trial. Even before the pandemic, the trial process was slow. The court lockdown will add to the false promise of a speedy trial. 

In addition, the question of how defendants can confer with their attorneys in the midst of a trial would have to be dealt with, along with technical issues that could prejudice a jury like camera angles on the witnesses and defendants and the ability of jurors to see up close and handle evidence introduced into a trial. 

But the question of possible trial-by-zoom also must focus on the jurors. 

Does a fair representative cross section of potential jurors have the necessary equipment and technical knowledge to participate as a member of an online jury? 

Will juries be able to assess the demeanor of witnesses over the Internet? Will jurors fall into the trap of being influenced by someone perhaps listening to the proceedings with them? How will jurors deliberate—in chat rooms? 

We can even speculate on the mundane question: Will jurors serve their jury time in sweat suits? 

Most importantly, will jurors pay attention to what is going on in the virtual courtroom or will cell phones and other attractions divert their attention? 

The question of responsive jurors is not only an issue for potential online jurors as Deputy District Attorney Michele Hanisee explains in her column on this site today about AB 3070 in the California legislature. One thing the bill does is presume to be invalid any peremptory challenge that contests a prospective juror for appearing inattentive or asleep. AB 3070, if it becomes law, could bring consequences to any effort to create online juries. 

We are probably not yet ready to adopt a trial-by-zoom system but balanced against all the difficulties in doing so is the backlog of trial cases and uncertainty of when the courtrooms can be opened and accommodate jurors in the overcrowded jury rooms and cramped jury boxes. Desperate times often result in unusual measures. Some see the no bail situation imposed by the California Supreme Court because of the COVID-19 as an example.

If the pandemic persists with a second or third wave, the notion of trial-by-zoom, so inconceivable at the beginning of the year, will not seem so undoable by the end of the year. If the trial-by-zoom does come along, look for it to first be attempted in civil cases.

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