By Matt Reynolds
In April, a Florida court held a bench trial over Zoom to decide a child abduction case under the Hague Convention. Later that month, the same state held a major virtual trial on the voting rights of convicted felons, with the public listening in by phone.
As criminal courts grapple with the COVID-19 pandemic, some in the legal industry wonder whether a virtual jury trial could be next.
Just weeks ago, the idea might have seemed inconceivable. Now, as remote meetings using videoconferencing tools such as Zoom become a regular fixture in courts, some are concerned that virtual trials would deprive defendants of the constitutional right to confront witnesses, an impartial jury, due process of law and effective counsel.
Douglas Keith of the Brennan Center for Justice at New York University School of Law is among them. He says courts will have to reconcile remote proceedings with the demands of the Constitution.
“There are all sorts of other questions of fairness that courts are going to have to confront,” Keith says.
According to the National Center for State Courts, 16 states and the territory of Puerto Rico have ordered virtual hearings in response to the novel coronavirus; however, none of the legal experts interviewed for this story was aware of any remote or virtual jury trials. In Texas, the public has access to hundreds of proceedings on YouTube, where prosecutors, judges, defendants and public defenders convene on Zoom. In Cook County, Illinois, the public can watch bond hearings online.
With courts suspending trials because of the virus, some legal experts say a virtual criminal jury trial is a near certainty. Others, including Judge Scott Schlegel of the 24th Judicial District Court in Jefferson Parish, Louisiana are more skeptical.
“I don’t see it happening, frankly, for all the reasons you can imagine,” Schlegel says.
THE LEGAL HURDLES
The technological and constitutional hurdles of a virtual trial go hand in hand, and long before the pandemic, courts have wrestled with how to conduct virtual hearings using video technology.
One issue is making sure defendants and witnesses have access to high-speed internet so they can appear in the first place. According to the Federal Communications Commission, by the end of 2017, 21.3 million Americans lacked access to high-speed internet.
There is also the question of how defendants can safely access public spaces with broadband during the pandemic. That digital divide could have real-time effects in the courtroom, Keith says.
“Those with lower-quality internet are going to be the ones who are more likely to have interruptions in their audio or in their video feed, which, of course, could impact how they’re viewed by the judge or the jury,” Keith says.
Defendants have been shown to fare more poorly in remote proceedings. A 2010 study found that judges in Cook County set bail higher for defendants using closed-circuit television than those who appeared in person.
After Locke Bowman, executive director of the MacArthur Justice Center in Chicago, filed a 2006 lawsuit over the closed-circuit bond hearings, the county responded by going back to in-person proceedings only.
Bowman says trials by video would likely compromise rights of defendants under the Sixth Amendment’s Confrontation Clause, which allows them to confront witnesses.
“A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand. When you take that away, you’ve lost something precious,” Bowman says.
People might bristle at the thought of sitting shoulder to shoulder in a jury box during the outbreak. Courts are looking toward Zoom and other video platforms as they seek to protect the public’s health despite privacy and security issues. Bowman says the technology raises “real questions about the integrity of the process,” and whether jurors could be “susceptible to outside influence when the jury isn’t even in the same location as the judge.”
Schlegel says a jury’s ability to deliberate could also be impacted, and courts would need to ensure jurors were not doing independent research on cellphones or computers.
“I don’t know that you could have the necessary precautions in place when all 12 are at their home, talking to each other on a screen,” Schlegel says.
Then there are the procedures defendants take for granted, such as conferring quietly with their lawyers during their trials. That’s one of the reasons Abner Burnett, director of Texas Rio Grande Legal Aid Public Defenders, is opposed to virtual jury trials.
“If you set up a situation where the client’s access to his or her attorney is through video, then a lot of the assurance that comes from being in close proximity with a lawyer—and the ability to think and act on the spot—is decreased,” Burnett says.
Judge Christopher Whitten is a state court judge in Maricopa County, Arizona. He agrees that a whole host of security and technical issues accompany a jury trial by videoconference, but he also believes the obstacles are not too great to overcome.
“If somebody who is in jail doesn’t have access to videoconferencing equipment and they can’t participate, then they have no [due] process,” Whitten says, adding that if defendants have access to the technology, “I think there are a lot of things that trial judges can do to make sure that they have a fair hearing.”
One solution for allowing defendants to communicate “privately and simultaneously” with their lawyers, he says, could include a second phone line or a private chat or note-taking function.
COURT WATCHERS ON ZOOM
Prior to the pandemic, if you walked into any criminal trial court in the country, you might see victims’ family members or defendants’ close relatives in the gallery. How might courts ensure public access to virtual court proceedings?
That’s the question on Simone Levine’s mind. The executive director of Court Watch NOLA she says she had to fight for a month to get access to Zoom proceedings for bail hearings in New Orleans.
Problems with access persist. Sometimes a judge will start a proceeding ahead of the scheduled time, so court watchers will enter halfway through. Levine says the group has only been granted access to bail hearings, not other criminal matters.
New Orleans has one of the highest rate of wrongful convictions in the nation. Levine believes virtual trials could widen fissures in the justice system.
“What we worry about when it comes to proceedings is, are all of the witnesses going to be available? Is there going to be full due process of the law? Certainly, transparency and accessibility is a big concern, too,” Levine says.
LIGHTS, CAMERA, ACTION
Video can be distancing and distorting. As courts come to grips with virtual hearings, they will need to consider how framing, lighting, camera angle and location might make jurors question the credibility of a witness or create bias. A jury could view defendants differently if they are seated in jail, wearing an orange jumpsuit and 10 feet away from a camera, or if they are framed from a low angle or have shadows on their faces.
Conversely, a defendant represented by a high-powered law firm might have the financial means to appear in slickly produced video court proceedings and testify in lavish surroundings.
In court, a jury views a witness or defendant in the context of the entire courtroom. Fraser Wyatt of For the Record, a company specializing in courtroom technology, says his company has been wrestling with how to replicate the courtroom experience.
He notes that there a small steps that courts can take to make sure everyone is in the proper attire and court seals are used in backdrops. The National Center for State Courts, in collaboration with two other organizations, has also issued guidelines on how courts should handle virtual hearings.
“When you go into a court, there is that feeling of a very serious space—going through security, the marble floors, the echoing as you’re walking. That is an experience that reinforces to people that this is a serious place where serious things happen,” Wyatt says. “In the virtual space, how do you reinforce that someone’s liberty is at stake?”
For some, there is nothing like the experience of being in court. Burnett says a jury in a courtroom can build a whole picture and narrative in their minds just by watching how attorneys and their clients interact.
“I’ve done enough of these Zoom videoconferences in the last month to say that the options for what you perceive on the screen are limited,” Burnett says.
The tactile nature of proceedings is also an important element of criminal trials, says Schlegel.
“It’s different when you have a prosecutor or a defense attorney standing up, handing a picture of a crime scene … and then handing it to the jury and having them physically touch a firearm, or physically touch the knife or consider those gruesome photos in real life,” the judge says.
Burnett says there is a “strong push” in Texas to begin trials by videoconference, and he fears they will become permanent. He says he doesn’t have a single client in jail “that doesn’t want out” or isn’t worried about being exposed to COVID-19.
“I will be obligated to explain in detail the obstacles, the almost insurmountable disadvantages of trial by video,“ Burnett says, adding, “I don’t think there’s a one of them that’s going to want to do it.”