Once most courts closed for in-person business in March 2020, I started wondering whether online trials present a viable and possibly vital alternative. As most things have moved online, the courts finally followed. Texas moved most proceedings online with real-time YouTube streaming. So have most other courts, with varying degree of efficiency, but without much complaint from the public. The data shows the level of satisfaction and confidence in the judicial system has not changed.
Some forward-thinking courts conducted bench trials via videoconference. These were largely unremarkable, like most civil trials that have to do with prosaic matters of contract and intellectual property law. There were some glitches, as usual; except now instead of waiting for a witness or attorney, who is stuck in traffic, the participants have to be patient while someone figures out why the microphone isn’t working. It is the mute button, always.
Jury trials, and particularly those in criminal cases, however, have not resumed. The reasons for the reluctance to conduct these online are two-fold. First, the predominant sentiment in the legal community is that “you just don’t get your money’s worth by watching it on TV.” The other consideration has to do with controlling the jurors and witnesses. What if they’re checking their emails during the vital portion of the testimony? What if there’s someone else in the room, outside of the frame, secretly coaching the witness or distracting the juror from his duties? What if someone surreptitiously records the proceedings?
In my previous musings, the data did not support the hypothesis that online trials somehow produce inferior results. Given the lack of evidence on potential tampering, it is difficult to evaluate this concern. Still, the courts in a number of states were determined to reopen for business. They’ve issued guidelines for making courthouses COVID-proof in a matter similar to retail businesses. Plexiglas, masks, sanitizer, and social distancing, were all invoked to protect the participants from the dangers of the virus. The number of jurors in most cases has been pared down to six with courtrooms reconfigured for social distancing. In some courts, an additional courtroom is reserved as a break room for jurors, and another for the parties.
In Massachusetts, the task force on jury management recommended phased reopening to begin in October. The date has since been pushed to November, and now January 2021, due to the rising number of infections. The federal court reopened in September and was able to conduct several in-person trials in matters involving a single defendant.
These developments, however, now face a new and unsurprising challenge: the potential jurors refuse to show up. Those who received jury summons weigh the risks posed by sitting in an enclosed space with others, possibly for days. For the most part, they choose to sit it out.
The latest article from the Associated Press describes the prevailing mood. The response rate to jury summons, never particularly high, has dropped precipitously. For instance, for a jury trial in Hartford, Connecticut, the court sent out 150 summonses. Only one half of those, who responded, showed up. After the preliminary filtering process and excusing people for a variety of reasons, including COVID, only 19 were left, far short of the required 31 for a 12-person jury selection. Then, two court officers tested positive, the judge’s clerk had to go into quarantine, requiring postponement altogether. The court in Virginia reports that nine out of 10 potential jurors don’t show up.
Some courts are taking a harder stance. For instance, a prospective juror in California informed the court that he was uncomfortable attending for the fear of infection and placing at risk his father-in-law (a man in his mid-70s, who lives in his household). He was apparently told that this was not a valid excuse and ordered to show up. Other courts are contemplating stricter enforcement since shirking jury duty is a crime in many states. Would such a reluctant juror be truly impartial in a trial involving the government having to prove its case? Is herding jury dodgers during a pandemic a good use of the limited resources of the law enforcement and, ultimately, the courts?
Whatever the outcome, these limitations have to be taken into account. There can obviously be no jury trials without jurors. This should, of course, lead the courts towards the alternative, i.e., online jury trials. Our courts have been extremely responsive in their initial reaction. Trying a case before a jury via video is the next obvious step. Or not. Stay tuned.