OPEN LETTER TO MASSACHUSETTS JURY MANAGEMENT ADVISORY COMMITTEE: ONLINE TRIALS ARE THE OBVIOUS CHOICE

August 14, 2020
VIA ELECTRONIC MAIL
([email protected])

Christine P. Burak, Esq.
Legal Counsel to Chief Justice
Supreme Judicial Court
1 Pemberton Square
Boston, MA 02108

Re: Comment on Recommendations of the Jury Management Advisory Committee (JMAC) Regarding Resumption of Jury Trials

Dear Ms. Burak, 

Taking advantage of the Court’s invitation, I am writing to comment on the JMAC report and recommendations concerning resumption of jury trials in the Commonwealth. The purpose of my letter is to encourage the Court to take advantage of the remote trial option. It is safer, more cost-effective, and efficient, than conducting in person jury trials in the middle of a pandemic. Adopting the novel instrument of remote trials is a fitting continuation of the Commonwealth’s laudable tradition as a trailblazer in matters of national concern.

This letter addresses some concerns with respect to remote jury trials and offers some practical steps to alleviate them. I hope the Commission and the Court will find these helpful in formulating a plan for resuming jury trials in the Commonwealth.

I have been in practice for almost 20 years. My experience with remote proceedings includes serving as an arbitrator in over 80 matters conducted via video and telephone conferences. In addition, I have a keen interest in judicial technology and have served as an organizer of a local chapter of a legal technology think-tank. I have also recently published an article on the subject. A copy is attached for your information. I have also studied the plethora of resources addressing the remote proceedings, including the Remote Courts Worldwide initiative and others.  

The JMAC is to be commended for reviewing a wealth of materials, obtaining input from many stakeholders, and producing a comprehensive report in a very short period of time. 

Based on its findings, the JMAC advises that jury trials should resume in person, albeit in a very different format. The potential participants are to be screened, their entrance and seating positions to be choreographed, masks are to be worn as much as possible, except by witnesses during testimony. Plexiglas barriers are to be erected. Courthouses are to be evaluated to ensure their HVAC systems are sufficiently powerful and safe to recirculate air. At the same time, additional exceptions from service are to be added (e.g., for those at risk and essential workers). The number of jurors would be reduced to six whenever possible. A trial would require two courtrooms to reduce the risk of COVID transmission.

The Report explains that the approach is not to ensure there is a zero risk of infection, but a reasonably acceptable level of risk. While this premise is accepted for the purposes of this analysis, it is at least debatable. The potential jurors and parties may have a right to expect a higher level of safety when it comes to jury service. It is not unreasonable for a juror to expect a zero risk of contracting a deadly virus while in service.

However, if our goal is an “acceptable” level of safety, then the same is true of the judicial process and its outcomes. In other words, our goal is not a flawless jury trial, but one that complies with “due” process and leads to a reasonably acceptable outcome (I use the term loosely as an equivalent to “substantive due process”).

1. HOW LARGE IS THE PROBLEM?

In general, according to the statistics from the Federal courts, about 2% or less of 
all cases proceed to a jury trial. The number has been dwindling over the last several years. The Appendices to the Report, show that as few as several hundred and as many as several thousand cases are awaiting scheduling for a jury trial. We can expect that many of those will settle before jury empanelment; some will settle before a verdict is reached. In other words, jury trials are an important, but exceedingly small part of the overall caseload of our trial courts.

2. THE REPORTED OUTCOMES OF REMOTE PROCEEDINGS ARE EQUAL TO THEIR IN-PERSON COUNTERPART

The JMAC report posits that jury trials are the foundation of our judicial system. The main reason for conducting such trials is to promote the public trust and confidence in the judiciary, including via personal participation. How do remote trials fit into this equation?

As pointed out in many sources cited in the attached article, there is no evidence that the parties have less confidence in a decision reached via videoconference. To the contrary, the rapid report from England tells us that the parties are at least as satisfied with the decision as they would be with one reached after an in-person proceeding. The parties felt heard, that their evidence was duly considered, and the decisions were well articulated. This is understandable since a remote hearing includes all of the elements of its in-person counterpart. 

Many reported a higher level of satisfaction with remote proceedings because it involved no travel, no need for accommodations, less waiting time, and other efficiencies. 

Speaking anecdotally, from personal experiences over the last three months and from canvassing a number of colleagues, none has reported that appearing remotely was so different than being there in person, as to render the decision flawed in some form. 

The complaints mostly have to do with some technical difficulties resulting from unfamiliarity with the equipment or the software. For instance, during one of my hearings, one of the attorneys had difficulty turning on his microphone. This issue, however, was resolved in five minutes and the hearing proceeded in the regular course. 

In other words, there is no evidence that the public is less confident or trusting of a decision made as a result of an online proceeding. We may also assume that the level of trust and confidence will increase when measured against the alternative. That is, subjecting the jurors, parties, witnesses, attorney, and court personnel to the risk of potentially fatal infection and having to deal with the inevitable delays and inefficiencies of the in-person protocol suggested by the Report. 

One may argue that this may be true for motion hearings and even bench trials, but jury trials are so different that they should be afforded special treatment. In other words, they suggest a remote jury trial is akin to a marriage proposal made over telephone. It conveys the same information but is somehow less satisfying. This is an assumption that is appealing, but untested. Many things assumed by astute practitioners to be self-evident are actually inaccurate if one were to look at the scientific data. These are described below. 

3. WHAT ABOUT PROCEDURAL DUE PROCESS? 

The Report indicates that the DA’s office and the CPCS raised some unidentified 
constitutional concerns. These concerns, can and should be properly analyzed in the context of precedent and the deadly pandemic.  

Let us use the Confrontation Clause as an example. As a cornerstone of criminal process, it is assumed that the accused has an unfettered right to “confront” the accuser “face to face,” which includes facing the plaintiff/ victim and witnesses. However, a 2014 article from Cornell Law Review discusses the Confrontation Clause in the context of remote trials. See Kostelak, Russell, Videoconference Technology and the Confrontation Clause, Cornell Law School J.D. Student Research Papers, Paper 33 (2104), available at 
http://scholarship.law.cornell.edu/lps_papers/33. Without belaboring the points discussed in the article, a. the Supreme Court has already ruled that remote appearances pass the constitutional muster of the Confrontation Clause and b. a two-way videoconference has been held in some circumstances to constitute a “face to face” confrontation for these purposes. While the case may not be open and shut (see e.g., United States v. Cotto-Flores, No. 18-2013, at *57 (1st Cir. Aug. 10, 2020)), at least the in-person rule is not absolute. Exigent circumstances, such as a global pandemic constitute valid grounds to accept remote testimony. 

Another area of frequent concern centers on jury tampering of various kinds. What if there is someone else in the room? What if a juror looks something up on Google in real time and thus considers information outside of the case? What if she records the proceedings? These concerns are commonsensical, but purely speculative at this juncture. There is no evidence that such transgressions are any more pervasive in remote proceedings than in their in-person counterparts. There is no guaranty that jurors do not conduct own research outside of the courthouse. Further, some proposals suggest allowing jurors to keep their cell phones. Thus, their ability to Google case information, record audio or video, is unaffected, regardless of their location. 

Over the last several months hundreds, if not thousands, of matters have been heard remotely in the Commonwealth and in other states. Moreover, some states (for instance, Texas) made entire proceedings open to the public via livestreaming on YouTube. There is no evidence of significant violations of the rules against recording, or that such breaches have been disrupting the administration of justice.

Finally, there are concerns that remote trials are less effective for credibility determinations. As pointed out in the attached article, the so-called “demeanor” evidence is considered to be unreliable to the point of speculative. Many jurisdictions expressly caution not to take such evidence into consideration and focus on the substantive testimony instead. Even if we were to accept these concerns as potentially valid, there is simply no evidence (at least not yet) that seeing someone lie in real time on TV is inferior to witnessing lie in person. The attorneys also raise concern that they would have trouble observing jurors via video conference. Again, such concerns are not supported by data. Also, the recommended in-person trials will require jurors and most participants to wear masks at all times. Is seeing a person in a mask more effective than observing him or her close on television without a mask?  

More importantly, we must measure these concerns against the real-life alternative, that is, a jury trial that is largely unrecognizable due to the pandemic.

4. THE ALTERNATIVE IN-PERSON JURY TRIAL; PANDEMIC, COSTS, AND OTHER CONSIDERATIONS

The recommended logistics of an in-person jury trials appear quite onerous; what 
with the temperature checks, social distancing, mask wearing, extensive COVID-related questions, excuses for additional categories of at-risk jurors, Plexiglas-encapsulated witness boxes, and the like. The mental effect of all these precautions on the jurors’ ability to focus on the case at hand is difficult to calculate, but is probably non-negligible. These are augmented by the reduced jury pools and potentially reduced juries. 

The prison administration reports that criminal defendants who are currently in detention prefer virtual appearances because of the risk of infection and the attendant inconveniences of being re-assigned to different rooms after the hearing.

In addition to these very practical considerations, does a trial conducted by jurors in these conditions pass the muster of constitutional due process? 

We should measure the costs and benefits of a remote jury trial against its real life counterpart, which is radically different from a regular jury trial during the pre-pandemic times of hand-shaking and water fountains. 

Administration of a pandemic jury trial requires a significant expenditure of the courts’ resources, which are already strained. There are additional cleaning and disinfecting costs from sanitizing the Plexiglas witness box after every witness, to the jury box, to the additional cleanup of the restrooms, which are a known significant contributor. There are costs of ensuring the HVAC systems are compliant with the heightened sanitary standards. The functionality of these systems in many courthouses was a separate discussion topic even before the pandemic. The costs and resources to be expended on all these measures are substantial. There are also costs of contact tracing in case of infection.

In addition, there is the non-zero probability of an eventual infection. A court in Georgia had to quarantine 100 people when someone tested positive for COVID during a trial. If a juror contracts the disease during the in-person trial, one may foresee a claim against the Commonwealth. Even if such a claim is not successful, the damage to the public trust and confidence in the judiciary is self-evident. 

Against these disadvantages, we have the additional benefits of remote trials in the form of reducing the transportation, lodging, waiting, and other inefficiencies. 

As the report rightfully notes, there is already an established practice for using audio-visual depositions or even expert testimony from unavailable witnesses. A remote trial is but one step away. 

Measured in this fashion, there are significant benefits to considering remote trial as a viable alternative to the pandemic in-person jury trials. 

5. PRACTICAL RECOMMENDATIONS

A number of practical steps that can be taken to explore the possibility of implementing a remote trial system within the Commonwealth. I suggest conducting controlled experiments with measured outcomes that will inform our actions. While these merit a more substantive discussion, here are some examples: 

A. Conduct a voluntary remote trial pilot project for civil matters in District Courts with an amount in controversy not to exceed a certain threshold, with trials not to exceed three days, and with certain other identifiable characteristics (number of witnesses, for instance). This pilot project can last for one to two months.

B. Establish a similar pilot project for criminal matters with less serious charges, e.g., those that result in minimal incarceration, if any, a limited number of witnesses, and so on. 

C. Establish a work group (perhaps within the Commission) charged exclusively with monitoring the pilot projects and producing a data-driven report for consideration of the Court. The work group can take advantage of a wealth of information available from other jurisdictions, who have conducted similar projects. 

D. Establish a work group in coordination with the Court’s IT department, to evaluate the Trial Court’s needs to implement the pilot projects, the available tools, and the eventual adoption costs. This will also help answering the questions about whether there are large swaths of the population excluded from participating due to the lack of access to the Internet and other technology. Also, we will have an answer to the questions about the public’s right to observe. 

E. Establish a project management task force to identify specifically the number, location, and other characteristics of matters that need to be scheduled for trial on or before July 31, 2021. The starting point is the appendices to the Report, which contain some information about the numbers from 2018-2020.

F. Establish a work group to address, possibly in coordination with the DA Office, the CPCS, and the local Bar association, the potential constitutional concerns in the context of online trials. These can be done within one month from formation of the group.

5. CONCLUSION

Again, I would like to thank the Court and the Commission for its tremendous 
effort. The judicial systems nationwide and globally are struggling to serve the needs of the public in the efficient and trustworthy administration of justice. Restarting in-person trials is a commendable goal. Unfortunately, the pandemic situation makes this goal far from readily attainable. Remote trials are a relatively easy, cheap, and equally effective alternative that should be seriously explored. 

I appreciate your consideration and am available for further discussion or participation. As this is an area of my great interest and some expertise, perhaps my contribution will be helpful in the process. 

 Enclosure