A trial team and I were asked recently whether we would prefer to postpone an in-person jury trial several months or conduct the trial now via Zoom. We responded with a resounding, “in person.”
Not a single one of us is immune to the coronavirus COVID-19 pandemic. We’ve all suffered loss. Some much more tragic and permanent than others, but no one can honestly say that her or his life is unchanged. Some things that seemed normal earlier this year and before then may never go back to the way they were. Will we fly cross-country to conduct a four-hour deposition in person, even when it is safe to do so? Maybe; depends on the witness. Will we for an in-person meeting with colleagues? Maybe not.
While attorneys are proving every day that many parts of our profession can be performed remotely, we must closely guard the sanctity of jury trials from the coronavirus pandemic. Criminal and civil jury trials are the backbone of the American system of justice; our ultimate safeguard of civil liberties. The American jury trial is a constitutional right. I’m all for adapting to the present situation. But the thought of a “virtual” trial by jury is a bridge too far—and presents a serious risk of eroding one of the most fundamental American rights.
U.S. District Judge William G. Young commented in a speech titled “Vanishing Jury” that jury trials are disappearing through the gradual deterioration of procedures and culture toward the role of trials. He observed that for civil cases the federal judiciary abandoned the traditional twelve-person jury in favor of six-person juries. In adopting this measure, he notes, the federal judiciary “faded from dynamism into stasis in [its] willingness to accept a diminished, less representative, and thus sharply less effective civil jury.” Commenting on a proposal to share courtrooms, he notes that because “we no longer seem very interested in using our courtrooms, we are losing them.”
Juries compel common sense into a process that is otherwise increasingly filled with legalese and jargon. Juries force us to speak plainly. They smell elitism and phonies from the jury box like expired milk. In doing so, they find the truth. But how is their sense of smell through a video monitor? I fear “virtual” jury trials would have a chilling effect on this fundamental American right—even more so than smaller jury panels and shared courtrooms. Civil litigants may decide to resolve a case for a dollar amount that does not adequately reflect the likelihood of success, and instead accounts for distrust of facing a “Zoom” trial rather than a jury.
So, what’s the solution in the short term until courthouses fully reopen? I don’t have all the answers. Protecting judges, jurors, court personnel, and witnesses is paramount. U.S. District Judge Karen K. Caldwell presided over an eight-week, in-person drug trafficking trial in April. She compared the experience to “building an airplane while you’re flying it.” Despite many challenges, she successfully oversaw voir dire and trial, after which the jurors deliberated through verdict. U.S. District Judge James C. Dever III successfully conducted two separate jury trials in May.
The protocols utilized reportedly included courtroom reconfiguration and revamped jury deliberation spaces to permit social distancing, use of transparent face shields and masks, plexiglass to create barriers around jurors and witnesses, culling out prospective jurors who reported health issues, reliance on technology to present evidence (on which many of us already rely), and frequent decontamination of all courtroom surfaces.
While not perfect, it sounds a lot better than sitting alone in my apartment while talking into a computer for eight weeks, hoping the jury can properly see and hear me. Let’s not diminish jury trials by conducting them “virtually.” As Judge Young said: “The most stunning and successful experiment in direct popular sovereignty in all history is the American jury. Properly constrained by its duty to follow the law, the requirement of jury unanimity, and evidentiary rules, the American jury has served the republic well for over two hundred years. It is the New England town meeting writ large. It is as American as rock ‘n’ roll.”
Hard to argue with that. In the words of Pete Townshend, “Long live rock.”