It was a non-binding decision in a mundane civil case involving an insurance firm and a McKinney IT business. But the video-conference trial was a new experiment that could set the stage for a radical rewriting of how our justice system works in the age of pandemic.
Collin County Judge Emily Miskel said it is the first time in Texas — and possibly nationwide — that jurors were selected, heard evidence, deliberated and delivered a verdict all through a video call.
“I want to welcome you to the Collin County Courthouse. Even though you’re at home, I consider this the courthouse,” retired Judge Kevin Dean potential jurors at the beginning of jury selection. “I want you to think of this as your duty.”
They logged in on laptops and cellphones, from home offices, living room couches and even backyard patios to report for jury duty.
The one-day trial had its fair share of technical glitches.
The plaintiff’s lawyer called the massive screen of little boxes “The Brady Bunch on steroids.” Some jurors on mute didn’t respond when called on. One spent the first few minutes of the trial switching digital backgrounds from an underwater scene to a peaceful harbor before settling on a beige conference room for the remainder of his duty.
Monday’s trial was a step toward seeing if full jury trials are possible online, Miskel said. Lawyers, judges and other legal scholars around the country were watching along.
“In some parts of the country it may be a long time before you can start jury trials,” said Paula Hannaford-Agor, a court research consultant with the National Center for State Courts. She said she believes the Collin County trial was the nation’s first experiment with virtual jury trials.
Still, there are serious questions about whether video conferencing technology is appropriate in jury trials — either civil or criminal.
On the one hand, utilizing such technology during the pandemic could help ensure a defendant’s right to a speedy trial. On the other, the legal challenges of such technology can be overwhelming.
How do judges and attorneys ensure that jurors are paying attention during the trial? What if a connection glitch freezes the screen during particularly important testimony? Can a fair jury of peers be selected if the pool includes only people with broadband internet access?
How do attorneys replicate the courtroom experience of seeing — or even holding — a murder weapon? How will the powerful testimony of a rape victim translate on a screen?
“Video conferencing technology really can’t replace criminal jury trials,” said Anna Offit, a professor at SMU’s Dedman School of Law. “What we really need is a nuanced discussion.”
Small Steps Forward
Although jury trials have been put on hold, business continues at Texas courthouses. Many hearings and other legal proceedings have moved online to platforms like Zoom.A big unknown in the legal world is when or if jurors will be able to report for service. The very nature of jury selection — a large group of people confined in a small courtroom or jury box — runs counter to social distancing practices.
“That has been the norm for jury trials for centuries,” Hannaford-Agor said. “People are understandably and reasonably very cautious.”
So Miskel and other judges across the country are discussing what a return to the courtroom might look like.
“The goal is to get back with jury trials as soon as we can,” Judge Ray Wheless, a presiding judge with the Texas Office of Court Administration, said at a recent meeting of the Collin County Bar Association. “We can’t just be like businesses and say, ‘We’re going to open like no problem at all in the world.’ We have to protect people.”
Monday’s virtual trial was a summary jury proceeding, a part of Texas law that allows civil litigants to test their arguments in front of a real jury before the full case is tried.
It is part of dispute resolution, so it is heard before a retired judge who serves as a mediator after the one-day summary trial is completed.
Many Collin County judges require a summary trial when they expect a civil case to last a week or more, which Miskel said made it the perfect, low-impact testing ground for video conferencing technology.
“It was a relatively good way to test, how does it work to have jurors appear remotely without added harm or cost to the litigants?” Miskel said at the bar association meeting. “It would be exhaustively studied before we implement such a big change in criminal cases.”
Because trials everywhere have been suspended, there will be a backlog of cases when courts do settle into a new routine, Hannaford-Agor said. To keep that backlog from stretching out for years, she said, it’s important to start trying new things.
“We’re talking about 10,000 jury trials a month in the country that have been suspended,” she said.
Lawyers Say to Wait
Some legal experts argue that the right to a speedy trial means courts should continue working toward some kind of virtual justice system. But defense attorneys in particular have constitutional concerns about rushing into conducting jury trials by video conferencing in jury trials.Toby Shook, a Dallas defense attorney and former prosecutor, said he’d rather delay a trial if the alternative is an untested, potentially problematic trial via Zoom.
“I’d rather wait,” Shook said. “It’s just too dangerous when someone’s life is on the line.”
Shook said an important duty of jurors is to evaluate the credibility of witnesses. Legal scholars say that’s much more difficult to do when staring at a screen instead of seeing testimony in person.
Lynne Rambo is a professor of law at Texas A&M University’s School of Law in Fort Worth. She said that half of trial strategy is presenting the evidence that witnesses have, but the other half is assessing how jurors weigh the credibility of those witnesses.
“A huge part of litigation is observing the demeanor of the witnesses,” Rambo said. “You can’t get a fair perception of that over Zoom.”
Rambo also said the technical problems of distant trials could pose problems. Clients can’t have side conversations with their lawyers to point out discrepancies in testimony or consult them on other issues if everyone is on the same Zoom call, she said.
“It would just be a disaster in a criminal trial,” Shook said. “It just seems so intuitive to me. Advocacy can’t happen on a laptop.”
Besides the legal challenges, there are technological concerns about online jury trials. Access to reliable internet may limit the jury pool, making equitable jury selection more difficult. Also, some worry that jurors will struggle to give testimony their full attention while on a long Zoom call.
In Monday’s trial, one juror left the room during a break to place a personal phone call. When the jury returned, he was still absent.
In the courthouse, Dean said, a bailiff would be sent to retrieve the missing juror. On Zoom, the judge just had to shout.
“If you can hear us, please return to your chair, we’re ready to get started,” Miskel shouted through the screen Monday. “We have new challenges, but that’s OK.”
Offit said she was impressed by Dean’s instructions to jurors, including that they not look up outside information about the case or discuss details with family members. Keeping the jurors focused on the trial, she said, is always a challenge of litigation.
“I think that’s a challenge whether a juror is sitting in the courtroom or sitting at their desk,” Offit said. “I don’t think… being home will preclude jurors from taking their role seriously.”
‘A Really Good Thing’
Yet there are some upsides to bringing such technology in the courtroom, judges say.Despite questions about limited access to reliable internet connections, Miskel said the video technology has the potential to increase access to justice.
Lawyers who work in multiple counties could spend less time traveling and more time on Zoom. Someone could take a few hours to testify on their phone rather than take an entire day off of work to be at the courthouse.
Plus, Wheless said, the live-broadcasted trials can increase transparency in the courts. He pointed to a recent contempt hearing in Dallas County where a salon owner was jailed for failing to close her business.
“I’d bet more people watched that contempt hearing than have ever watched a contempt hearing in Texas,” Wheless said. “I think this is a really good thing for the justice system.”
Jurors in Monday’s proceedings seemed to like the virtual option too, Miskel said. They said that it was an efficient use of time — no waiting around for their number to be called — and that the digital screen allowed them see document evidence up close rather than on the other side of the courtroom.
Hannaford-Agor said judges and lawyers worked in advance to make sure the trial went smoothly. That kind of pre-trial work will be necessary, she said, to adapt trials to online platforms.
“That went smoother than we could have ever hoped for,” she said. “It clearly showed a lot of preparation.”
Despite the challenges, she said, video conferencing may be a better option for some situations once courts get approval to restart trials. Until there’s a vaccine for the virus, she said, social distancing will have to be in place, people will have to wear masks, and other problems will need to be solved for in-person trials.
For example, she said, evidence may need to be sanitized before it’s passed back and forth between lawyers. And evaluating witness credibility may be just as difficult when wearing a mask as it is online, she said.
“It’s not a choice between the way things used to be and Zoom,” Miskel said at the bar association meeting. “It’s a choice between Zoom and a drastically altered in-person experience.”
Offit suggested a nuanced approach. Perhaps some lessons from online experiments like Monday’s in Collin County can be applied broadly without shifting to an “all-or-nothing” system, she said.
“I do think this will serve as a point of departure for discussing the future of virtual proceedings,” she said. “Courts need to develop a plan to adapt trials to our current public health crisis.”
The debate in the courthouse is the same as those faced by other fields trying to determine how and when to recover from the pandemic, Rambo said. Technology may help in some ways, she said, while waiting for a perfect solution may hurt in others.
“It’s sort of just a microcosm of what we’re facing everywhere,” Rambo said. “How much waiting is too much waiting?”
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