By Dessie Otachliska, J.D.
On August 11, 2020, Travis County, Texas made history by holding the nation’s first virtual criminal jury trial. While the case itself — a misdemeanor charge for speeding in a construction zone — was largely unremarkable, the way it was conducted was anything but. At 8:30 a.m. local time that Tuesday, Justice of the Peace Nicholas Chu convened the virtual courtroom using the Zoom videoconferencing platform, while simultaneously broadcasting the trial live to the public via YouTube. Judge Chu asked jurors to give their full attention to the trial at all times and to avoid succumbing to distractions such as email, TV, or social media. In a regular trial, this would have been a given—with all jurors seated together in the courtroom and required to surrender their cell phones, it would have been easy to notice whether a jury member had gotten distracted or was looking at outside materials related to the case. But in the era of teleconferencing, ensuring compliance is not so simple.
The Travis County Zoom proceeding highlights many of the challenges associated with virtual trials, even as these proceedings may be poised to become permanent features after the COVID era. For instance, only a few minutes into the trial, a juror lost his internet connection, and the trial was paused as he was replaced by an alternate. A little while later, Judge Chu again had to pause the proceedings to reprimand a different juror for looking at another screen. And, while the case ultimately proceeded without any significant technical glitches — following a 15-minute deliberation in a private breakout room, the jury returned a verdict of guilty, and the court imposed a fine of $50 plus court costs — Judge Chu’s case study of a Zoom jury trial left many questions unanswered.
The Sixth Amendment to the U.S. Constitution provides criminal defendants with certain guarantees, including the right to a “speedy and public trial, by an impartial jury,” the right to be “confronted with the witnesses against [them],” and the right to the effective assistance of counsel. Further, the Due Process Clause of the Fourteenth Amendment guarantees fundamental fairness in criminal prosecutions.
But how can these guarantees be realized in the midst of a global pandemic that has ground the country to a halt for over a year? For instance, how can criminal defendants be assured that their trials will be “speedy and public” or that they may be “confronted with the witnesses against [them]” when public health guidelines require that people stay home as much as possible, practice social distancing, and avoid crowded public places such as courthouses?
One seemingly obvious option is using videoconferencing platforms such as Zoom or WebEx, which have become ubiquitous in almost all other aspects of daily life during COVID. From teleworking to attending graduations, weddings, and birthdays, virtual gatherings have become the new normal. As the Travis County Zoom trial shows, conducting full jury trials is, if nothing else, technologically feasible. In fact, proponents argue that such a shift would not only be more efficient than traditional in-person hearings, but would also render proceedings more equitable by increasing access to justice, especially in rural areas.
Despite these potential advantages to virtual judicial proceedings, there are also obvious drawbacks. For one, the stakes are much higher in a criminal trial, where a defendant’s life and liberty are on the line. Technical glitches, poor internet connection, and run-of-the-mill distractions — familiar aspects of many videocalls — have different implications in a virtual criminal trial, regardless of whether they afflict a lawyer, the judge, jurors, or the defendant. Further, experience with online hearings has already revealed the significant challenges they pose to the overall integrity of the judicial system. For instance, in California, internet trolls hacked a virtual state court proceeding to blast music and dance on camera. Similarly, a juror walked off screen for over seven minutes to take a personal phone call during a Zoom trial in Texas. Finally, a Louisville judge repeatedly muted a defense attorney for over one quarter of a virtual hearing, which the judge had allowed the prosecutor to attend in-person.
More fundamentally, existing data suggest that virtual hearings are associated with systemically worse outcomes for defendants. For example, a 2014 study in Maryland concluded that physical presence “is the foundation upon which a defendant’s constitutional rights, ensuring a fair and just trial, are based.” Cases where the defendant attended bail review hearings via videoconference, on average, resulted in 51% higher bail amounts than similar hearings where the defendant attended in-person. Similarly, defendants that appeared over video were statistically more likely to be denied an opportunity to speak with their counsel.
The inability to communicate with counsel in real time is particularly problematic during a trial or a hearing because of the high stakes. Often times, if a defendant does not raise an objection or claim a privilege instantaneously, it becomes moot, thereby severely jeopardizing a defendant’s rights. Even if private means of communication, such as Zoom “breakout rooms,” are available, they generally do not allow for contemporaneous exchanges in the same way that leaning across the defendant’s table in a physical courtroom does. However, if a defendant communicates with their lawyer in a way not deemed “private” by the court (like Zoom private chat for instance), they risk waiving attorney-client privilege. As a result, the defendant often faces a difficult choice: a) wait to communicate with counsel privately and risk waiving important rights or b) communicate instantaneously and risk waiving others.
Part of the problem with the systemically worse outcomes for defendants in virtual hearings has to do with psychology. Research suggests that people often perceive testimony given in-person as more believable than that given virtually. There are a number of reasons for this discrepancy, not least of all the fact that a “technology-based mode of communication creates distance between the interactants, which deprives them of the ‘richness that is available face to face.’” Empirical data also indicate that videoconferencing not only impacts a viewer’s ability to assess non-verbal cues, but also cuts off certain voice frequencies used to transmit human emotions and therefore critically impacts a viewer’s ability to assess the credibility of a testifying witness.
But even if technological advances were able to ameliorate these credibility concerns, the broader Sixth Amendment issues surrounding a virtual proceeding’s potential to replicate trial by an “impartial jury” would remain unchanged. In Taylor v. Louisiana, the Supreme Court affirmed that the Sixth Amendment requires petit juries to be selected from a representative cross-section of the community. Put simply, a criminal defendant has a constitutional right to be judged by a jury of their peers.
A move to virtual jury trials, however, would threaten the right to an “impartial jury” in several distinct ways. First, virtual jury trials require access to a computer, tablet, or other device with a suitable video camera and reliable internet connection. In 2021, however, access to these prerequisites is not a given. In fact, according to a 2016 Census Bureau report — the most recent data available through the Census Bureau on the subject — only 76% of households nationwide have access to a desktop computer, laptop, or internet-capable device. Similarly, only 81% of households have access to an internet connection. In fact, 29% of American adults with annual household incomes below $30,000 do not own a smartphone, 44% lack access to broadband internet, and 46% lack a traditional computer.
What do these numbers mean in the context of virtual jury trials? They suggest that lower income Americans, as well as those in rural areas without reliable internet connections, would likely be systematically underrepresented in virtual jury pools due to the burdensome access-to-technology requirements. Even when they are able to videoconference into the trial, lower income jurors, who are substantially more likely to access the internet on their phones, would face further challenges. While it is possible to attend Zoom and other virtual meetings on a smartphone, such functionality is limited at best, thereby further restricting the ability of lower income jurors to fully participate in virtual trials.
In addition to having a disproportionate impact on socioeconomic jury diversity, virtual trials would also likely result in less racial diversity. According to the same Census Bureau report, Black households are “the least likely to own or use a desktop or laptop, own or use a tablet, or to have a broadband subscription.” Desktop or laptop access in Hispanic households also lags as compared to that of white households (68% and 81% respectively). This discrepancy would further exacerbate an ongoing problem in the American judicial system, where jury composition is currently disproportionately white and upper-middle class. In the words of one federal judge, “[u]nless you are totally blind, a judge cannot help but realize that when 100 people come into court for jury selection that there are one or two, or none, who are visible minorities.”
Given the significant racial disparities among defendants in the American criminal justice system, this is cause for concern. In fact, according to a 2018 report by the Sentencing Project, Black Americans are disproportionately more likely to be arrested, convicted, and face harsher sentences than white Americans accused of the same crime. The report concludes that, in effect, the United States “operates two distinct criminal justice systems: one for wealthy people [who are also disproportionately more likely to be white] and another for poor people and people of color.” Research suggests that one of the best ways to remedy this disparity is through increasing racial diversity among juries, as racially mixed juries are shown to deliberate longer, raise more questions, and consider a wider range of factors before making a decision. Given this context, a move to virtual criminal jury trials, which is likely to further decrease jury diversity, is both dangerous, due to the likelihood that such a shift will exacerbate existing systemic disparities, and potentially unconstitutional.
Finally, even if potential jurors had access to the technology necessary to participate in these proceedings, virtual trials require a level of technological facility that is likely to disqualify a significant portion of the population. While technophobia is not limited to a single age group, senior citizens are often less likely to feel comfortable using new technologies such as Zoom. According to a 2017 Pew Research study, only 51% of people over the age of 65 have broadband internet access at home, 42% own a smartphone, and 32% own a tablet. The same study also found that 73% of people in that age group require help setting up and using electronic devices. These statistics do not suggest that a system that would require jurors to troubleshoot issues largely on their own would be inclusive of disparate age groups, thereby further constraining the representative nature of the virtual jury pool.
So where does that leave virtual criminal jury trials? With the pandemic showing no signs of abating and criminal case dockets continuing to grow, courts will likely face increased pressure to move cases forward by any means possible. While the concept of trial by Zoom is no doubt attractive, it is important to consider the implications such a move would have on the rights of the accused. To paraphrase Benjamin Franklin: those who would surrender essential liberty to purchase a little temporary expediency may ultimately deserve neither.
This post was originally published on the COVID-19 and the Law blog.
Dessie Otachliska graduated from Harvard Law School in May 2021.
