Don't be fooled by the shiny new object of online jury trials

This guest blog post was authored by Kathryn Dyer, clinical professor at UT Law’s Criminal Defense Clinic (for identification purposes only) and long-time public defender.

Tomorrow, Travis County will hold what is being billed as “the nation’s first binding criminal jury trial held via video conference,” i.e. trial by Zoom. The case, which is for a speeding ticket, is considered “low-level” because as a Class C misdemeanor in Texas it does not carry the possibility of jail time as punishment and will be appealable to a county court. For this reason, Travis County Justice of the Peace Nicholas Chu thinks it’s a good place to start virtual jury trials since in-person jury trials are generally suspended (the Texas Supreme Court has basically banned in-person jury trials until October 1, a deadline that’s been extended multiple times during the pandemic). David Slayton at the Office of Court Administration sees the start of virtual jury trials in Texas as an indication that Texas is “leading the way.” 

This trial brings us into a brave new world, and it is disturbing how little dissent and concern it is garnering. In-person interaction with the jury and witnesses are essential to mounting a zealous defense under the Sixth Amendment of the U.S. Constitution. The Sixth Amendment provides people charged with crimes numerous protections, meant to be critical checks on the government’s power to take you from society and put you in prison, including the rights to a public trial by an impartial jury and the right to confront your accuser.

Imagine the feeling you get when you stand up to speak in front of a room full of people, whether at a conference, a funeral, or even jury duty. That feeling you get – it might be a pit in your stomach, sweat on your hands, or the slight trip over the words as you say them – is a critical tool lawyers use throughout a criminal trial.  

This is key to empaneling an impartial jury. At the beginning of a trial, lawyers question potential jurors to determine whether there are biases that make a person ineligible to serve as a fair juror. In-person questioning allows the lawyers and judge to determine whether a person would be able to fulfill that duty, including by picking up on verbal answers and non-verbal clues. 

During the trial, the person charged has a right to confront witnesses, and at least two of the reasons behind the Confrontation Clause require this be in-person: the witness accusing must be able to look the person accused in the eye, and in many cases make an identification; and the jury is required to make a credibility determination about witnesses. 

The credibility determination that the jury will make comes, in part, from the witness being under pressure to tell the truth. The witness is sworn to tell the truth under oath in front of the judge, jury, and person charged. It requires the witness testify from memory about what they saw. When a witness is testifying over an online platform, with a click of a button, they can turn off the video image of the person they are accusing, the judge, or the public. A witness can read a script behind the computer, read or refer to notes, or otherwise pre-write their testimony.

Other Sixth Amendment rights are also hindered by virtual jury trials, including the right to put on a defense. During a trial, lawyers and clients regularly confer with each other about what is happening and next steps. On an online platform, each player is on their own island with almost no ability to privately communicate while maintaining attorney-client privilege. Further, lawyers on both sides need to make objections to prevent impermissible questions, answers, or evidence. That is nearly impossible to do in real time over a virtual platform because of mute buttons, delays in video feeds, and the like.

Further, the digital divide will mean the “haves,” those technologically able to access trials and jury duty, will be able to participate effectively, and the “have nots,” those without such access, will not. Jury service and public observation require the technological capability to stream the trial without interruption using high speed internet. According to the Pew Research Center, approximately 10% of Americans do not use the internet, and over 25% do not have access to home broadband internet. This produces yet another barrier to serving on juries and observing public trials, bedrocks of this country’s legal system.

Even if Travis County has agreed to provide iPads for those potential jurors without proper equipment, not everyone has high-speed internet access or a room that is completely private as required. We saw that in the first virtual jury trial (notably, a non-binding civil matter where liberty was not at issue), there were distractions from the case and even a person who walked away from the proceedings to take a phone call.

Finally, research shows that people charged with crimes are treated more harshly when they appear via video instead of in person. When jurors, judges, and witnesses don’t have the ability to look each other in the eye, we can expect harsher, less fair outcomes.

Innovation should not replace constitutional bedrocks. The right to a speedy, public trial must innovate in the time of a pandemic, but not to eliminate the in-person jury trial. It is about making adjustments to ensure safe, in-person jury trials occur without forgoing fundamental rights.