Monday, August 10, 2020

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.

14 comments:

JC said...

The question is whether we rely on “old ways” or if we try something that may allow for more inclusion. One can say that we absolutely must maintain the personal interaction with the court, jury, witnesses, etc. An interesting study should be done on a group to determine if remote access to the “process” would reduce these miss. traffic warrants. For example, a trucker that lives in WA may not reasonably be able to come back to Podunk, TX to address that weight citation he/she received. I get the concerns about preserving the formality of the courts but can we progress and open the courts to those who may not have the ability to get there? We are a continuously moving/transient society. We should embrace technology where we can. On another note, remote technology is the end of massing people in office towers in any major metropolitan area. The permanent impacts will have effects on having to drive “downtown” in a herd and climb into an office building. It’s obsolete. We’ve proven we can do it successfully. The death throes of densely concentrated metropolitan areas are upon us.

tito said...

That’s hardly “The Question.” It’s at best a tangential argument. Being accused of a crime in a locale different from where you reside is a valid issue. Particularly if you’re expected to stand trial somewhere that’s not readily accessible to you.

However, the problems stated in the article still completely apply to that scenario. It isn’t simply a matter of “preserving the formality of the courts.” That’s a deceptively reductive synopsis.

The real quandary of “Trial by Zoom” as a concept is it provides no clear boundaries for ensuring a fair trial. This is not to say in-person trials are (ever?) “fair”, but their practices and characteristics have at least been conceived and/or evolved with that goal in mind. A remote approach to criminal trials should attempt to provide an equal level of “fairness” as the traditional approach.

To wit, how do you ensure witnesses are not reading off of notes when questioned? How do you enable lawyers to object to a line of questioning, thereby immediately pausing the discussion, in real time? How do you ensure all parties have adequate (and equitable) access to the required technology? How do you enforce uninterrupted engagement (could jurors be playing solitaire as attorneys present their case?)

The thesis isn’t “Remote bad, in-person good.” It’s that we’re attempting to coerce a traditional activity (a criminal trial) into a different milieu (remote video conferencing) without considering, and widely discussing the potential unexpected repercussions of such a change. The pandemic has forced all of us to hastily adapt a large portion of our lives into a remote setting, and most of the time that’s been fine. But when a person’s freedom (arguably their life) is at stake, we owe it to them and ourselves as agents of change in a system, to take a much more measured approach.

DP said...

This is a great article. As to the first commenter, I would add that "old ways" / "new ways" is a false dichotomy, when we are discussing fundamental protections for the accused that have been slowly developed since the times of the Magna Carta. There have been a few pandemics and plagues since the jury trial began, and also massive upheaval and technological changes in society. There has always been negative pressure on this fundamental right. Technology and "studies" simply won't replace hundreds of years of human experience. I'll be ready to do away with in-person jury trials as soon as we have done away with prisons and jails.

Anonymous said...

Ms. Dyer's points regarding immediacy and the ability to look the witness in the eye raise questions about a practice already accepted in the courts. That is allowing witnesses to testify via video. The reason most often cited for that allowance is so that the witness is not traumatized by facing the accused. If the reasons for not allowing "Zoom" trials are valid, then why is video testimony allowed in any trial venue?

Skip Davis said...


I applaud the efforts of Travis County to address this conundrum caused by the Coronavirus-19. This article is short-sighted and alarmist, and harkens back to the childhood fable of Chicken Little. The alarmist raises issues that are more aspirational than practical, and concerns that are more about form and style that do not implicate unconstitutional violations of substance. In Texas, we hear it often as “harmless error.”

Let’s talk law:
For instance the right to confrontation is already limited in scope to “testimonial” statements. The premise that the right to confrontation secured by the Confrontation Clause *is absolute* is just not true. The right to confrontation does not necessarily require live and in-person “confrontation.” In fact there are several long-standing exceptions to the “right to confront one’s accuser” that are are recognized by the line of SCOTUS caselaw, following along Crawford v. Washington and Davis v. Washington, both opinions scribed by the notably conservative Justice Antonio Scalia. Additionally, there are special witnesses who don’t have to be in court to testify that are otherwise codified in law, like children in some cases. So the complaint about confrontation is more about form than substance.

I think the more pressing concern is the right to Speedy Trial: a person accused of a crime has the constitutional right to a speedy trial secured in the 6th Amendment. That is so that the person charged, the accused, doesn’t languish in jail or is not otherwise prejudiced by delay while awaiting trial. Famously, the modern right to Speedy Trial has been recognized by SCOTUS in Barker v. Wingo case (1972) and later codified in the modern US Speedy Trial Act of 1974.

Concerns about speedy trial are different from confrontation concerns, but no less important. The two concepts are not mutually exclusive nor is one more important than the other. Both of these critical jurisprudential protections are necessary and exist independently of one another. In recent cases, Doggett v. United States (1992) the Supreme Court determined that Doggett's eight and a half year wait for a trial violated his sixth amendment rights, but a recent Texas case about speedy trial illustrates that even a one year delay can be a Speedy Trial violation. See Sanchez v State of Texas NO. 01-17-00751-CR.

The modern speedy trial cases are about the perishable nature of evidence, the loss of which serves to deprive the accused of a fair trial, a trial by evidence, rather than trial by mere accusation. The types of perishable evidence: are the loss of memory, loss of physical evidence, the change in scene, and in extreme case the physical loss of actual witnesses themselves.

Trials must go and cannot be delayed when alternatives to in-person or live proceedings are available, although not optimum, but yet are adequate to guarantee a fair trial. Testimony by video feed is commonplace in modern trials. Trial lawyers must adapt. Law must evolve. We stopped centuries ago dunking women accused of witchcraft as evidence. It’s time we apply technology to improve the timeliness of prosecution where due process is not otherwise violated. It’s 2020 not 1954.

Most of the complaints raised can be addressed by use of technology, and by leadership re-thinking the logistics of trial.

To do otherwise and delay trial without limit is for the government to engage in Speedy Trial violations writ large, if cases don’t get to trial. The right to speedy trial requires timely prosecution, or be dismissed with prejudice for delay.

And THAT’S the conundrum really. Don’t be fooled by Chicken Little

Gritsforbreakfast said...

Skip, you make some good points. It's regrettable you were incapable of doing so without name calling. I'm used to the ad hominem responses and probably tolerate them on here more than I should. But Katy's a guest. Please show her more respect.

Zoom trials are a new thing in the world and the idea deserves to be vetted. This post was intended to launch that conversation. One can't identify the pros and cons to a practice without debating them.

Anonymous said...

Name calliing? What are you talking about...Skip referenced a traditional children’s lesson. Nobody call anybody names. Debate is hard. Don’t be so sensitive.

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