By Criminal Defense Lawyer Jeremy Rosenthal
Collin County is kicking around the idea of jury trials via Zoom or some other similar platform. They just tried a virtual jury trial – sort of. It was a “summary jury trial” which is a practice run typically for wealthier litigants. The fake jury comes back and tells the parties what they think the outcome should be — and the parties then consider settling.
***What did you say? Sorry. Go ahead.***
And not to pick on Zoom. There are other similar platforms too, but I’ll just collectively refer to them here as Zoom. Sorry.
Judges organizing and developing the idea get A’s for ingenuity, effort, and passion for their jobs.
But it’s still a terrible idea. Remember, a jury trial is often the most important day in one or more person’s entire life. Here are some of the biggest reasons I can think of:
- Over Simplification of Human Communication
Human communication is complex, intricate and amazingly subtle.
I’ve interviewed thousands of potential jurors — and I have cross examined hundreds of witnesses. Many, many jurors cannot give my client a fair trial but would still swear they could. Many, many witnesses want to make sure I lose and evade questions until they are pinned into answering. A critical part of my job in the courtroom is to hone in on the most minor of cues from a juror or witness. An eye dart. A smirk. Posture. Hand position. Voice tone or inflection… and on and on an on.
***Sorry. Lost you for a second.***
Zoom and other similar platforms are — at least for now — tone deaf. These subtleties are either flattened, lost, or are drowned out in 20-people being crammed onto an 18-inch monitor.
And there is something to be said about accountability of the jurors too. Jurors deliberate knowing they will have to go back into the courtroom and look me, my client, the prosecutor and in many cases a victim in the eye. Jurors who share less of an emotional stake in the outcome will give the parties less of their focus and attention.
2. Too Much is At Stake
For criminal defendants decades may hang in the balance not to mention the tidal wave which hits their families and loved ones which can be practical, financial and certainly emotional. For victims it is their opportunity to be heard and have the jury see how real and fresh their pain truly is.
Zoom is probably fine for quick interactions and brief hearings. It’s a great tool to visit with clients both incarcerated and free on bond. It’s probably fine for motions practice with a Judge, lawyers, and possibly other witnesses during routine hearings too.
But any one of us would feel cheated and angry if we or our loved ones were sitting in jail after a trial where we couldn’t even see the jurors or our accusers in person. Any victim whose defendant is acquitted will feel the same way too.
***Wait, who is talking? Sorry!***
This is a jury trial — not a teamwork meeting or happy hour. Can you imagine deciding something as critical and complex as a sexual assault shaping the lives of countless people without some sort of personal interaction?
3. If Anyone Cares — It Violates a Bunch of Rights
This is a blog — not an amicus brief or a law review article. So I apologize if I keep this quick and direct.
***Look at that guy’s cat! He will knock down that picture on the wall***
Let’s start with the right to confront witnesses under the Sixth Amendment. Then we’ll go to Due Process under the Fifth and Fourteenth Amendment. Then let’s talk about the umpteen-million opinions you’ll see about the jurors ability to judge witnesses based on x, y, and z. Or maybe we just throw those all out because we need to get our docket moving?!?
Make no mistake — Judges are asking the specific question, “Can I get away with this without getting reversed?” My message to them — be my guest but don’t complain about trying the case when it comes back on appeal.
Is Zoom “good enough?” Perhaps in some ways and for some things. People can talk, listen and see videos and exhibits. But until the platform is as good as the Jedi Counsel meeting where Yoda can sit in his chair remotely from Kashyyyk and interact – it won’t be the same.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Super Lawyer by Thomson Reuters.