Zoom Jury Trials — “It’s Good Enough” Lowers the Standard in Our Courtrooms

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

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:

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  1.  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.

Bottom Line

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.

 

 

 

 

 


Jury Trials vs. Judge Trials

October 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Here is the equation as to how any criminal trial in Texas works.  The proper law + the facts = the verdict.

Judges always determine the appropriate law to apply.  Then the facts are applied to the law to reach the verdict.  A jury determines the facts, but if both parties agree — then the judge can determine the facts instead.  The latter is a known as a “bench trial” or “trial by Court” which is commonly known as a “TBC” in the courthouse.

The U.S. Constitution guarantees a criminal defendant a right by jury trial.  Generally speaking its the defendant’s choice whether to choose a judge or a jury.  Texas prosecutors have recently asserted that the State of Texas also has a right to a jury trial as well… and therefore, they argue, that the only way the parties can have a TBC is by agreement.  Their assertion is largely unchallenged even though it’s legally unclear.  Practically speaking, then, both parties agree to waive a jury.

Here’s a practical example of how a jury trial works — in an assault case where the defendant claims self-defense, the Judge will conduct the trial, impanel the jury, and decides what evidence is legally admissible.  Once the evidence is concluded, the judge will decide (1) if the evidence legally sufficient to support a conviction; (2) if the defendant legally raised self-defense; and (3) what jury instructions to give so that the jury understands how to decide the facts.  The jury then deliberates and reaches their verdict based on the jury charge.

For a TBC, the Judge merely listens to all the evidence, rules on objections, and then renders a verdict — often without much deliberation.

There are tons of variables to consider if you’re presented with the option of waiving a jury and asking a judge to decide the case.  The Judge’s history and reputation and obviously the strength of the case must be considered and weighed against the local jury pool.

Judges prefer TBC’s because they’re far more efficient than jury trials.  They’re far quicker, generally less formal, and don’t involve having to manage a jury pool.  Just because judge prefer it, though, doesn’t make it the right choice.

After all, a criminal defense lawyer isn’t in the rights waiving business!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any case you should consult an attorney directly.