By Matt Hale
The friends and adversaries of the convention…concur…in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. ~ Alexander Hamilton (1788) (Federalist Papers No. 83)
For a trial lawyer, it is a harrowing moment when the Court’s Bailiff hollers out, “All rise for the jury!”; a moment preceded by months, usually years of work. Initially, 50 strangers will enter a courtroom to decide the fate of the case. Through a process called voir dire, the jury pool will be narrowed down to somewhere between seven and thirteen people. Together, these people will render a verdict. The 6th Amendment guarantees the right to a jury trial in criminal cases where the jury determines the innocence or guilt of the prosecuted. The 7th Amendment guarantees the right to a jury trial in civil cases whereby the jury determines the value of a deceased life or someone’s lifelong injuries.
I grew up loving Hollywood’s many jury trial movies. In The Verdict, Paul Newman plays a down-and-out personal injury lawyer, who spends more time at the bar than at his office. He works a case against the local hospital and one of its most renowned doctors and is able to prove his case through a surprise piece of evidence brought to him by a scared nurse, who witnessed the event that left his client in a vegetative state. In a dramatic scene at the end of the movie, the jury is called back in by the judge to provide their verdict: “We have agreed to hold for the plaintiff…but, your Honor, are we limited on the size of the award, what I mean, sir…are we permitted to award an amount greater than the amount the plaintiff asked for?” The judge informs they are not limited.
A live jury trial is a roller-coaster ride where the participants go from insufferable boredom to moments of high drama and emotion. As people on the stand testify, the impaneled jury is studying their body language and listening for the veracity of their testimony. A live courtroom provides a communed space for the participants of the trial to physically engage in the process. Jurors watch the lawyers present their cases and listen to witnesses testify. Whether aware of it or not, they are facing and tuning into facial expressions, body posture, and reactions and applying those factors into judging the truthfulness of the case. These jurors are physically together during the trial day (except for lunch breaks). After the evidence is provided and the parties have presented their cases, the jury—as a physical group—goes into a room to deliberate. They have all experienced the same trial in the same room. They have all seen the same witnesses and the same evidence, and have all drawn their individual conclusions. After deliberations, the aforementioned “All rise” instigates the delivery of the verdict, often experienced with high anxiety for the trial lawyer.
The jury is the heart of America’s justice system as it empowers people in the community to ultimately make day-to-day decisions in other’s lives all across our country. It is the local jury that decides the fair-trade value of a life and decides whether or not someone should be convicted of a crime. Without a jury, there can be no jury nullification.
In March 2020, the world was brought to a screeching halt by the government’s reaction to Covid-19. Suddenly, people could no longer congregate. This presented a conundrum for courts across the country. In King County, Washington, putting together a jury pool required at least a hundred people every week to meet the needs of several courtrooms. Post-Covid, some cases were stopped in the middle of a live jury trial, and many of the cases were completed over Zoom.
Zoom has become the default answer for Courts. The King County Court in Seattle, Washington spearheaded this transition. I watched the closing argument of one of the first Zoom trials, and it was fascinating. The jurors were all visible in their homes in their designated gallery view boxes. As the proceedings got started, a juror was chided for taking a drink: “We have to treat this like we are in a courtroom,” the judge admonished. I couldn’t help but giggle as another juror’s cat proudly showcased its butt on the camera for all to see. The judge ignored it and pretended it didn’t happen. This trial was for a civil case. I watched as the plaintiff’s lawyer did his best to give a Zoom PowerPoint presentation. It was clumsy, and it was hard to tell if anyone was paying attention. It felt like a virtual experience. Like watching a show about something. It didn’t feel like a real jury trial in a real courtroom—because it wasn’t. The case turned out okay for the plaintiff in the end, but I couldn’t help but wonder what it would have been like if the trial had been conducted live.
There have been mixed reviews from lawyers across the country about Zoom/virtual jury trials. Since COVID-19, they have been done in Washington State and Federal Courts. Some lawyers are simply refusing to conduct virtual jury trials. Early in the transition to virtual trials, there were anecdotal horror stories about Zoom trials being hacked and porn being played over the screens. Some courts, on the other hand, see them as a potential bonanza. In King County, the Seattle Courthouse is antiquated and surrounded by crime-ridden streets reluctantly patrolled by police. Debates have broken out over whether it is the city’s or the county’s responsibility to make the entrance safe. King County Superior Court has conducted over 300 virtual trials.[1] One judge is quoted as saying, “There’s no measurable difference frankly that us judges can tell from the many civil Zoom trials we’ve done and the few criminal Zoom trials we’ve done in outcomes.”[2] That seems like a dangerous statement, as given the few Zoom trials and short time period in which they have been conducted, there is not enough information to make such sweeping conclusions. The court is hoping to keep some of the virtual changes in place once the pandemic is over.[3] This prevents the county from having to remodel an old courthouse and pay to clean up the streets outside its entrance.
One insurance defense lawyer recounted in a YouTube video review of the “Nation’s First Zoom Trial” how the plaintiff’s lawyer’s Powerpoint went blank in the middle of his closing argument.[4] She described how a juror used his cell phone to email the bailiff, who was able to inform the plaintiff’s attorney what was going on (a mishap that could never have happened in a live trial). The defense lawyer delighted at how it hurt the credibility of the plaintiff’s side and described how she had hired technical assistance with the Zoom process to make sure everything worked (an affordable expense to an insurance company funding their case but not so feasible for the average plaintiff’s budget).
Throughout the years, I have learned how observant jurors can be when given the opportunity. A colleague had shared that even the clothing a client is wearing can make a difference in the jury’s decisions. This colleague had lost a case where his client wore cowboy boots every day to court. One of the jurors also wore cowboy boots and could not believe that anyone with the back injuries the plaintiff was complaining about could get those boots on. Based on that observation and belief, the jury found for the defense. Unfortunately the plaintiff’s lawyer didn’t think to have his client’s wife testify that she had been helping him get his boots on every morning.
Zoom cameras and images can be manipulated. The lighting can change how the person looks on the screen. The image can be softened to hide blemishes. Filters can change how the background appears to other viewers. Even the angle of the camera and location and quality of the microphone can drastically alter the overall presentation. Each piece of technology serves to influence the witnesses, the exhibits, and the overall credibility of the case.
Virtual Bail Hearings—The Court’s First Move to the Virtual World—And the Defendants Paid
One of the first ventures into the world of virtual hearings was video bail hearings. It’s expensive to bring defendants from the jail to the courtroom and a cost-savings to have the defendant on camera in the jail. Bail hearings are conducted to determine how much money the defendant has to put up to be released from jail, while his or her case is pending. This can make or break a criminal defense. Jails are tough places to meet clients, who have important information to share about their cases. Essentially, bail allows a defendant to really participate with his lawyer in his defense.
When virtual bail hearings started, the average amount of bail the judges required from a defendant went up a staggering 51%.[5] Shockingly, the average virtual bail hearing lasts just 30 seconds.[6] Judges are now removed from the tangible human presence found in a live courtroom where lawyers and their clients stand next to each other. Now, these defendants are just another image on a video screen, whose voices are distorted from poor sound quality and whose images are impacted by the angle of the camera, the available lighting, and their ability to engage with the camera. It is harder to connect with and be sympathetic toward an image on a screen versus face-to-face with another human being.
Jury Trials Are the Highest-Stakes Events
There can be billions of dollars at stake in a civil jury trial. Look at the verdicts against Monsanto for its herbicide Roundup. Look at the verdicts against drug manufacturers for their dangerous drugs. Recently, Johnson & Johnson was nailed with a huge verdict for its baby powder containing known carcinogens that were giving people cancer. On the criminal side, a jury trial can determine whether a human being, who is accused of a crime, will lose his freedom and possibly his life. Like it or not, jury verdicts have done a lot to correct bad corporate and government behavior.
It would not take much for a hacker to alter a Zoom signal just enough to make the difference in a case. No one can forget the poor attorney, who somehow ended up appearing at a virtual hearing with a cat face filter. “Your honor, I am not a cat.”[7] (If you have not seen this video, follow the endnote to a link; it’s an amusing 49 seconds.) This video has gone viral internationally, and the lawyer is lucky that his name didn’t get posted for the public to see. This video, however, lays bare the dangers of Zoom jury trials as it shows how even a subtle dirty trick can derail a lawyer and their case. What if this was your case? What if it were a case to determine something of critical national importance?
Ultimately, this issue will be decided in each of the individual counties across the country. The temptation to opt for the ease and convenience of Zoom trials may be the beginning of the end of the civil and criminal jury system as we know it. It is not surprising to think that technocrats do not want average people sitting on a jury to someday judge them. Ask yourself: Would you rather be judged by a jury of your peers or by some technocratic judge, who got their position through political favors, nepotism, and their connections within their local political party?
FootNotes:
