Trials

Are Virtual Trials Our Future?

Can due process be suspended indefinitely?

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Since quarantining began at the end of March, trials have been at a standstill.  No jurors can be, or want to be, invited to serve during the COVID-19 outbreak.

It makes sense. Being cooped up in a large group in cramped court rooms and even more cramped jury rooms for hours on end, potentially being chosen as a juror and locked into an often windowless room to deliberate, is one of the  worst things anyone would advise during a pandemic.

But what about the defendants who’ve been waiting in jail, some as long as two years, for their cases to be tried? Can due process be suspended indefinitely? At what point does the court have to either let the presumed-innocent inmates out, or think about holding jury trials virtually. Is that even possible? And if so, what constitutional rights are at risk?

This thought spread through the defense bar last week with a visceral response: “No way in hell do we want virtual jury trials.”

The cons are many:

  • How could the court know the jurors would not be influenced by other people at home as they potentially hear the evidence together?
  • Would jury duty only be possible for people with home computers and adequate internet service? This would cut out a juror base similar to most people in jail.
  • What about jurors living in close quarters — where would they be able to participate if they can’t find a room to themselves?
  • Would the camera adequately represent the body language and mannerisms of witnesses, so important in judging credibility?

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  • What about examining the evidence, holding it, seeing it up close for as long as each juror wants?
  •  How could it be guaranteed that jurors don’t wander to the toilet, as in a recent U.S. Supreme Court argument, or text a friend, or get interrupted by a doorbell, a pet, a child?
  • How to guarantee the witness wouldn’t be influenced or coached by someone off camera?
  •  Wouldn’t defendant’s right to confront the witnesses against him be seriously challenged where the attorney can’t see the witness face to face, approach him in the stand, and gauge his reactions?

Not seeing a defendant in the courtroom depersonalizes the experience and the connection jurors might make with an accused as a human being, interacting with his attorney, responding to evidence, with family in the courtroom.

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According to a recent article in the American Bar Association Journal, defendants generally fare worse in video proceedings than when seen in person. A 2010 study in Cook County, Illinois, showed that judges seeing a defendant only on a monitor, set higher bail than for defendants seen in person.

Then there’s the technology issue. I’ve found, in appearing in court for bail applications on Skype or Zoom recently, that there’s a lot of background noise, defendants have no way to privately communicate with their attorneys, and it takes a lot of coordination to review documents at the same time.  Multiply that by the amount of exhibits presented at a trial, the number of jurors and alternates, the premise of making the trial open to the public, and the vagaries of coordinating all this with the prison system — often interrupted by alarms and other emergencies — and it’s difficult to see how virtual trials would be advantageous for defendants, not violative of their constitutional rights, or even feasible.

That said, there’s no timeline in place for when jury trials will resume. Many of my cases are being put into July, not for trial but for updates. Should we guess that jurors will be welcome in September, or maybe not till January 2021. What about not until a vaccine is developed?

Prosecutors have been pushing for “bench” trials, trials with no jury, where a judge is the final arbiter. “Not guilty” are words that come with great difficulty to most judges. In my over 20 years of practice, I’ve never waived a jury. A defendant, generally, never fares as well, especially in a system where judges rely on public opinion for being voted to another term.

Eventually, something’s going to have to be done. My suggestion, let more people out on bail, or for those unable to make any bail, get more ankle-bracelet systems running (these cost money and many jurisdictions don’t have the technology.)

If bail is set, or more pre-trial inmates can be released with home monitoring, judges will have greater options than just keep the “presumed-innocent” inmate in jail indefinitely and hope for the best.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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