Would jury trials via video work?

The U.S. Constitution gives those accused of a crime the right to a jury trial. The Constitution does not include any express disease-related limitation on that right, so it presumably applies even during a pandemic.

But because of the pandemic, jury trials have been shut down nationwide for about the last three months. The vast majority of other court hearings that are occurring happen remotely over Zoom or similar videoconferencing tools. This has led some to propose that jury trials be conducted remotely over Zoom as well. While this idea is certainly worth discussing, this solution is anything but easy and problem free.

The first impediment to jury trials by video is the constitutional right that all defendants have to confront the witnesses against them. The idea behind this right is that it promotes honest testimony by forcing a witness to “look a defendant in the eye.” Further, in-person testimony allows the jury to assess credibility by observing a witness on the stand. These factors are so important that in nearly 20 years as a prosecutor, I have had only a handful of cases in which a defense attorney agreed to have a witness testify remotely. And this was only for relatively minor witnesses.

Another impediment to jury trials via video is the constitutional right to an impartial jury. This is commonly understood to mean a jury that is free from bias, but it also means a jury that is paying attention and is free from outside influence and outside sources of information. I have seen jurors nod off a time or two, but everyone could see that for themselves because everyone was in the same room. It would be extremely difficult for an attorney who is in the middle of examining a witness to monitor all of the jurors via video to gauge their reaction to the evidence being presented.

In addition to making it hard to know whether jurors were paying attention, video would not allow attorneys or the judge to know whether a juror was being influenced by outsiders or was receiving information from non-court sources. A juror sitting at home could be sitting in the same room as someone else who is listening to the proceedings and giving the juror an opinion on the guilt of the defendant. A juror could also be surfing the internet and looking up extraneous information about the defendant, the witnesses, the judge or the attorneys.

An additional impediment is the very real possibility that video transmissions would allow the jury to be able to tell that a defendant is in jail or prison. Most of the jails and prisons I am familiar with do not have broadcast facilities set up to look like a standard living room. It would not be hard for jurors to tell that a defendant sitting in a gray, concrete room is incarcerated. Judges for in-person trials go to great lengths to prevent jurors from knowing that a defendant is incarcerated because of the obvious potential for prejudice.

There is also a great potential for unfairness based on the income levels of defendants and witnesses. A wealthy defendant or witness may appear in plush surroundings via high quality internet while those who are low income appear sitting at a card table in a rundown apartment via a transmission that cuts in and out. Jurors may be strongly influenced by the disparity.

Clearly, we should keep in mind that defendants have a constitutional right to a speedy trial. While that does not mean an immediate trial, it surely doesn’t mean a trial that is indefinitely postponed. Some form of video jury trial may ultimately be the only way to honor this right. But this will require strong measures to ensure that all defendants and witnesses have the same quality of internet connections and the same type of visual backgrounds. It will also require a way to monitor jurors to ensure that they are paying attention and remain impartial. The constitution requires no less.