Jury trials on Zoom erode right to justice

A Bexar County administrative judge recently announced he is ready to start internet jury trials in civil cases, pending approval from the Texas Supreme Court.

While we have learned it is possible to successfully conduct many aspects of life over Zoom without causing much harm, a jury trial is not one of them, and we should take a moment and ask if that type of trial is in the best interest of all parties involved.

This pandemic caused the administration of justice to slow to a crawl. In response, judges started holding hearings online or safely in person. Proceedings that do not require a jury are now taking place every day.

In 1774, the English Parliament passed a law giving courts a free hand in selecting juries that were sympathetic to the crown, rather than a jury of peers. Among the grievances that led to the creation of the Declaration of Independence, the Founding Fathers explicitly stated the injuries created by the abuses of King George III were “for depriving us in many cases, the benefits of a trial by Jury.”

Sir William Blackstone, the 18th-century English scholar, noted that trial by jury was a right, not a privilege. This right was central to the founding of the United States and should be defended vigorously.

Before Bexar County holds a civil jury trial online, we should remember that our jury trial system, while imperfect, is the envy of the world. Here, we are presumed innocent. Here, plaintiffs must prove their claims to obtain relief from the acts of another. It is the jury system that provides the right of the individual to test the facts, to listen to the evidence and to let a jury of peers decide based on the law.

In a trial, jurors look to nonverbal cues to decide whether a witness lacks credibility or whether their testimony is believable. Psychologists have determined nonverbal communication accounts for 65 to 70 percent of all human communication and helps us decide the credibility and importance of a statement. Nonverbal cues, such as body movement and eye contact, have proven to make people perceive the speaker as more credible.

In 2005 article on the science of courtroom persuasion, the author, Jansen Voss, wrote: “Physical appearance has been found to have a strong correlation to believability.”

I am sympathetic to the backlog of cases and agree justice delayed is justice denied. Even so, trial by jury in name alone is not the answer during this pandemic.

Judges control their court and ensure that outside forces do not tamper with the administration of justice. In internet hearings, a judge cannot control the “courtroom.” Judges know neither if someone else is listening in, nor if someone might be just out of view, guiding or tampering with the juror. It would be difficult to detect if a juror chooses to take a screenshot of sensitive evidence, such as crime scene photos or evidence of child abuse, and post it online.

We experience “Zoom fatigue” and shortened attention spans online. A juror on a computer has the entire internet and its distractions beckoning. How many of us can honestly say we can spend one hour online and not send a text, check email and social media or look up a news story?

Regardless of how many warnings a judge issues, people just will not be able to help themselves.

I applaud the courts for trying to find solutions to these issues, and I am impressed with how hard Bexar County judges and attorneys are working to maintain proper decorum and keep cases moving.

However, the right to be evaluated by members of one’s community is a fundamental 800-year-old individual right that should be protected. No one should be forced to relinquish those rights.

Internet hearings are certainly here to stay. Nonetheless, they cannot replace a trial by a jury of peers. Our jury system has been watered down enough. For the few trials that remain, we should instead create a safe environment in the courtroom with social distancing and safety protocols in place. Let’s start there before we consider eroding a constitutional right and the integrity of American justice.