Can Justice Be Served on Zoom?

COVID-19 has transformed America’s courts.

COVID-19 has transformed America’s courts.

In July, Michelle Rick, then a circuitcourt judge in two Michigan counties, tweeted cheerily about a divorce she’d recently finalized. The participants had appeared in court via their smartphones. “He was on the road & parked his car to attend; she video-tx’d from her work breakroom,” the judge wrote. They were done in 15 minutes—faster than the proverbial Reno divorce.

Last spring, as COVID-19 infections surged for the first time, many American courts curtailed their operations. As case backlogs swelled, courts moved online, at a speed that has amazed—and sometimes alarmed—judges, prosecutors, and defense attorneys. In the past year, U.S. courts have conducted millions of hearings, depositions, arraignments, settlement conferences, and even trials—nearly entirely in civil cases or for minor criminal offenses—over Zoom and other meeting platforms. As of late February, Texas, the state that’s moved online most aggressively, had held 1.1 million remote proceedings.

“Virtual justice” (the preferred, if unsettling, term) is an emergency response to a dire situation. But it is also a vision some judicial innovators had long tried to realize. One leading booster, Michigan Chief Justice Bridget Mary Mccormack, told me that going online can make courts not only safer but “more transparent, more accessible, and more convenient.” Witnesses, jurors, and litigants no longer need to miss hours of work and fight traffic. Attorneys with cases in multiple courts can jump from one to another by swiping on their phones.

In July the Conference of Chief Justices and the Conference of State Court Administrators jointly endorsed a set of “Guiding Principles for Post-pandemic Court Technology” with a blunt message: The legal system should “move as many court processes as possible online,” and keep them there after the risk of infection passes. The pandemic, they wrote, “is not the disruption courts wanted, but it is the disruption that courts needed.”

America’s courts are burdened by weighty encrustations of complexity and habit, from black robes and “All rise” to arcane trial procedures. COVID-19 has forced them to improvise and experiment. Now, as a post-pandemic future glimmers, we have a chance to reflect. How much of that experimentation will survive after the crisis abates? Given the stakes involved in the justice system, how much should?

There are good reasons to be wary of moving fast. An estimated 42 million Americans live beyond the reach of broadband service, and older people may be unable or unwilling to master videoconferencing technology. Douglas Hiatt, a Seattle defense attorney, refuses to try cases remotely (“They can hold me in contempt if they want”). “A lot of my clients are poor,” he told me. “They don’t have access to the internet … And plenty of folks are illiterate or non-english speakers and cannot navigate this stuff.”

Courthouses have addressed the digital divide by setting up Zoom kiosks and, in Texas, lending tablets to jurors. Defendants can log in at libraries, if they’re open, or call in by phone. But imagine trying to plead your case before a judge while your phone cuts in and out, your kids wail in the background, or library patrons hiss shhhh.

Imagine, too, your trial being live-streamed on Youtube. Virtual courts fulfill the constitutional requirement that proceedings be public either by screening them in nearly empty courtrooms or (routinely in Michigan, sometimes in Texas) live-streaming them online. In March I watched a jury trial in San Antonio, an eviction suit revolving around petty disputes between neighbors. It afforded all the dubious voyeuristic pleasures of reality television. I felt queasy; this wasn’t supposed to be Judge Judy. Without proper controls, streaming raises the risk that “very private, embarrassing moments can be

preserved forever, for people’s kids to see,” Chief Justice Mccormack told me. “Anybody can record it and use it against you later.” States try to prevent this with do not copy watermarks and by directing judges to take down videos immediately, but that doesn’t always happen.

The live-streams have proved an unlikely hit; last year, Michigan’s courts attracted nearly 60,000 Youtube subscribers. And that was before a Texas attorney made virtual court an internet sensation when he neglected to turn off the kitten filter on the computer he was using and had to reassure the judge, “I’m here live. I’m not a cat.”

Keeping online jurors present and attentive is a challenge schoolteachers might recognize. Jurors have been caught exercising, napping, talking to people off-screen, and leaving to get snacks. Abner Burnett, the chief public defender at Texas Rio Grande Legal Aid, watched one early virtual voir dire, where lawyers accept or disqualify prospective jurors. “One person took a call in the middle and walked away,” he told me. “Another couldn’t get the screen image right side up. I’d hate to have that be the jury that decides whether I go to prison.”

A more serious concern is that jurors, and witnesses, may get coached or coerced by offscreen eavesdroppers. Judge Rick, who is now on an appeals court, worries especially about domestic-violence victims: “I don’t know where they’re phoning in from, whether someone is exerting influence over them.”

But most of virtual courts’ shortcomings are intrinsic to live courts, too. “You have to remember, the comparison is not to perfection,” Jennifer D. Bailey, the administrative circuit civil judge in Miamidade County, Florida, told me. “Every day, we don’t have perfection. The question is, can we have a fair process?”

A cornerstone of a fair process is the accused’s right “to be confronted with the witnesses against him”—as guaranteed by the Sixth Amendment’s “confrontation clause.” With occasional exceptions, such as when traumatized children or rape victims testify on video, “confrontation” has always been face-to-face.

That’s in part because jurors and judges gauge suspects’ and witnesses’ credibility through their demeanor and body language. Lawyers screen prospective jurors the same way; like poker players, they tend to value unspoken signals and tells. “I can’t pick a jury online,” Hiatt, the defense attorney, said. “I’ve got to be in the room with those people.” And at trial, he said, the fog of video makes it easier for witnesses to lie.

The importance of physical presence is a rare point on which defenders and prosecutors agree. “I do not see how people can fully assess credibility if we are not all in the same room,” Nancy Parr, the president of the National District Attorneys Association, told me.

Alex Bunin, the chief public defender in Harris County, Texas, notes that virtual justice interposes emotional as well as perceptual distance—to dire

effect. “Once you distance people, the ability to have empathy diminishes greatly,” he told me. “If you watch a trial on-screen, you don’t respond as you would in person.”

There’s some preliminary evidence that this distance can affect even judges, supposed paragons of impartiality. For nine years, starting in 1999, Cook County, Illinois, conducted most of its bail hearings via closed-circuit television. The sums required for release rose immediately and stayed elevated—51 percent higher, on average, a study in the Journal of Criminal Law and Criminology found. Bail did not rise in cases still heard in person. Changes in the judicial roster may have played a part, but it appeared that judges were more willing to trust defendants and grant lower bail when they saw them face-to-face.

Despite all these reasons to be nervous about virtual justice, its rise may be inevitable. “There is absolutely no doubt that we’re not going back to what we used to do,” Mccormack said.

Concerns about access, and the quality of that access, are real. But the digital divide has proved narrower than feared, largely thanks to the prevalence of smartphones. Data suggest that going virtual has enabled many more people to participate in the justice system. Before, many defendants failed to show up in court—about 20 percent in criminal cases in New Jersey’s superior courts, according to the National Center for State Courts, and about 11 percent in all cases in Michigan. The consequences could be severe: fines, bench warrants, re-arrests—a merry-go-round of troubles for people already in trouble. But after those states moved online, nearly 100 percent of defendants showed up.

Tenants facing eviction in Arizona and parents threatened with losing their children in Texas also proved much more likely to make their court dates when they could do so online.

JUDGES WERE APPARENTLY

MORE WILLING

TO TRUST DEFENDANTS AND GRANT LOWER BAIL WHEN THEY

SAW THEM FACE-TO-FACE.

Likewise citizens summoned for jury duty: In Texas, 60 to 80 percent show up online, says David Slayton, the state’s court administrator. That’s twice as many as formerly appeared in person. The trend bodes well for diversifying juries, which tend to skew white and affluent.

For all the worries that prosecutors and defense attorneys have expressed about not being able to read people on Zoom, reducing the influence of demeanor and body language in trials might actually help check the racial and cultural biases that inflect our perceptions. Study after study suggests that humans are dismayingly bad at distinguishing liars from truth tellers. The legal scholar Julia Simon-kerr argues that masking in court could aid the search for truth by freeing people from trying to interpret others’ demeanor.

At the same time, videoconferencing could create new opportunities for understanding and empathy. “Why not use technology to bring the judge into the defendant’s world?” asks Andrew Guthrie Ferguson, a law professor at American University and a former public defender. If a judge could see a defendant’s children or meager living conditions before sentencing, she might better appreciate the consequences of her decision.

Finally, virtual court raises this question: Do we really need judges and lawyers to settle all our disagreements? Michigan has begun offering civil litigants an “online dispute resolution platform.” The website walks people through their options and, if they reach an agreement, produces the necessary documents. Online alternatives help “decenter courts,” Ferguson argues. Traditional courts “are all based on judges’ time. Everybody else revolves around them. Zoom changes that.”

It can also keep charismatic or bullying lawyers from steamrolling everyone else. Judge Bailey sees virtual justice as “an equalizer.” Lawyers attend seminars on how to “dominate a courtroom,” she explained. “It’s a lot harder to dominate on Zoom. Everyone gets their say.” Dial down the theatrics, Bailey argues, and “maybe we could focus more on the law and the facts.”

As these trade-offs become clearer, some initial consensus is emerging as to what virtual courts should and shouldn’t do post-pandemic. Just about everyone, even a skeptic like Douglas Hiatt, agrees that they should keep handling the routine business—from scheduling and settlement conferences to contested traffic tickets and uncontested divorces—that fills most court time.

At the other end of the spectrum, almost everyone agrees that the confrontation clause still means that the state cannot compel the accused to submit to a remote trial. One exception is Nathan Hecht, Texas’s chief justice. He suggests that the clause is due for reexamination. “The Constitution gives a criminal defendant the right to confront his accusers. We’re beginning to have a philosophical discussion about what that means,” Hecht told me. “Does that mean in person? What if you can’t? Just what part does interpersonal contact play in deliberation, judgment, reason … Universities are going to be studying this for years.”

But even Texas will conduct remote jury trials for crimes carrying jail time only if defendants waive their right to an in-person trial—and so far, none has. Some courts now stage “hybrid trials,” picking juries remotely and conducting masked, distanced trials in the courtroom. Others do initial screening online and voir dire in person.

These experiments will likely continue even after vaccines make courtrooms safe again; in justice, as in so many other realms of life, what goes online will probably stay online. “Everyone wants to get back to normal,” Bailey said. But “we need to remember what was good about normal and what wasn’t.”

Eric Scigliano’s latest book is The Big Thaw: Ancient Carbon, Modern Science, and a Race to Save the World.