Virtual Criminal Jury Test in Texas Paves Way for Sequels

The first U.S. criminal jury trial conducted this week via video conference in Austin, Texas, is getting more scrutiny than the typical traffic matter as court administrators and legal observers tease out lessons for future cases.

The trial—which drew about 1,000 YouTube viewers at one point—had its share of technical glitches. One juror using a court-provided iPad was dismissed because of a connectivity issue before the trial began and replaced by an alternate.

Some jurors logged on with their names visible and Judge Nicholas Chu, who presided in the trial, later called out one for looking to the side and reminded them not to be multitasking during the process.

Hiccups aside, Chu and Texas court administrators think the experiment went well enough to serve as a potential model for how to restart jury trials in the middle of the Covid-19 pandemic, or at least resume trials where only a judge deliberates.

“This could potentially show that for courts that are holding off on bench trials, there may not be a need to hold off,” Chu said in an interview.

Concerns remain, however, that virtual trials don’t serve defendants as well as in-person proceedings, and that they should be used with caution during the pandemic.

“As I watched yesterday, I thought how powerless I would feel as a defense attorney to actually be effectively navigating this system with my client because they’re not with me,” Messina Madson, a defense attorney and former acting district attorney for Dallas County, said.

“I’m not there for their questions, I’m not there for their emotions. So are they really getting their right to counsel?” Madson asked.

The proceeding proved to the court, however, that some concerns about judging the credibility of witnesses and jurors following instructions were unfounded, Chu said. Going forward, Chu said, he could see the virtual proceeding being used again in more cases where jail time isn’t an option.

While problems developed with one loaner iPad the court offered to jurors without the technology to participate, Chu said, that’s what made it possible for the jury foreperson to participate.

“That person told us afterwards that he would not have been able to participate meaningfully if he didn’t have that iPad,” Chu said.

The Trial

The trial, by design, involved a relatively low stakes criminal matter. The issue was whether the defendant was guilty of speeding in a construction zone with workers present, a criminal traffic violation under Texas law.

In the morning, prospective jurors logged on to start the selection process that lasted about four hours. After a break, the three-hour trial followed.

Many jurors joined from living rooms and bedrooms, while the prosecution and defense appeared in polished-looking offices. The defendant sat in front of a blank white wall. Chu wore a black robe and was flanked by two flags.

After the presentation of video and photo evidence and witness testimony from the law enforcement officer who gave her the ticket, the jury found that she was guilty of speeding but didn’t conclude that it had been a construction zone when workers were present.

“History has been made,” Chu said after the jury returned its verdict.

Tech Issues

Some observers noticed issues that might have implications in future cases, including audio cutting out and distracted jurors.

“There were notable changes and from my standpoint losses, in terms of the trial atmosphere that may not rise to a level of constitutional error, but make this a less than ideal scenario,” said Jennifer E. Laurin, a criminal law professor at the University of Texas at Austin who watched the trial.

A virtual trial might make sense with a lower level offense when everyone consents and the defendant is willing to waive some rights, Madson said.

The same may not hold true in more complicated issues like domestic violence disputes. Madson said she worries “that we are sacrificing things for efficiency, where the cost isn’t worth it.”

Chu said the court took away its own lessons. To avoid making jurors’ names visible, the check-in probably wouldn’t be broadcast in the future, for example.

Prior to the trial, he said the court ran multiple tests to determine whether the virtual proceeding would meet constitutional requirements.

“Being the first in terms of figuring all this out, we had to ask some existential questions about what truly is a jury trial,” Chu said.