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Virtual Criminal Jury Trial Getting Texas Test—iPads Included

Aug. 11, 2020, 8:50 AM

An Austin, Texas, court will begin what it says is the first U.S. virtual criminal jury trial on Tuesday, a closely watched experiment brought on by the coronavirus pandemic that’s requiring creative solutions.

Potential jurors who lack their own hardware will be provided court-issued iPads. The six jurors selected to serve in the misdemeanor traffic case will hear evidence in one room on Zoom and the public can watch on YouTube. Jurors will deliberate in a separate virtual room.

Court administrators say they hope the experiment will help them “be able to release best practices and some standards out to the courts both in Texas and perhaps around the world,” David Slayton, administrative director of Texas’ Office of Court Administration, said.

Courts across the U.S. are looking to live streaming platforms like Zoom as a way to resume jury trials, which, by their nature, require bringing together large groups of people into small spaces.

Remote jury trials pose a particular challenge in criminal cases with concerns ranging from jurors not paying attention, or being influenced by outside sources, to members of the public making unauthorized recordings of trial proceedings.

The risk is tarnishing the jury trial, which the justice system considers its gold standard, said Jennifer E. Laurin, a criminal law professor at the University of Texas at Austin School of Law who plans to tune in to the Austin case.

“From a resource standpoint, our justice system lacks the ability to continue to deliver that gold standard without demanding significant sacrifice of the protections that define the enterprise,” Laurin said.

What to Expect

The trial overseen by Judge Nicholas Chu will follow the same process as any other jury trial, albeit using very different means.

Thirty jurors will log on in the morning for the selection process before the trial. The six selected jurors will listen to the parties call witnesses and present evidence before they will go off separately to deliberate, Slayton said. When the trial is over, the court will pick up the iPads, sanitize them, and keep them for future use, he said.

While the trial is a first on the criminal side, it isn’t the first virtual jury trial during the pandemic. In May, a Texas court held a virtual civil jury trial that was nonbinding and it went better than expected, Slayton said.

“The jurors were very attentive in that trial,” he said. “The attorneys and the judge reported that they were even more transparent, open, and honest during the jury selection phase than they are in the courtroom. Perhaps because they’re more comfortable at home.”

The court also learned things during that civil trial it plans to implement this time around. Those include splitting jury selection into two groups and giving jurors access to the bailiff when they are deliberating in case of technical issues, Slayton said.

In Florida, a Duval County court on Monday held its first virtual civil trial with a binding verdict in a lawsuit against a gentleman’s club, the Florida Times-Union reported.

Criminal Justice Concerns

Virtual jury trials pose concerns about the rights of criminal defendants.

“From a Constitutional standpoint, part of the guarantee of an impartial jury is that jurors not be biased, including biased by influences that are external to the trial and jury deliberations,” said Laurin.

That’s already challenging in a world with social media, and virtual trials make it even harder for courts and attorneys to police, Laurin said. Jurors, for example, could be distracted by their phones or talking to family during the proceedings.

Defendants can’t communicate with their lawyers as easily as when they’re sitting side-by-side in a courtroom. And unlike most Zoom meetings, technical issues in criminal trials are much more high stakes.

“In a criminal trial, technological glitches can become constitutionally significant and that’s something that has to be remembered,” Laurin said.

Slayton said they are mindful of the constitutional rights of defendants, such as the right to confront witnesses. “But there may be cases like this one where the defendant consents and says they want to go forward in this manner,” Slayton said.

Nina J. Ginsberg, president of the National Association of Criminal Defense Lawyers, cautioned against exaggerating how useful the Austin experiment may be in gauging whether criminal jury trials can now go remote. A one-day trial may not be a great test case for how well a longer, more complicated criminal proceeding would play out, Ginsberg said.

“When there’s so little at stake, it’s very hard to tell how those same jurors would react in a different setting,” Ginsberg said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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