Could Zoom jury trials become the norm during the coronavirus pandemic?
As criminal courts grapple with the COVID-19 pandemic, some in the legal industry wonder whether a virtual jury trial could be next. Just weeks ago, the idea might have seemed inconceivable. Now, as remote meetings using videoconferencing tools such as Zoom become a regular fixture in courts, some are concerned that virtual trials would deprive defendants of the constitutional right to confront witnesses, an impartial jury, due process of law and effective counsel.
The technological and constitutional hurdles of a virtual trial go hand in hand, and long before the pandemic, courts have wrestled with how to conduct virtual hearings using video technology. One issue is making sure defendants and witnesses have access to high-speed internet so they can appear in the first place. According to the Federal Communications Commission, by the end of 2017, 21.3 million Americans lacked access to high-speed internet. There is also the question of how defendants can safely access public spaces with broadband during the pandemic.
People might bristle at the thought of sitting shoulder to shoulder in a jury box during the outbreak. Courts are looking toward Zoom and other video platforms as they seek to protect the public’s health despite privacy and security issues. Then there are the procedures defendants take for granted, such as conferring quietly with their lawyers during their trials.
Prior to the pandemic, if you walked into any criminal trial court in the country, you might see victims’ family members or defendants’ close relatives in the gallery. How might courts ensure public access to virtual court proceedings? Problems with access persist. Sometimes a judge will start a proceeding ahead of the scheduled time, so court watchers will enter halfway through
Video can be distancing and distorting. As courts come to grips with virtual hearings, they will need to consider how framing, lighting, camera angle and location might make jurors question the credibility of a witness or create bias. A jury could view defendants differently if they are seated in jail, wearing an orange jumpsuit and 10 feet away from a camera, or if they are framed from a low angle or have shadows on their faces. Conversely, a defendant represented by a high-powered law firm might have the financial means to appear in slickly produced video court proceedings and testify in lavish surroundings. In court, a jury views a witness or defendant in the context of the entire courtroom.