[Opinion]
The Case Against Mandatory Online Jury Trials in the Time of Corona
Written by Quentin Brogdon
In Gabriel García Márquez’s Love in the Time of Cholera, the
captain of a ship approaching its final port on a river raises the
yellow flag of cholera so that the port will not allow the ship to dock
and two lovers on the ship can avoid the scandal of being seen together
publicly. The supposed cholera outbreak on the ship exiles the lovers to
cruise the river forever. Embracing mandatory online jury trials in this
time of corona would exile us forever, like the passengers on Márquez’s
ship, from the foundation of our system of justice, the traditional jury
trial.
The traditional jury trial is the time-honored method trusted
to adjudicate whether a criminal defendant receives the death penalty.
It is the time-honored method trusted to adjudicate whether a
corporation owes an individual or another corporation millions, or even
billions of dollars. We should discard, out of hand, any
alternative that fails to achieve the fundamental goal of delivering
fair and just outcomes to our most important criminal and civil disputes
with the same degree of success as the traditional jury trial.
The magic of the traditional jury trial lies in two central ideas. The
first is the idea that a diverse jury of the litigants’ peers sits in
judgment of the dispute. The second is the idea that through a
time-honored alchemy, a jury of the litigants’ peers weighs the
credibility of the witnesses and the evidence to arrive at a fair and
just verdict. Online jury trials place these central ideas in mortal
jeopardy.
The first large loss in an online jury trial is the loss of a diverse
jury of the litigants’ peers. There can be no debate whatsoever about
whether online jury trials cause a loss of juror diversity. The only
debate is about how large a loss of juror diversity we are willing to
tolerate. Is a 5% loss acceptable? Is a 10% loss acceptable? Do we
simply resign ourselves to the fact that juror diversity in online jury
trials will be “close enough” to juror diversity in traditional jury
trials? If so, at what cost to litigants and our system of justice?
It is a pleasant fiction to believe that the internet is freely used
by all and accessible to all, regardless of income, race, or
socioeconomic status. The fiction absolutely does not square with the
reality, however. Household income, education, race, and whether someone
lives in a rural area are all key predictors of whether someone is
likely to use the internet and to have access to reliable internet
services. In 2019, 18% of adults from households earning less than
$30,000 were more likely to not use the internet, versus only 2% of the
most affluent adults.1 And 29% percent of those with less
than a high school degree did not use the internet, versus only 2% of
those with a college degree.2 And 14% of Hispanics and 15% of
Blacks did not use the internet, while only 8% of whites did not use the
internet.3 Access to the internet also is greatly dependent
upon whether a juror lives in a rural setting. In 2018, nearly 1 in 4
rural residents reported that access to high-speed internet—the type of
internet optimal for online jury trials—was a major problem in their
area.4 Rural residents also are less likely to own mobile
devices or to use the internet.5
These gaping disparities in access to reliable internet services have
continued unabated since the advent of COVID-19. In April 2020, 40% of
low-income parents reported it’s somewhat likely that their children
will have to use public Wi-Fi to complete homework remotely because of
the lack of a reliable internet connection at home, versus only 6% of
upper-income children.6 And 36% of low-income parents
reported their children are somewhat likely not to be able to complete
homework due to lack of access to any computer at home, versus only 4%
of upper-income children.7 In the face of these gaping,
unambiguous socioeconomic disparities in access to the core technologies
necessary for online jury trials, how can anyone seriously maintain that
juror diversity will not be adversely affected by online trials? The
loss of juror diversity alone is enough to require us to abandon
mandatory online jury trials, but it is far from the only problem with
such trials.
The second large loss in an online jury trial is the loss of the
ability to ensure that the court and the litigants keep the online
jurors’ undivided attention. Getting and keeping the attention of jurors
is increasingly difficult, even during in-person jury trials.
When an online juror is sitting in his or her living room with cellphone
in hand, in close proximity to his or her spouse, children, and pets, it
is next to impossible.
The third large loss in an online jury trial is the loss of a magical
set of connections and chemistries that can occur only when humans
interact face-to-face. Videoconferencing platforms on the internet have
existed only for a scant 25 years or so. For thousands of years
predating the appearance of these platforms, our brains became hardwired
for in-person communications. Our brains evolved to process information
within shared three-dimensional environments instead of within
closed-off, two-dimensional videoconferencing environments that
foreclose opportunities to perceive and process non-verbal
clues.8 A growing body of research confirms the commonsense
notion that interacting through computers decreases the ability of
people to form accurate assessments of the people with whom they
interact and decreases the ability to form meaningful bonds with
others.9
The outcome-determinative connections and chemistries imperiled by
online jury trials include those between: 1) the judge and the jurors,
2) the lawyers and the jurors, 3) the clients and the jurors, 4) the
witnesses and the jurors, and 5) the jurors themselves when they
deliberate. Lawyers must pick jurors, and jurors must assess witness
credibility by assessing subtle verbal and nonverbal clues. Asking
lawyers and jurors to accomplish these critical tasks within the
two-dimensional, closed-off environment of an online jury trial is akin
to asking someone to compose a picture of what is on the other side of a
door by peeking through a keyhole in the door.
Online jury trials also thwart and impede the connections and
chemistries necessary for meaningful jury deliberations. Jurors are
supposed to arrive at one verdict as part of a special in-person alchemy
that is achieved by assembling jurors together in one room. The very
outcomes of online jury trials are subject to serious question because
online trials cannot begin to replicate the unique in-person alchemy
that occurs during jury deliberations in traditional jury trials.
The fourth large loss in an online jury trial is the loss of “the
solemnity of the occasion factor.” In traditional jury trials, jurors
take part in a solemn and awe-inspiring exercise of their civic duties
in the formal setting of a courthouse. They sit close to each other, the
presiding judge in a black robe, the parties, the lawyers, the
witnesses, the trial exhibits, and the court staff. All of this is lost
within the stark, two-dimensional setting of an online video platform.
The challenge to our system of justice posed by COVID-19 is
unprecedented, and we will be judged by how we navigate these difficult
waters. Mandatory online jury trials are not the solution to our
COVID-19-crowded trial dockets, however. We must frankly acknowledge
that embracing mandatory online jury trials is equivalent to embracing
the untenable position that crowded trial dockets alone justify
disposing of cases using methods that mortally imperil the fair and just
dispositions of those cases. There is a place for voluntary
online jury trials, but we should never impose mandatory online
jury trials on litigants. We must not exile ourselves forever, like the
passengers on Márquez’s ship, from that irreplaceable foundation of our
system of justice, the traditional jury trial. TBJ
Opinions expressed on the Texas Bar Blog and in the Texas
Bar Journal are solely those of the authors. Have an opinion to
share? Email us your letters to the editor or articles for consideration
at tbj@texasbar.com. View our
submission guidelines at texasbar.com/submissions.
QUENTIN BROGDON
is a partner in Crain Brogdon Rogers in Dallas. He is the former
president of the Dallas chapter of the American Board of Trial
Advocates, a fellow of the International Academy of Trial Lawyers, a
fellow of the American College of Trial Lawyers, and a fellow of the
International Society of Barristers. Brogdon can be reached at qbrogdon@cbrlawfirm.com.
