Virtual Trials Are the Only Rational Path Forward

Written by Robert Swafford

Courts are deploying their battle plans to finally get trials held in stasis as a result of the COVID-19 pandemic underway. Of the many options, virtual jury trials appear to be the best strategy for both providing justice and protecting the public.

Virtual jury trials have already been employed in Florida, New Jersey, Texas, and other states. This approach offers a number of obvious and immediate benefits amidst a paralyzing pandemic that even optimists expect will drag well into the summer and perhaps the fall and will give courts a way to start safely unclogging their already overstuffed trial backlogs.

Allowing jurors to decide the case from the safety of their own home seems particularly advantageous when you consider the unsavory alternatives, of which I’ve counted three.

The first would be to pretend like nothing ever happened, and do things the way we always have. It might seem crazy to residents in densely populated areas, but it’s gaining traction in rural areas less impacted by the coronavirus outbreak.

The second would be returning to in-person jury trials–plus masks, Plexiglas, social distancing, and other COVID-19 considerations. But those protections would be less effective over hours spent indoors with attorneys arguing throughout. There are other problems as well. If jurors are socially distanced and everyone is required to wear masks, an attorney will have a harder time emoting their case or reading the reaction of a juror.

The jury selection process is particularly problematic with in-person approaches. One of the first stages of a trial and arguably the most important, jury selection requires the court to herd a number of potential jurors into an enclosed space with limited seating room. Proper social distancing rules severely limit the number of potential jurors that can be in a room at a time, meaning the process won’t just be dangerous, it will take a whole lot longer than it usually does. One approach that many courts are taking is to use a local theater, gymnasium, or athletic facility with the potential jurors spread throughout. But with this approach, it is difficult for the jurors and the lawyers to hear and be heard and in some cases, for the lawyer to even see which panelist is talking.

Another approach is a hybrid system in which jury selection occurs virtually but the trial itself is held in person with social distancing. The advantage of this approach is that the part of the process that requires the largest number of people will be perfectly safe. Because fewer people are involved in the actual trial (12 jurors as opposed to a panel of 50) it is easier to socially distance. Even this system has significant problems, one of which is that if anyone associated with the trial process gets COVID-19 during the trial, it is likely that the judge would declare a mistrial, and everything would have to start again.

The final alternative would be to simply wait until the danger of COVID-19 has passed.

But that is simply not an acceptable option for people who have waited more than a year to get to trial. We all hope that the vaccination effort will quickly bring things back to normal, and that some new variant won’t create new risks, but as of yet, there are no guarantees as to when people will be able to safely gather.

Some are concerned that lower income families might have problems accessing the equipment or bandwidth necessary to attend a trial remotely. But virtual courtrooms could increase the likelihood of a representative jury by providing jurors with whatever equipment they’d need to serve, much like schools have found great success through iPads and Amazon Fires provided to students for educational purposes, especially once remote learning became the norm. It is far easier to imagine remedies to problems caused by virtual viewing than finding some way to make in-person trials hazardless.

Virtual trials aren’t just less likely to spread COVID-19; they are also more likely to enhance juror diversity, access to justice, and a fair trial. Research has shown that the jurors most likely to show up for service have been younger conservative men who don’t see the pandemic as a genuine threat. Women tend more often to be in caregiving roles, which means they will be less available for in-person service amid COVID-19.

If courts nationwide embrace virtual trials as the reasonable, rational path forward, they’ll find the benefits of greater and fairer access will make the programs worth keeping around once coronavirus is mercifully in the rear-view mirror.^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.

ROBERT SWAFFORD
is the founder and owner of Strike for Cause Jury Consulting, as well as the creator of the Strike for Cause Method of Jury Selection. He attended Baylor University where he received his B.A. in economics and his J.D. from Baylor Law School. Swafford has extensive training in powerful listening and effective speaking, as well as expertise in the field of ontology. Ontology provides the foundation for the Strike for Cause system.

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