By Ian McDowell

 

The COVID-19 pandemic took the world by storm.  The effects on the economy and changes in everyday ways of life around the world can’t be understated.  The legal system is not immune from the virus and resulting pandemic- civil and criminal courts have been left to find ways to balance public health with the need to hold trials and other legal proceedings.  While some courts have began to conduct in-person proceedings (with ample safety precautions), this blog post will discuss a few of the issues faced by courts in utilizing technology to conduct virtual legal proceedings.

 

Legal proceedings in many parts of the country were halted as a result of the COVID-19 pandemic.  To illustrate, the Supreme Court of Virginia has issued ten judicial emergency extensions since March 2020, which have suspended both civil and criminal jury trials in most parts of the state. [1]  Placing a hold on in-person trials or other proceedings is sensible from a public health perspective: however, beyond concerns of creating an unmanageable backlog of both civil and criminal matters, indefinitely suspending criminal trials in particular raises obvious issues with regard to civil liberties and ensuring that defendants are afforded their 6th Amendment right to a speedy and public trial.  According to Senior U.S. District Court Judge (Western District of Washington) Marsha Pechman, “[t]he backlog is a big motivator (to conduct virtual trials or other proceedings) because we can’t have people sitting in custody for months and months on end and not offer them a way to have their criminal trials heard.” [2]

 

It was not until August 2020 that the first fully virtual criminal jury trial took place: a misdemeanor traffic case in Austin, Texas. [3]  This was viewed as an ideal case to try to conduct a live virtual jury trial because the defendant was not under any threat of a jail sentence, and merely faced a financial penalty. [4]  Technology was used extensively throughout this trial, including for uses beyond oral arguments: Zoom breakout rooms were utilized to allow the defendant to confer with counsel, and also to hold jury deliberations.  Further, Box (a file-sharing service) was used to allow the attorneys to post evidence for review. [5]

 

Though the court successfully concluded this case, it was not without issues- five potential jurors or jurors had to be dismissed due to technical issues.  In addition, audio and video feeds on Zoom occasionally froze, and jurors had to at times be admonished to remain focused on the trial, and not on any other distractions in their homes. [6]

 

Before conducting the trial, the Court purchased twenty iPads to lend to jurors that didn’t have access to a device at home, and ended up lending out four for use during the trial. [7]  Similarly, the Western District of Washington purchased laptops to lend out to jurors, and was prepared to train jurors on technology use if necessary. [8]  It is unsurprising that courts have had to purchase devices to lend out to jurors- a disproportionate number of low-income Americans do not own a computer or other device that will allow them to attend a proceeding virtually. [9]  Compounding on this issue is that temporary connection losses (or freezing) can be expected to continue in virtual legal proceedings due to the fact that tens of millions of Americans don’t have access to broadband (higher speed) Internet. [10]

 

There are concerns that commonplace issues such as temporary connection losses might have a significant effect on a legal proceeding.  According to Justin Bernstein, director of the A. Barry Cappello Program in Trial Advocacy at UCLA School of Law, “when you’re online, and someone (a juror) loses connection for 30 seconds or a minute or two minutes, what do we consider too much?  One answer can make the difference in a trial.” [11]

 

There were pre-pandemic concerns that conducting virtual hearings or trials may lead to detrimental outcomes for a defendant, as compared to if the same exact proceeding was conducted in person.  Studies have, for example, concluded that virtual bail hearings result in significantly higher bail amounts set than in-person hearings, ultimately resulting in the cessation of a video bail system in Cook County, Illinois (which includes Chicago). [12]  Further, “in-person testimony is seen as more believable than it’s virtual counterpart [for a number of reasons], including that video takes away the fact-finder’s ability to assess non-verbal cues; [and] conferencing technology can filter out voice frequencies associated with human emotion, which are critical to assessing credibility.” [13] These findings present clear and significant concerns as courts begin to contemplate conducting virtual trials where there is a possibility that the defendant may lose their liberty (as opposed to traffic cases where the defendant merely faces a fine).

 

To conclude, modern technology applications such as Zoom and Box (and their competitors) have made virtual legal proceedings possible.  However, conducting trials or other proceedings in a virtual setting brings new risks that Courts at all levels will need to comprehensively address and manage in order to ensure fairness to both civil litigants and defendants in criminal trials.  While issues such as screen freezing during a proceeding may not present significant civil liberties concerns in the context of a simple traffic case, it is incumbent on courts to find ways to conduct virtual legal proceedings in an equitable and fair manner if more serious criminal trials (such as for felonies) are to be conducted virtually.

 

[1] Neil Harvey, Judicial Emergency now Slated to Extend Into November, The Roanoke Times (Sep. 28, 2020), https://roanoke.com/news/local/judicial-emergency-now-slated-to-extend-into-november/article_f4a35b35-35f2-5885-8126-a4166d2494d2.html.

[2] Madison Alder, Loaner Laptops, Dry Runs: Virtual Federal Civil Trials on Tap, Bloomberg (Sep. 29, 2020),

https://www.bloomberglaw.com/document/X7L754JC000000?bna_news_filter=us-law-week&jcsearch=BNA%252000000174d560d941af7cff79a2b50001#jcite.

[3] Justin Jouvenal, Justice by Zoom: Frozen Video, a cat- and finally, a verdict.,  Washington Post: Legal Issues (Aug., 12, 2020), https://www.washingtonpost.com/local/legal-issues/justice-by-zoom-frozen-video-a-cat–and-finally-a-verdict/2020/08/12/3e073c56-dbd3-11ea-8051-d5f887d73381_story.html

[4] Id.

[5] Id.

[6] Id. 

[7] Id.

[8] Alder, supra note 2.

[9] Jason Tashea, The Legal and Technical Danger in Moving Criminal Courts Online, The Brookings Institution (Aug. 6, 2020), https://www.brookings.edu/techstream/the-legal-and-technical-danger-in-moving-criminal-courts-online/

[10] Id.

[11] Alder, supra note 2.

[12] Tashea, supra note 9. 

[13] Id.

Image Source: https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-videoconferencing-70825080