Virtual Voir Dire in the Age of COVID-19

By Christopher Vinson

The guarantee of a trial by jury is a fundamental right protected in the United States Constitution.[1]Understandably, voir dire, also known as jury selection, is an essential part of this process.[2] During a normal proceeding, potential jurors were seated in the courtroom and asked a series of questions by the trial judge and each party’s lawyers.[3] However, a global pandemic has required those involved in the process to rethink how to successfully complete voir dire.[4]

In an effort to adapt to the times, some court have seen the implementation of virtual voir dire.[5] Texas was the first state to conduct a civil jury trial remotely during the middle of the pandemic.[6] Like every trial, the proceeding began with voir dire.[7] The process included two judges and three attorneys in the courtroom, and twenty-five potential jurors at home over Zoom.[8] Despite being in the comfort of their own homes, jurors were instructed to treat the exercise as if they were in the courtroom.[9] This meant no use of Google or their phones to research information.[10]

The twenty-five potential jurors were split into two groups – one group of twelve and one group of thirteen.[11]While one group was being questioned by the attorneys, the other group was placed in a break-out room.[12]When jurors were asked questions they were able to “raise their hands” over zoom to indicate where they stood on the issues.[13] After further questioning, twelve jurors were ultimately chosen with the process lasting forty-five minutes.[14]

Transitioning to virtual voir dire will create new wrinkles in the process. The most obvious difference is that jurors will appear in a small square over a computer screen.[15] Potential jurors will be dressed less professionally and will be providing a peak into their homes or offices.[16] The main benefit to this change is that their facial expressions will be clearer.[17] This is an opportunity for the questioning attorney to gain insight into this person’s views. An attorney may observe nervous tics or other actions that they may normally miss during in-person voir dire.[18]

Virtual voir dire is not without its’ drawbacks. Despite the benefits of being able to focus on an individual’s face, an element of observation is lost since the potential jurors are no longer in the room.[19] During normal proceedings, an attorney may capture a glimpse of the person’s body language or demeanor as they stand or walk in the courtroom.[20] They may be able to see if the individual crosses their arms during a specific question.[21] This observation is eliminated if someone logs on through Zoom. Attorneys also lose the opportunity to witness how the jurors react to the answers of their fellow jurors.[22] The reactions can reveal inner sentiment that may not be revealed during the individual’s question and answer.[23]

There is also the risk that an attorney’s persuasive capabilities will be diminished over the internet.[24]Whether it be through their attire or the professional environment of the courtroom, some rely on their physical presence to help engender themselves to potential jurors and bolster their credibility.[25] Over zoom, the attorney appears to just be a talking head. Physical charm becomes less important when the physical aspect of voir dire is eliminated.

Like most things in life, the voir dire process has been upended by the pandemic. To the credit of the judicial system, they managed to implement technology to face those challenges. The new medium of Zoom for voir dire has been accompanied by its own benefits and drawbacks. As courts continue to manage jury trials during a pandemic, attorneys will need to adapt and develop new strategies to ensure they take advantage of the technology.

[1] See U.S. Const. art. III, § 2, cl. 3 (explaining that all criminal trials shall be by jury); see U.S. Const. amend. VI (providing that in criminal trials the accused enjoys the right to a speedy and public jury trial).

[2] Chelsea Dal Corso & Marcus Sandifer, Voir Dire in the Time of COVID-19, DLA Piper (Jul. 16, 2020), https://www.dlapiper.com/en/us/insights/publications/2020/07/voir-dire-in-the-time-of-covid-19/.

[3] Sherilyn Streicker, Jury Selection in Criminal Cases, NOLO, https://www.nolo.com/legal-encyclopedia/jury-selection-criminal-cases.html (last visited Feb. 25, 2021).

[4] Federal Judges Reinventing the Jury Trial During Pandemic, U.S. Courts (Aug. 27, 2020), https://www.uscourts.gov/news/2020/08/27/federal-judges-reinventing-jury-trial-during-pandemic.

[5] COVID-19’s Next Victim? The Rights of the Accused, Nat’l Ass’n of Crim. Def. Law., https://www.nacdl.org/Article/COVID19sNextVictim202005-PD (last visited Feb. 25, 2021).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] U.S. Legal Support, Remote Voir Dire: How to Conduct Effective Voir Dire in the New “Courtroom”, JD Supra (Jan. 26, 2021),https://www.jdsupra.com/legalnews/remote-voir-dire-how-to-conduct-1111331/.

[16] Id.

[17] Id.

[18] See Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.