“Telejurisprudence” in the Age of Covid-19, Part II

A  mere month ago I asserted there would never be a jury trial by teleconference in a blog post for Justice Speakers Institute, LLC.  Not only was I proved wrong last month in Texas but, as it turns out, the first trial conducted by video was in Ohio in 1971.[i] 

The History of Video Trials

In the Ohio trial, all the testimony was recorded outside the presence of the jury, objections were made and the judge, Hon. James L. McCrystal, who ruled on sustainable objections, then omitted them from the tape.  This came to be known as a prerecorded videotape trial presentation (PRVTT)[ii] and he went on to conduct more than 300 civil jury trials that way.  The named parties were present during the video presentations to the jurors and opening and closing statements were given in person.

Commentators wondered about the effects of video testimony on the jurors and there were two studies comparing a condemnation action in Ohio and a motor vehicle crash in California[iii]  that were held by PRVTT.  Jurors found the quality of the video testimony to be adequate but had a hard time with charts and other documents that were not professionally prepared.  In judging the veracity of the parties as witnesses, one juror said, “When I watched something where I felt that I didn’t quite think that they were telling the truth, whether they were really uncertain, I would look at them and see what sort of defensive posture they were taking in the situation.”[iv]

While some jurors felt the videotape was too impersonal, other jurors found that to be an advantage.  Some jurors said:

“They found fewer distractions watching television than participating in a live trial. Indeed, one juror became so involved in the medium that she said she had to keep reminding herself that this was a real trial and not merely another episode of a popular television program involving lawyers.”

As a side note, she said television was much more exciting than a trial,[v] a conclusion that is all too familiar to trial judges.

Civil vs. Criminal Cases

Both the Ohio and California jurors supported continued use of PRVTT in civil cases, however there was a marked difference in their opinions when it came to criminal cases.

“While 76 percent of the Ohio jurors reported they would opt for videotape in a civil case in which they were litigants, only 43 percent indicated they would choose videotape for a criminal trial in which they were defendants. The California jurors’ opposition to the use of PRVTTs for criminal trials was close to unanimous. They expressed the view, that when the liberty of the accused was at stake, the courtroom drama should be played to a live audience by a live company of actors.”[vi]

Simultaneous Trials

In a twist on this subject, Hawai’i Judge Shunichi Kimura in the late 70s simultaneously tried a jury trial and a court trial.  The jury sat in one courtroom and the bench trial was being videotaped in another.  If there was an objection in the bench trial, he would go into that courtroom, rule, then return to his jury.  He watched the video of the court trial at night and put quite a dent in the court’s trial backlog.[vii]

Last Month’s Jury Trial

Using what looked to be Zoom, 26 jurors “met” for jury selection on May 18, 2020 in North Texas.  The case was about insurance coverage for damage caused by a storm.  Jury selection went smoothly at the end of which the judge announced that the attorneys decided to use alternative dispute resolution instead of proceeding to trial. 

“That decision closed the trial to the public. The jurors ended up hearing from witnesses and seeing exhibits during an abbreviated, one-day trial and then rendered a non-binding verdict, which is private. Armed with that verdict, the lawyers will enter into mediation later this week to attempt a settlement.”[viii] 

Getting Back to Normal

Over 100,000 trials take place in the United States every year and tens of thousands have been delayed because of COVID-19. “According to the National Center for State Courts, 16 states and the territory of Puerto Rico have ordered virtual hearings in response to the novel coronavirus. . . .”[ix] How do we get back to “normal” and, particularly, how to we conduct jury trials? 

One solution will be tried in June in Montana.  Lincoln County jurors will report to Libby Middle High School’s gym for jury duty. That is the only facility big enough to allow 6’ social distancing.  All participants will be subject to temperature taking, masks will be required, and adequate hand sanitizer will be available.  It will by interesting to see how that goes.[x] 

Necessity, it is said, is often the mother of invention and courts have certainly been creative during this crisis.  Innovations are coming about all over the country, but things thought to be new sometimes have not been.   Forty years ago, an innovative Ohio judge tried over 300 civil cases; an Hawaiian judge found a creative solution to case backlogs; and, a Montana court will be trying something new next month.

As one blogger put it, “If the pandemic persists with a second or third wave, the notion of trial-by-zoom, so inconceivable at the beginning of the year, will not seem so undoable by the end of the year.”[xi]

 

Endnotes:

---

[i] Kanazawa, Sidney, “A modest proposal for video trials,” San Francisco Daily Journal (Ap. 24, 2020), p.1.

[ii] Bermant, Gordon, et al., “Juror Responses to Prerecorded Videotape Trial Presentations in California and Ohio,” Hastings Law Journal, 26:4 (1975).

[iii] Id.

[iv] Id.

[v] Id.

[vi] Supra, n.2

[vii] Supra, n. i

[viii] “First remote jury trial shows potential for widespread use,” the Center, National Center for State Courts (May 20, 2020). 

[ix] Reynolds, Matt, “Could Zoom jury trials become the norm during the coronavirus pandemic?” ABA Journal (May 11, 2020).

[x] O’Brien, Rebecca Davis, “Is Anywhere Safe for a Jury Trial During the Covid-19 Pandemic?  Try a School Gym,” The Wall Street Journal (May 19, 2020).

[xi] Fox, Joel, “Trial by Zoom Jury?” Fox and Hounds Daily (May 26, 2020). (Last visited May 28, 2020).