To try or not to try remotely. As jury trials move online, courts see pros and cons

Credit: Tracy J. Lee for NPR

Cindee Crosby got a summons in the mail calling her for jury duty. So one day, in October 2020, she logged on to Alameda County's jury selection video call. It would be the longest Zoom call of her life: 2 1/2 weeks.

That's how long it took to pick a jury. Crosby watched as one person after another showed up in a small square on screen, answering the same set of questions from attorneys. There were breaks, of course, for meals and sleep, day after day.

Crosby was selected and served. The on-and-off trial by Zoom lasted until spring.

That trial is part of an ad hoc experiment playing out all over the country. In Alameda County, Calif., home to cities such as Oakland and Berkeley, Judge Brad Seligman faced a challenge. Like other court systems, the Superior Court's civil division he supervised faced a huge case backlog caused by the pandemic.

To get cases moving, Alameda County Superior Court decided to hold civil jury trials virtually, starting with selecting a jury. Seligman had lots of concerns.

"I was extremely skeptical about whether it could work, and my concerns going in were, would any juror even show up," Seligman says. Showing up was just one possible problem. Other judges and lawyers worried about spotty internet access, computer availability and the potential for wandering attention spans.

NPR talked to nearly two dozen judges, attorneys and jurors who have participated in online jury trials to see how things are going. After nearly 18 months, some evidence is in but the verdict is still out. Some fears were realized, but there were unexpected benefits as well, including higher participation rate among people called to serve.

"I don't think it's inherently worse or better," Seligman says. His civil court has conducted 20 remote jury trials since it adopted the new approach. "My conclusion is this is a legitimate way of going forward, and it's considerably better than the alternative, which would be no trial at all."

During waves of the pandemic, courts were having to cancel trials altogether.

Now, as the latest wave is receding, one question is whether court systems can operate the way they used to, or whether something valuable will be lost if virtual jury trials are abandoned.

The pandemic forces courts to get creative

Judges postponed trials when COVID-19 cases surged. Trial courts in Texas used to process more than 10,000 jury trials a year but watched that number plummet to just over 200 in 2020. To address the crunch, court systems had to get creative.

Some took over music halls and sports stadiums so they could spread out to hold court proceedings that would accommodate pandemic safety rules. Others, like the Alameda County Superior Court, turned to the virtual world.

Virtual court proceedings aren't new. Australia, Canada, China, Denmark, the U.K. and Singapore had been running online courts pre-pandemic. American courts have handed out protective orders online, mitigated traffic violations via text, and resolved small claims via videoconferencing. When it comes to jury trials in the United States, however, making them even partially remote has been a novel idea.

Since the pandemic, jury trials on video have popped up in states including Arizona, California, Florida, Georgia, New Jersey, Oregon, Texas and Washington.

Juror shopping looks different

Cindee Crosby's journey as a juror in Alameda didn't end after she sat through those 2 1/2 weeks of video jury selection.

Next, came the civil trial itself. Sometimes the proceedings had to break because someone fell sick or because people went on holidays or because someone lost their internet connection.

Even without the interruptions, the case was complicated. A man with mesothelioma — a lung cancer that's closely linked to asbestos exposure — sued asbestos pipe manufacturers, saying that they failed to flag the risk of asbestos exposure to family members of pipe workers.

"There are points where we had to listen to long bouts of testimony," Crosby says. "That's watching and listening to videos of people just talking about — for me, at least — [what] was really dense subject matter."

Crosby says staring at a screen for hours drained her.

"Zoom fatigue is real," she says.

"Here I am, kind of like sitting for a training day. What's stopping you from opening another tab and having the court case playing in the background while you're doing something else, like shopping?"

The remote trial lasted more than four months. Crosby was the juror representative, and when arguments ended and deliberation started, she went into the courthouse every day to join a video conference with the other jurors. Ultimately, she was proud of the jurors' deliberation and decision.

"Everybody chose to really be present because of the subject of the case," Crosby says. "Everybody felt like they wanted to bring as much justice as they could for the person who needed it."

"Juror No. 6, I need you to focus"

Crosby's experience speaks to a concern that many attorneys share: Trials aren't always the most scintillating experience, and being remote opens up the possibility of juror distraction.

Lawyers say they have caught jurors driving, watching YouTube, and even asking for a break — mid-testimony — to tend to a dog.

"I spend my time zooming in and making sure and watching the jurors' eyes," says Matthew Williams, a trial judge at King County Superior Court in Washington state. The court has conducted about 325 remote jury selections for criminal and civil cases in 2021 and the first months of this year. More than 90 of those cases continued as remote civil jury trials.

"Early in the process, I will call out one or two jurors who I think may not be completely engaged in the process and specifically call them out, say 'Juror No. 6, I need you to focus on this process.' And I'll tell you, once I do that one or two times, it doesn't happen again. But I'm still scanning their eyes, making sure that they're focused on what is going on in front of them."

King County also tries to help jurors cope with Zoom fatigue, for example by limiting sessions to three hours at a time or encouraging jurors to get up and move.

The lawyers in these cases don't just want jurors to pay attention, they want them to pay attention to their side of the case.

Ricky Raven runs Allstate Insurance Co.'s litigation department and tried an early remote jury case in Alameda County. He misses the nonverbal cues that can be essential in jury selections. He used to look for the newspapers that jurors brought to the courthouse during voir dire to gain possible insight into whether they leaned conservative or liberal.

"It is an imprecise science. No question," Raven says. "But I think that as a trial lawyer, you have to trust your instincts in terms of ... whether [potential jurors] would be open to giving your evidence a fair hearing."

He can't do that as well during virtual jury selection. During that early trial, which he eventually won, he missed watching the jurors' body language to see if they were following his arguments. So he assigned two other team members to watch the screens full time.

Levi Bendele, a partner at Seattle-based law firm Holt Woods & Scisciani, says it's tough to judge how jurors are reacting to his arguments. "Is their head turned towards you or away from you? A lot of jury members, you know, depending on the location of the camera, you never even get a square look at their face," he says. "As an attorney, I find that a little unnerving. It's almost like you're shooting in the dark."

James Mendel, another partner at Holt Woods & Scisciani, is trying new ways to connect with jurors. "After my first [virtual trial], I got this plant," he said over a video interview with NPR, pointing at the dragon trees on the bookshelf behind him.

"Now you get to see jurors in their natural environment," he said. "So many jurors have plants. I figured I'd get a plant so that jurors would think I'm, you know, plant-friendly. Whereas, you know, [before] doing this by Zoom, you wouldn't have that little insight into their house. ... I don't know if that helps me or not. I generally wouldn't have a plant, but now I do."

A jury of your peers

Remote jury proceedings are raising questions about who serves on a jury, how they serve and how much of a burden that service is to different segments of the population.

Before the pandemic, some of the biggest obstacles to service included getting time off work or finding transportation to a courthouse. "The turnout rate in the beginning is the critical point," says Seligman, the judge in Alameda County. If not enough people respond, the court can't start the jury selection. In Alameda, only about 1 out of 5 citizens respond to jury summonses.

Remote jury proceedings help alleviate those problems. The anecdotal experience of judges in the jurisdictions NPR interviewed suggests that remote jury proceedings in the U.S. have increased participation, boosted efficiency and reduced travel expenses.

Since Alameda made jury selection remote, the county's civil court hasn't run out of jurors, Seligman says.

Your internet connection is unstable

If the obstacle to jury service before the pandemic was the hassle of getting into a physical courtroom, the challenge now is making sure everyone has the technology necessary to get into the virtual courtroom.

Most counties trying these experiments so far have been more urban: King County is home to Seattle, Alameda County is home to Oakland and Travis County is home to Austin.

But not all parts of these counties are big cities. A study by King County found that while most of the county has broadband available, many rural parts of the county do not. Poorer households also are less likely to have adequate internet access, if at all.

Judges and jurors in these jurisdictions told stories of how internet access problems complicated trials. Some jurors were excused for not having access. Others in rural areas, and in some cities, lost connectivity. A trial in Alameda County halted for days when one juror lost internet connection because the utility company was doing repairs in the neighborhood.

To address those concerns, attorneys have delivered tablets to jurors in Alameda. (Both parties paid for them.) Other court systems also have delivered tablets, cellphone minutes and made internet hot spots available to jurors who didn't have adequate access.

Why supporters think remote trials are worth keeping

Backers of remote trials — including judges, consultants and academics – argue that remote options improve participation overall, especially for potential jurors who don't have the time to spend days in a courtroom or don't have a convenient way to get there.

Judges at King County say they're also seeing more diverse jury pools.

This is not only important for the public's perception of justice, says Paula Hannaford-Agor, but juries with varying backgrounds bring a wider range of experience to the jury pool. She is the director of the Center for Jury Studies at the National Center for State Courts.

"They deliberate longer, their deliberations are more thorough. The jurors tend to be more satisfied with their deliberations, that they really feel like they, you know, they've done a good job."

While the promise of diversity is intriguing, judges in other counties told NPR they haven't noticed a difference in their jury pools. These courts concluded between one and 15 jury trials as of late 2021. Courts either don't collect or don't compile demographic statistics to enable an analysis.

"I wish I had better data to look at who actually gets impaneled. We're hoping to get some of that," says Hannaford-Agor. There are anecdotes though. "One of the first cases out of Texas, the jury foreperson was actually an elderly Hispanic gentleman who was working from a court-supported iPad that they lent him," she says, "and he ended up being the foreperson on the jury."

Without these technologies, she says, "he might not have even come to the courthouse."

A good idea whose time has gone?

Now that judges, lawyers and litigants have adapted to remote jury trials, they're also debating whether courts should keep doing them once the pandemic finally ends.

Most judges and lawyers expect in-person trials to resume when the threat of public health concerns eventually subsides. In Arizona, for example, a 2021 survey shows only 5% of court officials want to keep remote jury trials beyond the pandemic. Nearly a quarter would support remote jury selection.

Some states are planning to continue the practice. A new law in California allows litigants to attend civil trials on video, rather than in person. King County Superior Court tells NPR that it hopes to keep running remote jury trials and has proposed a rule to the Washington State Supreme Court that could allow remote jury selection to continue for both criminal and civil trials throughout the state.

Mounting caseloads might drive decisions even when public health restrictions lift, says Hannaford-Agor. She notes that remote jury selection seems to allow courts to ramp up volume, and remote trials can expedite simple cases.

"If they want to do a remote trial ... we can schedule that one in three weeks. But if you want your in-person ... your trial is not coming, probably for another year and a half to three years," Hannaford-Agor says.

When the time is right, Seligman would welcome bringing in-person interaction back to the court as soon as possible because he thinks something is lost when trials are remote.

"When I became a judge, one of the things I loved about being a judge is I saw people all the time. I met the jurors at the end of every trial. I would go shake their hands. Right now, it's a very remote — literally remote-process for me," he says.

"We're all people — people people, and we like to do that. So I would expect if we ever get back to the old normal or the new normal, you'll see more live proceedings."

The question is which people end up deliberating in the jury room. The anecdotal evidence so far suggests that more people show up to be selected for a remote jury than show up in person, meaning there are more potential jurors to choose from.

"I've had jurors log in on their phones from their break room at Amazon, from the coffee shop where they worked," says Matthew Williams, the judge in King County. "There is no question in my mind that the economic diversity, the social diversity, the ethnic diversity, the racial diversity is significantly higher."

Courts in Washington state are participating in a yearlong study on whether juries in remote trials are more diverse and expect results next year.

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