(CN) — As the Covid-19 pandemic prevents people from gathering in courtrooms, courts throughout the United States are exploring new ways of preserving the right to trial by jury.
Texas just held its first virtual civil jury “trial” this week in Collin County, a one-day affair where jurors heard arguments over video conference and rendered a non-binding verdict.
The case involved a routine contract dispute over insurance coverage and the parties were able to mediate a resolution in a closed session afterward, but the online jury trial has been viewed as a bellwether for the digital courthouse.
“I think this is one of those races that is not going to be won by the swift. I think this is a time to be patient, to be deliberate in what you’re doing. There are ways across the nation that are being experimented with right now,” said Robert Clifford, a commercial litigation attorney with Clifford Law Offices in Chicago, speaking as part of a short panel discussion hosted by Berkeley Law School’s Civil Justice Research Initiative.
Montana, for example, recently repurposed a middle school gym to safely assemble prospective jurors in a domestic assault trial, according to media reports.
“If we do move ahead with jury trials, and we lose a lot of if we don’t, we’re going to have to be creative about hybrids,” said Valerie Hans, law professor at Cornell University and an expert on the jury system. “What parts of the jury trial are absolutely critical to be held in person with all that involves, and what parts can we do other ways — whether online or through questionnaires or other sorts of mechanisms?”
Hans said a trial judge in Seattle was able to find a group of jurors willing to hear a civil case in mid-March.
“He tried to do the best he could to preserve physical distancing as much as possible, which included clearing the courtroom and allowing the jury to use the courtroom as their deliberation room,” she said. “That was creative on his part, making the best of a very difficult situation.”
U.S. District Judge William Alsup in San Francisco was gearing up to resume a criminal trial in early June in the case of Yevgeniy Nikulin, a Russian national accused of hacking into LinkedIn, DropBox, and Formspring networks in 2012. The jury heard two days of testimony before being sent home indefinitely when the Covid-19 pandemic forced the courthouse to close.
At a status conference in April where prosecutors and defense attorneys discussed whether the trial could continue, Alsup said he was considering spacing jurors throughout the courtroom and setting up a video feed for the public and press. Defense attorney Valerie Nechay suggested clear face shields for jurors and witnesses “which would allow individuals to see each other’s faces but still have a layer of protection.”
“I thought about one of those myself,” Alsup said. “I’ve used those in workshops myself and you get used to it after a while.”
Tentative plans to restart the trial on June 8 were disrupted on Thursday, however, when the Northern District’s chief judge issued a general order delaying all criminal trials until after June 30, suggesting that not all courts are ready to resume full operations.
U.S. District Judge Richard Seeborg, also in the Northern District, sent a letter this week urging parties with pending civil cases to think about settling. “At this juncture, no assurances can be given as to when civil trials can be resumed, and if so, whether a further suspension due to public health developments will be necessary,” he wrote.
Clifford said he envisions a greater shift toward mediation, especially since he does not see his local court holding civil jury trials at all this year.
“We are in trouble with this. In the Circuit Court of Cook County in Chicago, I’m predicting we will not have a civil jury trial in all of 2020. They can’t even impanel a grand jury right now on the criminal side,” Clifford said. “What’s going to happen I think, in the tort law world and elsewhere, is that people are going to say, ‘Look, you’re not going to get a trial in all of 2020, maybe you won’t even get one in 2021; tell you what — why don’t we settle now but you’re going to have to take a bit of haircut on what the dispute is valued at.’ That’s one of the unintended consequences and I think that it will in fact occur.”
Clifford said the visual medium has been great for somethings like mediation, which has helped courts tackle massive civil backlogs.
In San Diego, local attorneys banded together to form Resolve Law San Diego, a volunteer-run program through which civil litigants can stipulate to have their cases heard pro bono before a panel of retired judges and other neutral third parties by phone or video conference.
Jury trials are another matter. “We’ve been doing a bang-up job with mediations,” Clifford said. “But for confronting a witness, for cross-examining a defendant in a civil case, malpractice or otherwise, I don’t think I like this virtual idea so much.”
Clifford said virtual jury trials also require access to computers and Wi-Fi connections, which may foreclose the broader community from serving on juries.
“You’re not going to get the broad base of representation in the jury pool itself if it’s going to take a socioeconomic level of being equipped with a computer and Wi-Fi to even participate so you can hear the virtual witnesses and virtual opening statements. There’s some severe limitations we’re confronted with right now,” he said.
But as Covid-19 has helped popularize video bench trials and online mediation, we shouldn’t expect jury trials to disappear. “Trial by jury is an important democratic institution. Even in a situation where jury trials have been declining, still juries have solved the most pressing civil and criminal matters.” Hans said.
Research has shown, she added, that that it can be very gratifying for jurors to deliberate on a case that has an effect on their communities, and that people who serve on juries are more likely to vote and participate in other forms of civic engagement.
“They often come away with a sense of very deep satisfaction and recognition that they have done something for the community, and they also come away with a more positive view about law and the courts,” Hans said. “It’s an institution that helps to bind us together and it’s poignant we are losing that at the moment when many of us are separated and isolated around the country.”