As it becomes more apparent that the coronavirus is here to stay – at least for the foreseeable future – the pandemic raises questions about court proceedings and jury trials. Will defendants awaiting trial remain stuck in limbo? What about those in prison, unable to make bail? How do they enforce their right to a speedy trial at a time when courts around the country are shut down? Some courts have experimented with court proceedings via Zoom, the popular videoconferencing software.
Texas recently began its first Zoom jury trial, although the case was civil, not criminal, and the verdict won’t be binding. A Florida court considered a child abduction case under the Hague Convention via videoconferencing – a more common format in the international context. With criminal proceedings, however, it’s not so straightforward.
Defendants have a multitude of constitutional rights that could be compromised by Zoom proceedings. Chief among them is the right to confront witnesses. The Sixth Amendment guarantees defendants the ability to question and cross-examine opposing witnesses. Decades of Supreme Court decisions have fine-tuned that right, and it’s one of the most important trial rights for those facing criminal charges.
Is confronting a witness on Zoom the same as in person? Arguably, no. Witness credibility often plays a key role in defense strategies and jury verdicts. It’s difficult to assess that credibility when you can’t look a person in the face. Viewing someone on a screen simply isn’t the same. Even with high-definition video, you don’t get the same level of detail, nor the instant responses and subtle changes in expression that you’d perceive in person.
In fact, one study found that judges set higher bail for defendants when the hearings were conducted via closed-circuit television rather than in person.
The benefit of in-person proceedings
There’s something about the physicality of an in-person trial that can’t be replaced with Zoom. The visual environment of a courtroom is a silent player in every court proceeding. It’s why courtrooms generally don’t have windows, and why they usually have stately, official-looking décor. They lend an air of formality and importance to every proceeding. Courtrooms help level the playing field. No matter their economic standing, defendants appear in dignified surroundings, providing jurors with a constant visual reminder that a human being’s future is at stake.
In Zoom, those surroundings are lost. Yes, participants can still dress in formal attire and use digitized courtroom backgrounds, but the impact isn’t the same.
While the bulk of the evidence in most criminal trials isn’t physical – witness testimony, for example – some cases rely heavily on physical evidence. Documents can be scanned, but what about items of clothing, weapons and other items that can’t be digitized? Jurors may need to handle the evidence and see it up close with their own eyes. That’s not possible with videoconferencing.
Effective assistance of counsel
Another critical trial right is effective assistance of counsel – that is, the right to be represented by a competent attorney during critical phases of criminal proceedings. But how effective can that representation be if the attorney and defendant aren’t in the same location? At in-person proceedings, the defendant sits next to their attorney, close enough to whisper questions and raise concerns. On Zoom, the ability to communicate privately is much more limited.
Criminal defendants have the right to a fair trial by an impartial jury. Much goes into selecting an impartial jury – and keeping them impartial. In the courtroom, staff can keep a close eye on jurors, prohibiting phone use and ensuring that they aren’t multitasking. On Zoom, they have little ability to supervise. A juror could easily browse their phone or watch TV while still appearing to pay attention. Other family members could be listening in and swaying the juror’s opinion off-screen. And what’s to stop jurors from conducting their own research, looking at news reports, or scouring the internet?
Deliberations, too, pose numerous problems. Jury deliberations are supposed to be conducted in strict privacy, away from phones, prying eyes, and outside influence. A video chat is a far cry from a closed room with a bailiff posted outside the door.
Technology issues also abound. While videoconferencing technology has come a long way, it’s not without problems. What if the internet cuts out during critical testimony? Would that be grounds for a mistrial?
Recordings and transcripts are also central to any trial – and to the success of future appeals. What if there’s a glitch and recordings get deleted?
Given the constitutional issues, it seems doubtful that any court in America would move to online criminal proceedings for anything but the most inconsequential of hearings. Of course, defendants can always waive their constitutional rights. They could, upon being informed of the risks, consent to trial by Zoom. But it’s tough to imagine a scenario where that would be a smart decision.