The Polarizing Impact of Virtual Jury Trials

 

            Since the rise of virtual jury trials in 2021, there have been many discussions as to the merits and challenges of that remote-based trial system. Accordingly, virtual jury trials have been thrust into the forefront of judicial scholarship over the last year. And for trial attorneys, that means “virtually” figuring out their jurors from start to finish—an idea that, while novel, comes with its own unique set of problems.

Overall Issues with Virtual Trials

            It is certainly no secret that the Covid-19 pandemic has greatly impacted courts throughout the United States. And with the rise of the Omicron variant, courts have been forced to once again stare down the reality of using virtual jury trials, an option that has already created a new set of problems for the courts and attorneys alike.

            For example, introductory questions during voir dire have included whether a potential jury has WiFi or access to a tablet or computer. Lower income individuals answer “no” to those questions, and they are therefore stricken from jury selection. As a result, attorneys have complained of virtual jury trials lacking the necessary socioeconomic diversity.

            What’s more, virtual trials can lead to various distractions due to the conduct of the parties involved, which could negatively affect the flow of the trial or the messages being presented. There are also concerns regarding a juror’s overall attention to the trial when they are seated in their own home, with all of their own available distractions.

            And while social science has maintained that there is no difference between the overall capabilities of a juror when acting virtually versus in-person, there still remain questions as to other concerns when a jury is not faced with an in-person trial. Those concerns, which are still being studied, have presented problems with jurors’ being “desensitized” by the virtual aspect of the trial.

            A study published in the Northwestern Law Review Journal shows that there is a correlation between a juror’s feelings toward parties to litigation and whether that juror is actually in the same room with them. That article specifically deals with the issues of immigration and how jurors are more likely to favor deportation when they are acting virtually. The theory behind this is that the virtual aspect of these types of trials “dehumanizes” the litigants because they are not in the same room as the jurors, and that theory can certainly be extrapolated to trials outside the realm of immigration.

Jurors v. Attorneys: Contrasting Opinions of the Virtual Process

            When asked about their experiences with virtual trials, jurors generally explained that there was no issue with watching the trial on their computers, and in some cases, the jurors claimed to have preferred that scenario. But those results are skewed by what was mentioned previously: the only jurors that are participating are the ones with the technological capacity to do so.

            Contrast the juror satisfaction with the attorneys’ complaints that they can no longer “connect” with the jury throughout the process. Eye contact, reading body language, and other tactics commonly used by trial litigators have become quite challenging. As a result, the lawyers are going through the process of virtual trials relatively blind. That is to say, the attorneys remain ignorant to the jury’s visible responses. It is clear, then, that attorneys have much to learn about maximizing this new virtual process, which it appears, is here to stay.

What’s Next?

            The problems that courts, jurors, and attorneys face with virtual trials are far from being solved; however, there remain many benefits to the process overall. Because of the benefits surrounding virtual trials—benefits aside from speeding up dockets and allowing for a safer trial process—it seems as though attorneys and jurors need to dig in and get used to this newer process.

            For attorneys, this means getting used to taking out the elements of reading body language and using the theatrics of the courtroom to their advantage. But while those may marginally hinder an experienced litigator, time and repetition with the new technology can provide a useful tool to simply adapt those skills.

            For jurors, the process opens up doors for showing up for jury selection at a higher rate, which provides a much more serviceable jury pool. However, that must be contrasted with the limited availability to technology for lower income jury members. In the end, jurors may benefit from not having to find transportation and fight the crowds of the courtroom, but they will likely find themselves having to fight distractions and potential technological glitches.

Conclusion

            Virtual jury service may be ideal for those that want to wear sweatpants and watch trial from their home, but the process of a trial currently creates many obstacles to the full efficiency that virtual jury trials may eventually have. From socioeconomic factors precluding service from various jurors to unfamiliarity with the technology required for the trial to move smoothly, jurors and attorneys have a long way to go before these growing pains begin to relent.