Virtual Voir Dire

 The COVID-19 pandemic disrupted life as we knew it. The justice system was affected in numerous ways—delayed trials, virtual hearings, online document filing, and even virtual voir dire. In the summer of 2021, a Houston court hosted a virtual jury selection. The process was described as a circus. Illustrated by this Houston trial were the difficulties lawyers may face if the judicial system continues to push toward a more virtual jury selection process. Law360 reported that prospective jurors were sleeping, driving cars, disappearing off camera, applying makeup, playing video games while wearing a gaming headset, preparing and eating meals, watching TV, playing with pets, lying in bed and on a couch, drinking alcohol and vaping on Zoom during jury selection. The blatant lack of decorum in a judicial process was shocking. One lawyer called the spectacle “an insult to the entire justice system.” However, other practitioners have suggested some helpful resolution to bring decorum to the virtual voir dire process.

Navigating Virtual Voir Dire

Practitioners that witnessed the debacle that unfolded in the Houston trial have three suggestions to combat the issues seen in virtual jury selection. First, prospective jurors should be required to go through a check-in procedure. For example, prospective jurors should be sent to a separate virtual room prior to entering the jury selection room where a clerk or technical bailiff will virtually check the prospective juror in (and eventually out). During this check-in, the clerk or bailiff will evaluate the prospective juror’s circumstances, assist in eliminating distractions, and address any other issues with the prospective jurors presentation on Zoom. Second, during the check-in process, any technical issue should be addressed. This includes issues with connectivity, computer position, and knowledge of Zoom controls. The clerk or bailiff will test the sufficiency of the internet speed, camera, and microphone as well as suggest a more appropriate computer location, backdrop, and lighting set-up, if needed. If at any time during the check-in procedures an issue arises that cannot be resolved then and there, the potential juror will be sent away to correct the issue and then directed to come back through the check-in room before entering the jury selection room. Third, practitioners suggest that the court set expectations of decorum. Expectation guidelines should be given to prospective jurors before, during, and after the check-in process. Sample guidelines should include:

•          You must stay on camera when not on break.
•           Do not have others in the room.
•           Your attention should be directed at the jury selection process.

Virtual Jury Selection Can Provide Some Benefits

The virtual world does have some perks. Virtual jury selection may increase the attendance numbers of potential jurors, allow the potential juror to be more comfortable (and hopefully more authentic) during the interview portion of jury selection, and provide a work around when threats like the COVID-19 pandemic restrict the ability to hold in-person trials. Lawyers should not fear virtual voir dire, but should be made aware of the difficulties associated with virtually selecting a jury and how to help eliminate those issues.