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.

           

 Blindly Serving:  The Tricky Question of Choosing Blind Jurors

    In Tennessee v. Lane, the Supreme Court unequivocally held "that states have a duty under Title II of the ADA to ensure that individuals with disabilities have access to the courts." The ADA requires that a court make all reasonable accommodations to ensure that any juror with a disability is able to serve on a jury. Since the Sixth Amendment provides for a jury of a person's peers, the inclusion of everyone with the capability to understand and judge evidence must be facilitated by all reasonable means.

  

  Still, there is a natural trepidation on the part of lawyers to have a jury member who can't view the evidence in the same ways. With blind jurors, they cannot view nervousness in the defendant, mannerisms from the witness, or facial expressions from the attorney themselves. At first blush, it would be easy to discount a blind juror on account of these concerns. But research and advocacy has determined that blind jurors may be more beneficial jury members.

   "Excluding blind individuals deprives both the defendant and the members of the jury of unique perspectives and life experiences that enhance deliberations and ensure a just verdict is reached." When it comes to the introduction of visual evidence, any attorney would immediately worry about it not having the effect wanted when having a blind juror. But, this would be short-sighted (pun unintended): almost every piece of evidence is introduced through a testifying witness. In a recent case, a blind juror served on a panel for an assault case. While unable to view two photographs depicting the gruesome injuries, the juror listened to descriptions of medical treatment and was provided with medical records, allowing a just conclusion.

    

    A court is required to use reasonable means to ensure a blind juror is able to thrive in a court environment and look at evidence objectively. One such option is to use a trained reader or describer who functions like an interpreter. A trained reader is treated as  "neutral figures and the court 'assume[s] that the jury can be trusted to follow...instructions' regarding the expected participation of such individuals." Even beyond jury service, Justice Richard Bernstein of the Michigan Supreme Court uses a professional reader for all arguments and decisions. 

    Further, what a blind person lacks in visual terms, they can make up for with other cues. Without visual stimuli, they are more able to focus on verbal testimony including stutters, swallowing, voice quavering, or inaudibility. The subtle differences of tone could very easily not perk an abled persons attention, but a blind juror would use it as another piece of evidence to file away.

Placing Fido on the Stand: Do facility dogs for testifying witnesses skew jurors?

Courtrooms can be intimidating, especially for those called to testify. Parties can request trial accommodations for these individuals in an effort to make them more comfortable. Recently, focus has shifted towards a more controversial accommodation: providing witnesses with support dogs on the stand. While it sounds as if this could potentially skew juries, studies show that their use has little to no impact on a jury.

Use of support dogs can help child and other vulnerable witnesses feel more comfortable while testifying, reducing stress levels and resulting in more accurate testimony. Many courtrooms allow the use of “facility dogs,” or certified assistance dogs, to assist victims and witnesses while they testify. While the benefits of having facility dogs are promising, some argue that these furry friends have the potential to skew juries. 

A major concern of using facility dogs is that they’re unfairly prejudicial towards the opposing party and can lead to juror bias. Some worry that the visual appearance of a dog would give jurors a more favorable impression of the witness or imply that the victim-witness was more severely harmed by the incident. Contrarily, some worry that a juror’s negative feelings towards dogs could transfer onto the witness or it could otherwise distract the jury.

Traditionally, the use of facility dogs has been narrowly applied to child victims and witnesses. For example, Arizona has enacted legislation allowing child victims to use facility dogs while testifying. In order to ensure that it “does not influence the jury,” the statute requires courts to instruct the jury on the facility dog’s role and inform them that it is a trained animal. Other states like Florida have expanded their use to include victims/witnesses who were children at the time of any sexual abuse, or those with intellectual disabilities. 

While most judges support the use of facility dogs, minimizing potential juror bias seems to be at the forefront of their minds. Many courts take preventative steps to minimize juror bias such as keeping the dog out of sight, only allowing professionally trained dogs, and providing limiting jury instructions. 

Recently, the Pennsylvania Supreme Court allowed the use of a facility dog for a minor victim after finding that the trial court took adequate steps to mitigate any juror bias. In Commonwealth v. Purnell (259 A.3d 974), the court implemented a “balancing test” when deciding whether to allow the use of a facility dog, weighing the benefits to the witness against any potential prejudice to the defendant. While the lower court allowed the use of the facility dog because it would help the witness testify more truthfully, the court also considered the defendant’s interests and implemented the following requirements: 

(1) the court had to address the dog as a “service dog” to lessen any sympathy for the witness from the jury; 

(2) the dog had to enter and exit the courtroom outside of the jury’s presence and remain hidden during the testimony; and 

(3) the court had to provide limiting jury instructions.

While courts continue to take steps to mitigate juror bias towards children using facility dogs, evidence supporting their use for adults is more scarce. Until then, Fido will have a tougher time earning his spot on the stand next to adult witnesses.

The Gen-Z Juror: Accommodating Generational Changes in the Courtroom

Changing Times

 With a growing number of young people entering the jury pool every day in America, it is more important than ever that attorneys understand how the younger generations process information and learn. Each generation of jurors holds different values and feelings towards certain issues from the next. In order to achieve the most fair outcome possible in a jury trial, attorneys need to be aware of these differences so they can select and address their jury to the best of their ability. Below are several methods attorneys can implement in the courtroom when faced with the Gen-Z juror. 

Be Brief

Members of Gen-Z have grown up with the internet virtually at their fingertips. They have never lived in a time where immediate access to information wasn't in their back pocket. Because of the constant, rapid fire inundation of information that Gen-Z individuals experience every day, they have become accustomed to consuming large amounts of information, and making sense of that information, in a very short amount of time. Attorneys need to take this into account when they address younger jurors during trial. Whereas older people tend to prefer a storytelling method of fact presentation, younger people will quickly lose interest in a redundant and lengthy recitation of facts. Be concise and get to the point.

Be Honest

Younger people have a much higher level of cynicism as well as a much higher distrust of authority than their older counterparts. When addressing them in the courtroom, an emotional appeal is likely not going to work. If they feel as if you are trying to make them feel a certain way or are hiding the truth in some capacity, you are more likely to lose them. Additionally, due to their propensity to question authority, they are not as likely to put much stock into the testimony of an expert witness.

Be Tech-Savvy

Gen-Z grew up with technology and the internet being a part of their every day lives, and as such are much more comfortable receiving information through graphs or digitally composed images, rather than orally. In fact, they have come to expect and prefer this method of information presentation and will have a much greater understanding of the facts of the case if they can visualize them. 

    While it is impossible to please every juror all at one time,  it is important that attorneys recognize that younger jurors are fundamentally different from older generations in many ways. If attorneys can take these differences into account in the courtroom, then everyone involved will have a greater understanding and appreciation for the justice system, and our courts will be able to achieve justice for all the way they were meant to.

Sources:

Ervin Gonzalez, Succeeding with Millennial Jurors Requires Understanding of Their Generational Traits, (2016), http://www.ervingonzalez.com/succeeding-with-millennial-jurors-requires-understanding-of-their-generational-traits/.

Harry Plotkin, The Next Generation of Jurors, DAILY J. (Nov. 10, 2021), https://www.dailyjournal.com/mcle/1082-the-next-generation-of-jurors#:~:text=Generation%20of%20Jurors-,Harry%20Plotkin,best%20trial%20lawyers%20in%20California.

High Profile or High Pressure Cases?

Do Jurors Treat High Profile Cases Differently Than Ordinary Cases? 

        I think it is safe to say that, in most cases, the answer is "yes." But what changes? In my perspective, there are two main elements that change during a high-profile trial: pressure on the jurors and media coverage. 

PRESSURE

        In high profile cases, jurors feel pressure for many reasons. Jurors face both internal and external pressures when deciding even a simple case, let alone one involving a celebrity or well-known figure. 

        Internally, jurors fight with their own thoughts, beliefs, experiences, and opinions when reviewing the facts to determine the defendant's guilt. For some, the internal battle is the hardest, to ensure they are making the right decision not only for the defendant and victim(s), but for their own peace of mind. Consider the following quote by a juror who served on a capital murder case: 

"Afterwards, I told people I was on a jury trial, and my white friends congratulated me on getting a conviction. 'I hope the guy fries -- he deserves it if goes out and commits murder' was one comment. 

This all made me very angry. We were not out for vengeance. We saw a sad situation that got out of control, and no good outcomes. I realized that there is an entire population of people that we live with and among, and we have entirely different viewpoints about the criminal justice system. I saw that there is tremendous pain there, and no solutions."

        Another aspect of internal pressure stems from the court. The object of the court system is to declare justice, which is why there are many rules concerning the procedure, evidence, jury instructions, etc. Jurors inherently feel pressure by the court to follow the rules, consider the (admissible) evidence, and make the best decision based on the evidence and facts presented. In trying to achieve the court's objective, jurors feel more pressure to return the most reasonable verdict. It is easy to understand why the pressure from the court would be greater in cases with high profile parties - more reason to pay attention, follow the rules, and analyze the evidence presented. 

MEDIA

        Another aspect that tends to influence jury members is the media. A rather obvious statement is that media tends to be greater when a party or victim is well-known to the public. When a defendant or victim is high profile, media coverage never ceases. There are numerous studies about how media impacts juries and the fairness of trials, but it is also fair to conclude that media impacts the way jurors approach the case altogether - with both internal and external elements as well. 

        An internal aspect of the media could be as simple as a juror thinking "what would the public say about this?" looming with every witness testimony, piece of evidence, and objection within the trial. 

        Externally, the jury could be concerned about what the public is seeing outside of the courtroom. Many jurors could think "what evidence and information is the public seeing on TV that we are not allowed to factor into our decision?" 

        Media has the ability to completely influence and change the way a juror approaches, thinks about, and analyzes a case. If any media is involved (or even the thought of media is contemplated in the juror's mind), the fairness of a trial becomes unclear.  

Although some elements can fit easily into the internal or external categories, there are many that strike a balance between both. In cases where a party of victim are famous in some way or high-profile, it is nearly impossible to ensure that these pressures do not consume the jury, especially with media and technology growing larger and more efficient by the day. But understanding how these elements affect a juror's mindset before, during, and after the trial are pivotal in assessing how effective our justice system is. 

Trial Juries, No. 12

A trial jury is a select number of individuals that is chosen to represent the diverse views of an unbiased community. Jurors serve a very important function within the justice system. The jury must determine whether a defendant committed the crime charged in a criminal case or whether the defendant injured the plaintiff in a civil case. Historically, juries consisted of twelve people. However, today the norm is six-to-twelve people.

Where did the number twelve come from? And why did we stray form it?

The number twelve is actually linked to the biblical notions of Jesus and his Twelve Apostles, similar to a judge and his or her twelve jurors. The use of twelve jurors was the common practice throughout six centuries of world history. The United States followed history and tradition and unquestionably stood by the use of twelve person juries in all jury trials—federal and state, criminal and civil—up into 1970 when this practice was challenged in Williams v. Florida. In Williams, the Supreme Court held that a six-person, state court, criminal jury was constitutional. The Court found that twelve person juries were a “historical accident” and “unnecessary to effect the purposes of the jury system.” Thus, the Court held that smaller juries that provide the same function as twelve-person juries are constitutional. Social scientists largely disagree with this opinion for numerous reasons.

So, what size jury ensures proper deliberation?

The astounding answer is twelve. Studies show that smaller juries do not provide the same function as twelve-person juries. For starters, smaller juries are less representative of the community. These juries are less likely to include members of racial minorities. The decreased diversity and inaccurate community representation negatively impacts jury deliberations greatly. This is because a full range of community perspectives cannot be achieved in deliberations with smaller juries. Further, smaller juries lead to less predictable outcomes. The predictability of larger juries is rooted in their ability to recall the evidence more accurately, thus allowing the jury to rely more on the probative evidence derived from the trial rather than conclusory statements. In contrast, the unpredictability of smaller juries results from fewer viewpoints impacting the group dynamic. This leads to a lower quality of jury deliberations. For example, within smaller juries, a single juror has greater weight to pull the other jurors toward a more outlier point of view causing unpredictability.

Very few studies over the last 50 years show favorable data for smaller juries. In fact, there is contradictory findings about the cost-effectiveness of smaller juries. Cost seems to be the main drive behind upsetting the traditional twelve-person jury. Many social scientists would agree, the issues that some courts are trying to address, mainly cost and efficiency of jury trials, are not solved by adjusting jury size, but with positively influencing the public’s perception of jury duty.

For more detailed discussions of the impact of jury size on the justice system, please see these fascinating studies here and here.

One Law Professor’s Brush with Dallas County Voir Dire

Peremptory Challenges: Dead or Alive?

Jury selection: it is not a matter of getting selected. Rather, it is a matter of de-selection. In Arizona, de-selecting potential jurors from the jury pool has just become more challenging as it becomes the first state to put an end to peremptory strikes in jury selection. 

Historically, there were two ways of de-selecting potential jurors in Arizona: challenges for cause and peremptory challenges. Challenges for cause aim to disqualify potential jurors for reasons to believe that the individual cannot be fair and unbiased or are just simply incapable of serving on a jury. On the other hand, peremptory challenges are used to dismiss potential jurors without stating a cause. Evidently, challenges for cause provide more concrete grounds as to de-selection of a potential juror, whereas peremptory challenges are made on more of a “gut feeling”/intuition, which often times was based on stereotypes and unconscious forms of bias. Thus, to prevent discrimination in jury selection, the United States Supreme Court created what is known as the Batson challenge. However, the American Bar Association (ABA) has noted that the Batson challenge has “done so little to stop discrimination in the use of peremptory strikes” because attorney’s can overcome Batson challenge by providing any race-neutral reason for the challenge (e.g., juror twitched when she answered, juror did not seem intelligent enough to understand case, etc.), which is precisely why peremptory challenges are such a hot legal issue. In fact, a study in North Carolina of death penalty cases over a 20-year period since Batson showed that race still contributed to peremptory challenges.

In response, the Arizona Supreme Court completely eliminated peremptory challenges to try and further combat discrimination of colored people from serving on juries. So, as of January 1, 2022, all lawyers in Arizona, which were previously afforded between two and ten peremptory challenges, can only rely on challenges for cause to de-select potential jurors. 

The question many people start asking is whether that was the most ideal thing to do. Should they have left peremptory challenges alone? Should they have taken smaller steps in eliminating peremptory challenges just like Washington did? Should all states eliminate peremptory challenges like Arizona? In my opinion, all states should follow Arizona’s lead! The law is always changing, typically for the better, and this is an example of that. 

I believe that jury selection in Arizona will be more efficient in providing a fair and impartial jury. First, there would be smaller juror pools needed because there aren’t any “free” strikes. Second, attorneys will have to depend on challenges for cause to obtain their “perfect jury.” This means that they will have to thoroughly interrogate and take comprehensive notes of potential jurors. Furthermore, in relying on solely challenges for cause, attorneys are obligated to rely on more concrete grounds as to de-selection. Thus, challenges will not be left to the subjective beliefs or perceptions of an attorney. Nevertheless, we will not know what the full impact of Arizona’s new rules are until after they have been in place for some time. But, at the very least, there is a determination to change the reality of peremptory challenges.  

 

Elitist and Exclusionary: The American Jury System

         It cannot be stressed enough that juries need to reflect our communities in order to function as a fair and accurate representation of justice from our peers. Unfortunately, low-income Americans are frequently handed the short end of the stick when providing service, stuck with the choice to either (1) participate and lose out on necessary wages; or (2) be excluded from the jury process because they fit into the financial hardship exemption.                  

In 2020, according to data compiled by Nielsen, the American Payroll Association, CareerBuilder, and the NEFE, between 50 percent and 78 percent of employees earn just enough to pay their bills each month. So, while jury duty is simply inconvenient to some Americans, those who are self-employed, hold multiple part-time jobs, or are dependent on tips as part of their compensation, potential loss of income is critical and they do whatever they can to avoid serving on a jury. The public opinion on juries seems to reflect this class divide, with higher earners seeing it as a privilege and honor, while some low-income earners see it as a burden and waste of time. 

 

Right now, jurors in Texas are faced with statutory punitive measures that can vary from $100 to $500 if they fail to attend court or file a false claim of exemption. Yet, Texas jurors only receive $6/day and a $3 off parking voucher for their trouble. And parking near the court costs about $10. So, in essence, a Texan juror would be paying to be on the jury, and that is excluding other necessary expenses going into serving – such as gas, childcare, and lost wages. Talk about using the stick instead of the carrot...

 

If we truly want to maintain the integrity of our legal system, we need to adapt to these very serious issues that keep our juries unrepresentative of our peers. In 2016, jurors in King County, Seattle brought forth a class action suit to require that jurors at least get paid minimum wage if they are not compensated by their employer. Unfortunately, they lost. And so, the problem remains that there is a disproportional exclusion of the poor serving on juries with no relief in sight.

 

The reason this hasn’t been solved is the same reason that voter suppression exists – to deprive the working class of their voices. Very few governmental entities have lifted a hand to remedy this issue. For example, San Francisco has started pilot programs like “Be the Jury” that raises juror pay from $15 to $100/day if they meet certain financial conditions. But San Francisco is just one city. To see systemic change, we all need to make major shifts in our priorities. 

 

In a democracy, civic participation should be held as the number one priority. We have strayed far from that view, taxpayer dollars now going towards building walls and maintaining the military industrial complex for the small price tag of $777.7 billion. The obvious solution would be a reapportionment of the budget to aid citizens in lessening the burden of participation. But I don’t believe that things will change because the people who would benefit the most from the change are too busy working to dive into democratic reform on their free time. 

Retweet This: Juries Using Social Media Harms the Trial Process

     The problem that has developed with jurors using social media and the internet during the trial process is not new. The digital footprint is continuously growing within modern society. Everyone has access to social media and the internet at the touch of their fingertips. However, jurors are supposed to be focused on the information presented and should not be using additional sources to formulate their opinions. 

    Because of the digital world we live in, research has shown a correlation between social media and internet use by jurors, and mistrials. One notable example is a death row case from the Arkansas Supreme Court in 2011. The Arkansas Supreme Court ordered that the inmate deserved a new trial because a juror tweeted during trial proceedings. The jurors were specifically told not to use social media during the trial, but one juror chose to ignore the instructions. As Associate Justice Donald Corbin wrote, the risk of prejudice is “simply too high’ to allow jurors to post any information or “musings” online. 

Will new model jury instructions help?

    The Judiciary is aware of this problem and efforts have been made over the last few years to limit social media usage by jurors. In September 2020, a federal Judiciary committee issued a new set of model jury instructions that federal judges may use to deter jurors from using social media to research or communicate about cases. The new instructions specifically eliminate communication with anyone about the case in any way through all social media sources. Likewise, the instructions prevent jurors from doing their own internet research on case issues. 

    What is clear about the new model jury instructions is that the Judiciary recognizes the importance of upholding the integrity of a fair trial, but by making the instructions optional, the effects of these proposed words falls short. If Judges do not utilize these model jury instructions, then this could be seen as a wasted effort.

Does money talk when it comes to social media usage?

    In comparison, California has attempted to enhance the risk attached to using social media or surfing the web. California legislators enacted a law in 2016 allowing judges to issue a $1,500 fine to jurors caught using social media. Given that most citizens are reluctant to serve as a juror because of the little or non-existent compensation that they receive, I would have to imagine that the risk of being fined $1,500 for being caught using social media during trial would serve as a hefty deterrent. By implementing the new model jury instructions along with enacting a similar law to California, that could be a recipe more inclined to discourage jurors from posting and tweeting with no remorse. However, monitoring social media usage sounds like a full time position that the Judiciary is probably not going to want to finance. 

  How do we stop the impact of bias on social media that the jurors read about before they come to the courthouse? 

    In the age of social media, it is almost impossible to find jurors that have not been exposed to various accounts of the facts before voir dire. To combat the effects of these biases, attorneys are asking jurors about what they have seen on social media as part of the voir dire process. Even if the instructions are followed and the attorneys seek to determine what biases jurors bring into the court room, does a juror ever really unplug? The answer is, they need to. 

Lack of Control in Virtual Jury Trials

Without control and proper decorum, it is unlikely virtual jury trials will last past the pandemic. 

It is important to note that different processes have been adopted in different jurisdictions. While some have attempted virtual options, most are continuing to wait out the pandemic, especially criminal courts.

Jury Selection

Checking the mail and finding a jury summons may cause several reactive emotions like stress, excitement, or anxiety. These emotions are inevitable because the selection process is so random. The goal of the summons is to ultimately select a diverse, unbiased jury for the case. If this process is removed from the courthouse and onto an online platform like Zoom, then this goal becomes harder to achieve. 

A wide selection of the community is imperative to creating a diverse jury. By moving the in-person process to a virtual one creates its own problems. First, anyone who does not own a computer, tablet, or some online device will not be able to log in to the virtual jury room. Second, anyone without high-speed wireless internet may not have strong enough broadband width to sustain a large virtual meeting for a long period of time. These two requirements of a virtual jury selection process immediately eliminate the lower-income members of the community. Thus, the pool will be less diverse without them.

Even if a potential juror has a computer and access to Wi-Fi, there can still be issues navigating new software. As with all technology, there is a learning curve. Mostly everyone has had to learn a new virtual platform by now and understands the hurdles that must be jumped over to get to the meeting in a timely manner. 

Then all mayhem breaks loose when the Wi-Fi connection disappears, and everyone seems frozen on the screen. The minutes feel like hours, and suddenly the person is expected to fix their technology on their own. With that lost time, catching up can be tricky, if not impossible. 

Trial

Now let's assume a jury has been selected. The trial continues on a virtual platform. All the jurors have their video screens on display for everyone to see. In one virtual trial held in Dallas, Texas, a viewer could see into the jurors' living rooms, bedrooms, and home offices. There is some concern that the safety of the jurors may be compromised in a live-streaming event where their background is their home, or that their name or face will be identified. As pictured above, while unintentional, a participant cannot hide its identity with a filter.

Additionally, jurors are more likely to be distracted while in their own home. There have been guest appearances by cats, dogs, children, spouses, and others. With all of these distractions, it is difficult to stay tuned into trial for countless hours. For example, in a virtual trial, one juror reported feeling dizzy after staring at the computer for two days.

Compared to live, in-person trials, one lawyer described the differences as: "[w]hereas, when you were in person, there's a lot more to read there. You're in an open court; there's a lot of body language going on. You can get a sense and a feel for how the jury is viewing a portion of the case. You don't have that on Zoom" said Chad Moore, a New Brunswick, New Jersey, partner at the law firm Hoagland, Longo, Moran, Dunst & Doukas. 

The nonverbal cues along with focus are lost in translation during a virtual trial.

Control

From the judge's perspective, it is impossible to instill decorum in every juror's place of residence. Basically, anywhere outside of the courtroom, a judge loses their effective power. The jurors do not experience the same sense of seriousness, process, and high stakes as they would in a courtroom.

While the judges who decide to try a virtual trial are patient throughout the process, the new technical difficulties can make the process last longer than usual. 

Future

Focusing on these three factors alone, virtual trials do not result in justice being served if one juror loses connection, another juror is distracted the whole time, or the judge cannot control the process effectively. Justice demands more.

While it was a nice idea to try to streamline the backlog of cases, a virtual trial could end up causing more damage than the case called for.

Jury Duty Pay, Is It Enough?

Many Americans describe jury service as a duty and "part of being a good citizen." Despite sixty-seven percent of Americans holding these views, some Americans don't show up for jury duty. Indeed, achieving a high jury summons response rate has proved difficult. 

For instance, in Texas, one news report cited a study which found that "as many as 80 percent of those summoned for jury duty simply fail to show up." Thus, why is there a low juror response rate? After all, most Americans view jury service as a civic duty. 

Juror Compensation is Lower than Minimum Wage

One problem with jury response rate is the low pay rate which jurors are compensated. A real practical problem is that jurors have no financial incentive and possibly no financial ability to participate in jury service. 

According to the Texas Judicial Branch, compensation for jury members per day is set at a minimum of $6 and a maximum of $50. Another problem is that individual counties have wide discretion whether to offer additional compensation such as free parking, transportation reimbursement, free meals, and other compensation options. By comparison, federal minimum wage law requires nonexempt employees to receive at minimum $7.25 per hour. For many potential jurors, the low compensation amount for jury service is too burdensome even if a potential juror wishes to serve. 

A reasonable question is why jury service compensation continue to remain so low. How can this be solved? 

Solutions to Increase Juror Compensation 

One possible solution is for employers to cover the cost of their employee's jury service. However, currently there is no federal law that requires employers to pay employees for time spent not working. 

However, under the Fair Labor Standards Act, states may pass their own state laws and require employers to pay employees even while they are in jury service. In fact, eight states have passed laws which require employers to pay employees for time spent in jury service. 

Similarly, some counties in Texas, have called for county action and asked county commissioners to enact similar laws to improve juror response rates. For instance, in Harris County, Texas, one proposal "would give jurors $50 for the first day and $80 for subsequent days, compared to what they are currently receiving, which is $6 the first day and $40/day after that." Proposals such as these are needed if the goal is to ensure a diverse potential jury pool and not disproportionately effect low-income earners. This is because most employers who voluntarily pay employees for time off while serving on jury duty are most likely employers with "full time workers, high-salary earners, and employees of companies with 500 or more workers." 

States Should Adopt California's Approach

An additional measure would be a targeted approach. In order to combat inadvertently excluding financially burdened low-income earners from jury service, a first step for states would be to adopt measures to increase daily jury pay compensation. For example, after thirty years, federal courts increased jury pay from $40 to $50 per day. But similar jury compensation increases have not occurred in the states. 

However, California, has at least taken a more targeted approach. California enacted a pilot program called "Be the Jury," which is designed to assist low income jurors and provide $100 per day compensation. If states want to ensure that a diverse jury pool exists in their state justice system, then lessening the financial burdens for jury service is a good start. 

In sum, there are multiple ways to ensure jurors are able to participate in jury service, but changes to the current system are needed in multiple ways. 

Grand Jury & Prosecutors - Calibrating the Scales of Justice

In January, the Dallas County Prosecutor’s office announced prosecutors would no longer make recommendations to grand juries during the proceedings. This shift in policy comes in an effort to be consistent in grand jury proceedings conducted by the office.

 What is a grand jury?

A grand jury is used to determine whether an indictment should be brought in a criminal proceeding. The Texas Constitution guarantees that only a grand jury may issue a felony criminal indictment. Tex. Const. Art. 1, § 10. A grand jury consists of twelve qualified persons who represent the demographics of the county populace, and nine out of the twelve are required to indict a case. A grand jury is not adversarial, as the defense attorney is not allowed to be present, but rather a prosecutorial aid in investigating a case and determining the ability to bring charges. The prosecutor has the duty to provide the facts necessary to a grand jury and aid the grand jury in understanding the law presented. See CCP Art. 20.05.  According to an Assistant District Attorney in Harris County, a prosecutor should be wary of the appearance of infringing on the grand jury’s independence and avoid direct instruction on the grand jury’s decision.

 The Policy Shift

The Dallas County District Attorney, John Creuzot, recently announced the Uniform Grand Jury Policy. This policy “mandates that prosecutors presenting cases to grand juries not make a recommendation of whether to indict or no-bill cases.” The previous policy had allowed prosecutors to make a recommendation to grand juries in most criminal cases. However, the policy did not allow for recommendations where police officers or other public officials were the potential defendants.

The policy change is an attempt at consistency. According to the announcement, prosecutors will provide guidance on elements of the crime and whether, in the prosecutor’s view, the elements are met, as well as to answer questions regarding presentation of the case. According to DA John Creuzot, “It will be up to the grand jury to exercise their discretion—which is what they are here to do—without influence from [the DA’s] office.”

The policy comes after Creuzot’s office has failed to obtain indictments against police officers in multiple allegations of misconduct and criminal cases tied to the George Floyd protests in May 2020. In a January 5 press conference, Creuzot admitted that the office does not make recommendations to grand juries on whether to indict police officers.

Though consistency is generally a positive in the criminal justice system, this policy shift raises questions of fairness and prosecutorial independence. Where prosecutors make indictment recommendations in a grand jury proceeding, there is a heavy finger on the scale of justice. As the grand jury proceeding is not adversarial, there is no opposing party to present other sides, recommendations, or even evidence. Initially, this policy seems to return power to the hands of the grand jury in their constitutional and statutory capacity and limit the power and subvert influence of the prosecutor that has seemed to favor public officials. Due to the closed nature of grand jury proceedings, it is difficult to know how strictly and in what manner this policy will be implemented.

Duck, Duck, Foreperson: The Benefits and Risks of a Jury-Chosen Foreperson

DEFINITION OF JURY FOREPERSON

        Merriam Webster’s dictionary defines “foreperson” in terms of the less-politically-correct term “foreman,” which is defined as “a first or chief person: such as a member of a jury who acts as chairman and spokesman.” Generally, a jury foreperson will preside over the jury’s deliberations and deliver all the jury’s communications to the court, including questions and verdicts. 

BENEFITS OF JURY-CHOSEN FOREPERSON

        One way to examine the benefits of a jury-chosen foreperson is to examine the dangers of the alternative: a judge-appointed foreperson. In many jurisdictions, the judge will appoint a juror to serve as foreperson.  This practice defies Supreme Court precedent, which noted that judgments of the jury are rendered meaningless “if the trial judge…influence[s] the jury’s findings.”  It is likely that the jury will interpret this appointment as a sign of the judge’s approval of this individual’s judgment. Additionally, judicial appointment of the foreperson can even affect the composition of the jury if the appointed foreperson is exempted from serving as an alternate juror.  

RISKS OF JURY-CHOSEN FOREPERSON

        While a judge-appointed foreperson presents structural concerns, a jury’s selection has its own 

challenges. Studies show that when juries choose an “older, highly educated, extraverted male with prior jury service who was the first one to speak…and [is] sitting at the head of the table” to be foreperson.  The jury foreperson typically speaks two to three times more than the other jurors.  Significantly, the jury’s verdict usually reflects the opinion of the jury foreperson before deliberations began. 

CONCLUSION

        On balance, appointment by a judge appears to be more problematic than appointment by the jury. A jury-selected foreperson removes the risk of improper jury influence by the trial judge and allows the jury to retain total control over their deliberations.

Lack of Color in the Jury Selection

Nearly 15 percent of the adult American population is summoned to jury service each year in federal and state courts. The jury selection includes individuals over the age of 18 who are registered to vote and have a driver’s license. However, repeated criticisms are raised that people of color are vastly underrepresented in the jury pools. 

Many cases are getting a great deal of attention from the public on the lack of diversity within a jury. These cases include: Flowers v. Mississippi, State v. Kevin Plain, and the Ahmaud Arbery case. The three cases mentioned are similar in that the defendant was a black individual who had a jury filled predominantly with white individuals.  

In State v. Kevin Plain, the African-American defendant challenged his harassment conviction arguing he did not have an impartial jury. He asserted that his right to an impartial jury was violated when only 1 of 49 potential jurors that showed up for jury selection was an African-American. The defendant offered a couple of practices that caused the underrepresentation of colored people in his jury pool. He addressed the failure to update addresses when summons were returned as undeliverable, failure to follow up with jurors who did not respond, and failure to hold jurors accountable through enforcement proceedings for failing to respond or appear. In upholding his conviction, the Supreme Court of Iowa described these as “run-of-the-mill practices” that the Supreme Court has declined to condemn. 

The issues the defendant raised are based on the justice system’s reliance on outdated and ineffective methods of communication with prospective jurors. Nevertheless, more criticisms are raised that people of color are underrepresented in jury pools because of jury service not being financially feasible and the exclusions of those who have committed a crime. These key issues do not even account for a peremptory challenge, which allows attorneys to dismiss jurors for any reason except race, ethnicity, or gender. 

The peremptory challenge has been a topic of debate as the Arizona Supreme Court recently got rid of it. Many question whether this challenge does more harm than good. They speculate that many attorneys can dismiss potential jurors because of their race and simply give a different reason to the public. These reasons can be as simple as “the potential juror did not seem to be paying close attention” or “they looked angry and did not seem like they wanted to be here.” These are a couple of reasons that the court has accepted, which leads to no real difficulty to have a juror dismissed for a hidden agenda.

Therefore, numerous individuals are blaming the structure of jury selection and how it leads to people of color being underrepresented. They are pointing to several causes that lead to this underrepresentation of color in jury pools. Nevertheless, the question is whether the courts will take some type of action to attempt to fix these “run-of-the-mill” practices.

Skirting the Line: Recent Batson Cases 

The idea behind Batson v. Kentucky is a simple one: an attorney cannot use peremptory challenges to dismiss potential jurors without valid cause, and never based only on race. Yet, as is the case with many ambiguous statutes, there have been efforts to circumvent the protections in the Batson rule. This is accomplished by asking questions that skirt around explicit protections, such as, “Have you ever had a bad encounter with the police?” or “What is your opinion about the Black Lives Matter movement?”

Two recent examples of attorneys using such challenges in order to, seemingly, reduce the prevalence of black jurors in high-profile cases based on their opinions about race have made the news.

In the widely-publicized trial for the death of Ahmaud Arbery in 2021, allegations of racial persecution arose after eleven white jurors were chosen to represent a county with a 20% Black population. The case itself was one of three white men who had either participated or shot Arbery while he was jogging in their neighborhood. Out of twelve Black potential jurors, eleven were struck by the defense in peremptory challenges with the reasoning that they did not believe that they could be objective about the facts of the case. One Black juror’s opinion that “no one needs to have their life taken” is reported to have been enough to dismiss them completely from serving on the jury.

California’s Supreme Court ruled in September 2021 that a juror’s exclusion from serving for a 2016 double murder was in violation of Batson because of the judge and prosecutor’s mischaracterization of Black Lives Matter. Crishala Reed had been questioned on her views of the movement and her support was viewed as sufficient grounds to use a peremptory challenge to keep her from being a juror.  The judge and prosecutor were held to have excluded Reed on the basis of race because of their own negative biases attached to Black Lives Matter.

One of the proposed fixes in Arizona is to completely eliminate peremptory challenges all together. This comes on the back of recent legislation in Washington and California that allows judges to deny peremptory challenges if it is determined that an objective observer would view race as a factor in its use. While this seems like a promising first step, one has to wonder if the insidious nature of bias and the win-at-all-costs mentality of voir dire questioning would just encourage even more inventive questioning in order to preclude disfavored jurors.

Peremptory Strikes: Too Much Discretion has Harmed Jury Trials

 Introduction

            Attorneys know the importance of seating a favorable jury for their case, and a good trial lawyer will use the rules of jury selection to aid them in their quest for a winning verdict. Throughout the country the rules have typically afforded opportunities to “strike” potential jurors (28 U.S.C. § 1870 (for civil trials) and Rule 24 of the Federal Rules of Criminal Procedure (for criminal trials)).

            Each side is afforded infinite strikes “for cause” because those challenges remove jurors who are deemed incapable of deciding the case impartially. However, given the nature of jury selection, a juror’s implicit bias may sneak past any strike for cause, and many members of the venire may be seated on the jury simply because they remained quiet enough not to cause any alarms for the attorneys or the court. Because of that reality, attorneys are given a second chance at “fixing” problematic jurors in the form of “peremptory strikes.”

            But those peremptory strikes produce more problems than they solve.

The Problems With Peremptory Strikes

            Peremptory strikes require no reason to be given for removing a potential juror. Attorneys are given discretion with these challenges, and that discretion through peremptory strikes has gone largely unchecked over the course of United States judicial history. But even with multiple Supreme Court opinions on the matter, peremptory challenges remain impossible to regulate. The needs for such regulation of these strikes include protecting against race-based or gender-based challenges, which is something that has marred our nation’s past.

            Attorneys may favor one race over another because of generalized factors that paint entire swaths of the population in the same light. Accordingly, the use of peremptory challenges has proven to be a double-edged sword: on the one hand, peremptory challenges allow attorneys to catch some of the problematic jurors that avoid any for cause strikes, which provides for fairness in eliminating potential biases; however, the negative side of peremptory strikes allow for a conveniently cloaked effort to challenge specific groups of people with virtually no restriction.

Arizona & Washington: Recent Attempts at a Solution

            It is the inability of courts to regulate peremptory challenges that has created increased discussion regarding the complete removal of peremptory strikes. In fact, just last year, the Arizona Supreme Court, due to a lack of guidance on handling peremptory strikes, removed them from any state court proceedings. Additionally, the legislature in Washington state added specific language to its statute regarding jury selection that sets out “presumptively invalid” reasons for excluding a juror—an effort that limits attorney discretion for these challenges.

            The recent move by Arizona’s top court and Washington’s legislature begs the question: should peremptory strikes’ scope be narrowed or struck entirely?

            To be sure, the United States Supreme Court has alluded to doing just that in prior opinions, most notably in Chief Justice Marshall’s concurrence in the Batson v. Kentucky opinion. Batson saw racially motivated peremptory strikes lead to an unconstitutional conviction, and the Supreme Court ultimately created a three-step approach to challenging peremptory strikes. The Batson challenge established, in part, that the court gets to determine if the strike was racially motivated. While this appears to be a victory for trial courts on paper, in practice, Batson challenges have very rarely been upheld by judges. In effect, Batson simply added a very low bar, which has maintained the status quo in jury selection as trial lawyers have been trained to prepare a race neutral reason for any suggested challenge—trainings that have been overtly targeted at circumventing the Batson rule.

Conclusion—What is to be Done?

            Because of the nature of people, peremptory challenges can be a useful tool in trials. Jurors may stay quiet about biases for a number of reasons, so they fail to be deselected for cause, or attorneys and judges may simply miss a question that would reveal such a “cause.” However, the negative aspects of peremptory challenges seem to have tipped the scales of justice enough to favor Arizona and Washington’s approaches on the issue.

            Unfettered discretion, with no limiting language, has simply created an avenue for savvy attorneys to get around the limitations on peremptory strikes. Moreover, much can be learned by studying the lack of any real practical effects Batson has had on trials, which further highlights the need for an adjustment on the matter.

           

Slam Dunk Voir Dire? Not Quite...

One of the most defining moments of 2020, although there were many, was the death of NBA player Kobe Bryant.  The news of Bryant's death shocked the world.  Everyone - not only his fans - intensely followed the news that reported on the aftermath of the tragic helicopter crash.  First responders on the scene took photographs of Bryant and his daughter Gianna Bryant - sharing them with various unauthorized individuals.  Bryant's wife, Vanessa Bryant, filed a lawsuit against the LA County Sheriff's Department.  Vanessa Bryant is seeking damages for emotional distress and mental anguish as a result of the dissemination of the photographs.

The beginning of the trial is unfolding, and the attorneys are predicting they will have a hard time with the voir dire process.  In all trials, it is a difficult undertaking to find an impartial and unbiased jury.  However, in a high-profile case such as this one, the task is even more challenging.  It is important for the attorneys to find the "hard-core Kobe fans" as they will likely skew the verdict.  The attorneys have submitted a list of proposed questions to ask the jury pool, including but not limited to: "How would you describe your feelings toward Kobe Bryant?" "How would you describe your feelings towards the Los Angeles County Sheriff or the LA County Sheriff's Department?"  The trial is set in Los Angeles County; therefore, these questions will likely have a hug impact on disqualifying jurors for bias.

High-profile legal cases generate a huge media following.  The trials of OJ Simpson, Scott Peterson, and Bill Cosby all have had to deal with the issue of finding impartial jurors.  The location of the trial creates major concern.  Kobe Bryant, being a Los Angeles Lakers player for many years, makes it hard for potential jurors in Los Angeles County to be completely impartial.  Additionally, his fame and renowned success has created a bias in not only in California, but the entire country. 

Attorneys have acknowledged the fact that it is nearly impossible to find jurors in high profile cases that have not been exposed to the media coverage.  However, there are some proposals that combat the damages of pretrial publicity.  Some data suggests that comprehensively examining individual jurors is helpful, although it is not infallible.  Another tactic is venue change.  However, this is likely inadequate when the case is generating national media coverage.  Therefore, an attorney's main goal is to find the jurors who, regardless of their familiarity with the case, can put aside what they have heard and look at the facts objectively. 

The trial has yet to play out, as it is set for late February 2022, but it will be an exciting opportunity to see how the court attempts to make this trial as fair as possible so justice can be served.

 

Follow in Arizona's Footsteps and Try to Eliminate Preemptory Challenges?

It's Clear the Jury Selection Process Needs An Update - But How? 

       Its funny that we call it the "jury selection process" - otherwise known as Voir Dire - when in actuality, it is the jury de-selection process. The mechanics of how juries are picked are complex and controversial, but the main concern with this process are the "challenges" attorneys use to disqualify an individual from serving on the jury.

       In most courts, attorneys have "for-cause challenges" and "preemptory challenges." After questioning the potential jurors, each party's attorney may use one of these challenges to render one of the potential jurors as unfit to sit on the jury for that trial (Deborah C. England, How Lawyers Choose Juries). Each party has unlimited for-cause challenges, which are based on some reason or cause to eliminate the juror. These are relatively broad challenges, allowing the attorney to strike unlimited prospective jurors as long as there is an evident cause to do so. 

       Preemptory challenges are the topic of most jury selection criticism. Each party's attorney gets a limited number (usually 3 per side in a federal civil case (28 U.S.C. § 1870); in federal criminal trials, the number of preemptory challenges allows is 10 for the defendant and ten for the prosecution in a felony case, 20 for each side in a death penalty case, and 3 for each side in a misdemeanor case (Fed. R. Crim. P. 24), which allow the party to disqualify the juror without cause. In other words, they do not need to state the reason why they would like to dismiss this juror. Preemptory strikes are considered controversial because, without an explanation for why this juror is being dismissed, the attorneys could be using an improper basis to do so. For example, race, gender, social status, residence, political views, etc. Preemptory challenges are acceptable to eliminate jurors for completely arbitrary reasons and provide no explanation whatsoever, making the motives extremely shady. 

    Arizona's State Supreme Court took a surprising step last fall (August 2021) to eliminate preemptory challenges in an attempt to ensure juries are more diverse (Ian Millhiser, Arizona Launches Bold New Experiment to Limit Racist Convictions - August 31, 2021). Because there is no explanation or cause required for a preemptory juror strike, these challenges are often used to exclude people because of their race. And Arizona will be the first state to completely eliminate these types of challenges in their jury selection process. 

        This sounds like a good thing right? Well, some may say it is. But others may say that without preemptory challenges, attorneys will not be able to remove ""jurors who they believe might be biased, even if the juror doesn't do anything suspicious enough to justify removing them from cause. We see this all the time - we all have biases. And sometimes attorneys can see it based on other questions they ask the jurors, leading them to want to eliminate them to protect their client in court. 

        Arizona is hopeful that eliminating these challenges will help their court system because of two reasons. The first is that their rule requiring an unanimous verdict is another safeguard ensuring the defendant will not get injustice. The second being that the decision to eliminate these challenges has been done successfully by other democracies, such as Great Britain and Canada. 

        Although there are some constitutional limits to preemptory strikes (such at Batson), they are very difficult for judges to apply as they have to basically "sniff out whether a particular juror was removed for racist reasons." Furthermore, only 5 cases in Arizona have been reversed over a Batson challenge. 

The idea to eliminate preemptory strikes is not new - in fact, it was proposed by Justice Thurgood Marshall over 3 decades ago. So why haven't we done it?