Once the COVID-19 pandemic ends, the new normal in state and federal courts may be a hybrid trial system, with civil trials held mostly online and criminal trials held in person.
That was the consensus of three judges and a former magistrate judge at a June 3 ABA webinar on the future of remote jury trials after the pandemic. The program was hosted by the ABA Judicial Division and sponsored by Thomson Reuters.
The judges agreed that in-person criminal trials probably will return to courtrooms because the stakes are so high and to preserve the constitutional rights of defendants. “In the criminal area, when we’re talking about taking someone’s liberty away … I want that defendant before me,” said U.S. District Judge Donald Graham, who is based in Miami. “If I’m going to give someone 20 years, I want them to be looking at me. I want to have direct contact as much as possible.”
In civil cases, the judges predicted, online hearings and trials are more likely to become the norm. Oral arguments are “going to be largely virtual,” said Judge Pamela Gates of Maricopa County Superior Court in Phoenix, and expert witness testimony will be simpler online. “Expert witnesses can testify very effectively and in a cost-effective way when they are (located) in Florida and testifying in Arizona by just clicking on a link. Or a doctor who may not be available could set aside three hours and be able to click on a link and testify.”
Despite a year of lessons learned from online hearings, there are still dangers in virtual proceedings, the judges agreed.
Judge Debra Nance of the 46th District Court in Southfield, Michigan, a suburb north of Detroit, said she worries about witnesses being coached while testifying online. It’s too easy, she said, for witnesses testifying from home to have someone just off-camera telling them what to say. They also could read from notes on a table in front of the laptop, or even read texts on their Apple watch sent from a lawyer. In one online hearing, Nance said, she caught a lawyer sending texts to a client who was testifying from a separate location.
Finally, the judges warned, online jury selection could lead to juries that are not representative of their communities, especially in places where low-income residents may not have access to computers and Wi-Fi connections.
- ABA Task Force on Legal Needs Arising from the Coronavirus (COVID-19) Pandemic
- ABA Practice Forward Amid COVID-19 resource page
- ABA Commission on the American Jury
- ABA 2020 report on disappearing jury trials
- ABA Journal: