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 an 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.”
Graham said he is about to start his first in-person trial since the pandemic began 15 months earlier — a civil case. The court has spent a lot of money on courtroom preparation, including lots of plexiglass and large air purifiers, he said.
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 Arizona’s 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 from a lawyer on an Apple watch. In one online hearing, Nance said, she caught a lawyer sending texts to a client who was testifying from a separate location.
Intimidation by someone in the room “could become a huge factor” when children testify remotely in abuse cases, Nance said. This became a real concern in a recent sexual assault case, she said, when a 12-year-old boy was testifying against his uncle. “We have no control now over who is in that room when testimony is going on,” Nance said.
Still, there are countermeasures, the judges agreed. Some judges have become very skilled at detecting when testimony is being coached, Gates said. “The tells are somewhat apparent,” she said.
At a minimum, judges at virtual hearings should always issue standing orders that cover these issues, Graham said, then review them with lawyers and remind the attorneys that if they become aware of any issues, they must report them to the court.
Finally, the judges warned that online jury selection could lead to juries that are not representative of their communities, especially in places where low-income residents may not have computers or Wi-Fi connections.
Nance offered the cautionary tale of Genesee County, Michigan — home of Flint — where court officials in 2017 required prospective jurors to complete jury service questionnaires online within 10 days or face criminal penalties. Nance called that “a huge step back” in the county’s decadelong campaign to encourage jury participation. “We have to be sure to include everyone,” she said.