Civil Jury Project
Volume: 5 | Issue 7
July - 2020
Opening Statement
“Long distance is the next best thing to being there.”
-Bell Systems Advertisement, circa 1965
Dear Reader,     
As you know, we have turned our focus to best practices for virtual jury trials. However, now is a good time to be clear on our view of virtual trials. A virtual trial will never be the same as “being there” in the courtroom. Our efforts are geared to making the virtual trial “…the next best thing.”
Our Executive Director, Steve Susman, made his career on “being there” in front of a jury and arguing his case. There is no substitute for that. However, when the pandemic hit, Steve realized that courts had to turn to working remotely and he set us upon the mission of finding the best practices to do just that. 
Ironically, although we are the Civil Jury Project, our hope is that our work may also benefit criminal cases. Portions of the trial, such as jury selection, and perhaps jury deliberation, can be broken off and done remotely. This will reduce the number of people coming to the courthouse.
In this issue, we bring you a report from two of the attorneys who participated in our May 28 virtual mock jury trial. Stephanie Parker and Jennifer Weizenecker of Jones Day offer suggestions for improving the videoconference platform. Our hope is that some videoconferencing company will roll out an intuitive, easy-to-use, secure platform that resembles a real courtroom.
With social distancing, our courthouses, while not literally shrinking, are practically shrinking. Accordingly, courts may be considering juries of less than 12. Judges Patrick E. Higginbotham (U. S. Ct. of App. 5 th Cir.), Lee H. Rosenthal (U.S. Dist. Ct. TX) and Professor Steven S. Gensler (OU Law) offer compelling reasons to keep our 12-person juries.
Michael Pressman, one of our Research Fellows, outlines the challenges facing courts with securing a diverse cross-section of jurors for remote trials. Once jurors are selected, Michael Shammas, our other Research Fellow, shares insights from other disciplines on best practices for the length of court sessions.
Finally, a plea for help so we can share what is working for you during this time. If you have stories about what worked well, or fixes found for what did not work so well, we would love to hear about them. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters. Please send these to us here or by email to me at .
Thank you for yo ur support of the Civil Jury Project.

Hon. Mark A. Drummond (ret.),
 Judicial Director

Upcoming Events
Due to the Stay Home orders, all spring and summer events are being rescheduled to the fall.
By Stephanie Parker and Jennifer Weizenecker

I.                  Jury Selection [1]
Even in-person jury selection is a complex process with many moving parts. Moving to a remote platform would amplify those complexities. The following could potentially mitigate those new difficulties, helping jury selection succeed in a remote platform.
A.               Panel Size

One consideration for implementing remote jury selection procedures is scale. The court and counsel will want to see every juror who is actively participating in voir dire . But even a group of 50 prospective jurors would be unworkable with the limitations of current, commonly used technology, including limited screen size and the number of participants visible in a virtual meeting room. During the mock trial, 12 potential jurors participated in voir dire . If a trial requires a large number of potential jurors, it will be necessary to divide the group into smaller panels (likely no more than 12 jurors), so that they are all visible and able to communicate effectively with the judge and counsel. Voir dire could be conducted one group at a time and repeated until enough jurors remain after hardships and cause challenges to begin peremptory strikes.
B.                Questionnaire

Use of more extensive questionnaires may help to limit the number of jurors who will need to participate in the video voir dire process. Although many trial lawyers and trial judges have strong opinions on the use of questionnaires, use of a questionnaire may be a necessary step to efficiently cull jurors before the necessarily time-intensive remote voir dire process. Jurors could fill out a questionnaire with hardship and bias questions online, and jurors who have a hardship could be excused prior to the virtual jury selection. Similarly, the parties could agree to dismiss a potential juror for cause based on questionnaire answers before the virtual jury selection. There is a risk, however, that having the jurors complete questionnaires with bias questions online and outside the view of the court or court personnel will increase the chance that jurors research the case.
C.               Technology For Static Jurors

During in-person jury selection, jurors are typically assigned identification numbers and seated in a particular order. They then remain in that same order for the remainder of jury selection. A current pitfall of remote technology is that juror positions do not remain static: Participant windows are re-ordered based on who is speaking or the order in which the participants enter the remote meeting after breaks. This makes it difficult to keep track of juror responses using seating charts or similar organizational devices often used during in-person voir dire
Perhaps less obvious, though, is the impact non-static juror windows will have on the “muscle memory” of jury selection. Lawyers conducting voir dire often will mentally divide up the room into smaller sections. For example, there may be a juror who has given concerning answers in the back left hand corner of the room. In person, it is easy to glance in that direction, quickly see the juror, and follow-up or ask additional questions based on something another juror has said. The court uses the same visual cues and will often refer to a juror by his or her location in the courtroom. In a virtual setting with constantly re-ordered jurors, the visual cue of seeing jurors in a particular seat or part of the room is lost.
A remote platform that has the option to lock the screen location of participants would help to recreate the courtroom setting.
D.               Real-Time Transcript

Remote jury selection will limit arguments based on a juror’s body language. Both lawyers and judges make arguments for disqualification based on demeanor, and body language can be particularly important for Batson arguments (either for or against a strike). These types of arguments will not be as compelling in a remote setting, and judges may be less willing to rely on body language. The transcript of what the prospective juror says during voir dire will become even more important. Lawyers should make sure to have a real-time transcript during jury selection.
II.               Juror Attention and Sequestration

Because jurors will be using a computer or tablet to view the trial, they will have access to other types of software during the presentation of evidence. This creates several potential problems: first, that jurors will not be paying attention to the trial because of the physical difficulty of staring at a screen for many hours; second, that jurors will be multitasking ( e.g., checking their email, surfing the internet or playing video games); third, that jurors will conduct independent research on the topics being discussed in the trial, the witnesses who are testifying, or even the lawyers themselves; and finally, that jurors can contact one another [2] or a member of the public to comment on the evidence being presented or to discuss the case in general, thereby violating the instructions they are given at the beginning of trial.

A.               Potential Technology Solutions

Restrictions need to be placed on jurors’ access to these types of distractions while watching the trial.
One potential solution is to provide jurors with a court-issued tablet or laptop to use. The tablet or laptop would have only the software required to view the trial, and would not have other functionalities, such as internet access. This
seems feasible as some school systems have given tablets to students to facilitate remote learning. This would also eliminate the need for jurors to have their own technology, which would reduce the potential for remote jury selection to prevent participation of lower income individuals who do not have their own technology.

Another potential solution is to use software that will limit jurors’ access to other programs on their computers, such as the software used by educational institutions or during the bar exam to ensure that students taking online exams (or using their computer to complete exams) do not have access to the internet or other resources while taking the exam.
Alternatively, jurors can be required to download software that alerts the court when a juror is using a program other than the platform being used to stream the trial.
These are imperfect solutions, however, because jurors will still have the ability to use their phone or other device undetected during the trial. Hopefully, the judge can mitigate this by watching for visual cues that they are paying attention, much as the judge would in a courtroom. Requiring jurors to be on the camera from the waist up could assist the judge. With appropriate precautionary measures, the risk for a remote trial could be reduced to something like that presented by a regular trial, where jurors could disobey their instructions to do research when they are on breaks or at home after the court day.
B.                Jury Instructions

Jurors will also need clear instructions tailored to the remote trial. For example, in addition to the standard jurors’ instructions, the court should instruct jurors that:
  • they should leave other devices in a different room during the presentation of evidence;

  • they should not contact anyone during the presentation of evidence;

  • they are not allowed to record the evidence (particularly where there are confidentiality concerns);

  • they should not have anyone else in the room with them.
C.               Time Limits

To ensure that jurors do not lose focus, courts might impose time limits on aspects of the proceedings. To avoid exhausting the jurors, the length of trial and forced screen time should be reduced. Courts should impose strict time limitations to shorten the number of hours per day and the number of days needed to try a case. Courts should also consider giving jurors frequent breaks.
II.               Remote Platform Created For Trials

Currently, there is not a remote platform designed for jury trials. It is our understanding that the Civil Jury Project at NYU Law School has contacted Zoom urging the design of an intuitive, user-friendly, litigation/trial specific platform resembling a real courtroom. Here are some additional suggestions related to the design of that platform:
  • As stated above, allow the locking in of juror position on the screen;

  • As stated above, put limitations on the chat function;

  •  Ability of judge (host) to control what participants see on their screen instead of participants using individual settings, so that everyone sees the same thing on their screens;

  • Objection button for counsel to object, which would eliminate the need for counsel to verbally interrupt in front of the jury;

  • Integration of documents with the platform including: impeachment folders, exhibit folders, and verdict form;

  • Better capabilities for interaction with demonstrative aids, especially when using PowerPoint.

[1] Jones Day participated in the recent NYU Law School Civil Jury Project and NITA remote “Zoom” mock trial held on May 28th, 2020. One of the purposes was to obtain a feel for the hypothetical challenges that such a remote trial could present to counsel, a court, and a jury. As with most such exercises, this one was highly stylized, scripted and truncated to present certain situations and issues. Notably, the format expressly stated that all potential objections to such a trial had been “overruled” by the pretend court. Indeed, the potential objections and their efficacy were not part of the exercise, and the fact that the “trial” proceeded was no reflection of the relative merits of such arguments. Our participation and our observations in this article are made without any assessment, analysis or position about the procedural correctness of such a remote trial. Specifically, Jones Day is not endorsing a remote or Zoom trial by its participation or through this article.

[2] Zoom, for example, includes a “chat” function that by default would be available to the jurors during a virtual trial. This function allows jurors to privately or collectively contact one another during the presentation of evidence.
Stephanie Parker co-leads Jones Day's Business & Tort Litigation Practice and oversees the product liability litigation practice.
Jennifer Weizenecker is an associate at Jones Day and has been a trial team member in more than 20 cases tried to verdict.
The Challenge of Achieving
a Representative Cross-Section of the Community
for Jury Trials during the Pandemic

By Michael Pressman, Research Fellow
The challenges presented by the current pandemic have seemingly affected all areas of society, and jury trials are no exception. As courts seek to resume jury trials, they confront a number of obstacles, one of which will be the focus of this article: how to avoid running afoul of the Sixth Amendment’s guarantee that a jury be selected from a representative cross-section of the community.
There are two ways in which jury trials during current times might confront this obstacle. First, as in-person jury trials resume in courthouses, there is a concern that certain segments of the population might be more likely than others—as a result of their concerns about health risks of in-person jury duty—to either not report for jury duty or to be excused. Second, to the extent that courts carry out jury trials where jurors serve remotely over videoconference, there is a concern that certain segments of the population might be excluded either due to not possessing the necessary technology or due to not having sufficient facility or comfort with the technology.
This article explores whether or not the fair-cross-section guarantee is violated in these contexts, and it analyzes the pros and cons of (1) in-person juries, (2) remote juries and (3) juries blended with both in-person and remote jurors.
One final caveat before we start. It goes without saying that the demographics vary widely from court to court. The demographics in Silicon Valley will be different from the demographics in a rural county in the Midwest. Only when summonses issue and jurors respond will we be able to assess issues regarding a fair cross-section of the community. We are currently working with one court system on designing a jury summons that gives the potential juror the choice between in person or remote service.
Part I describes, in general, the law regarding the fair-cross-section guarantee.
Part II applies the law (1) to the context of in-person jury trials during current times, and (2) to the context of remote jury trials. The article argues that the chance of there being successful fair-cross-section challenges in the current in-person context is quite low, but that the chance of successful challenges in the context of remote jury trials is greater—though even in the latter context it is not clear whether they would be successful.
As long as there is a chance that a challenge would be successful, however, it would behoove us to explore options that would minimize the chances of a successful challenge. Furthermore, even if there were no risk that exclusions would give rise to a successful challenge , we still want for there to be as few exclusions as possible and for the jury pool to be as inclusive as possible. Inclusiveness of the jury pool benefits both the judicial system and society on the whole. In light of this, what can be done? Part III addresses the pros and cons of all in-person juries, all remote juries and a blended approach of mixing both types of jurors. 
I. The law regarding the fair-cross-section guarantee
In order to keep the newsletter to a reasonable length, Part I can be found here.
II. Application
We now explore whether or not fair-cross-section challenges are likely to be successful in the context of (1) cases where jurors report in-person at the courthouse but where many potential jurors in particular demographics stay home because of concerns about catching the coronavirus during (or in transit to) jury duty, and (2) cases where jurors carry out jury duty over videoconference from their own home, but where certain groups are less likely to report for jury service because of the digital or technological divide. 
Before exploring these questions, we provide some interesting data from a recent national opinion poll carried out for—and presented by—the National Center for State Courts (“NCSC”). See NCSC, Jury Service and Accessing Court Services Remotely in a (Post) Pandemic America: Results from a New National Public Opinion Poll , June 18, 2020, available at Aspects of this data will be relevant to the analysis below.
The NCSC survey asked the following question: “Are you more comfortable with in-person or remote jury service?” In response, 23% said “in-person,” 44% said “remote,” and 32% said “no difference.” The NCSC also broke down the data by the demographics of those who responded, and the main demographic groups that were noted were age, race, and gender (though education and ideology were also noted). From greatest to lowest likelihood of reporting in-person, the demographic groups fell into three broad categories. The group most likely to report in-person, at about 80%, was young white men (and especially those who were conservative and non-college-educated). Next, at the median likelihood of reporting in-person of 67-75%, from most to least likely, were: Hispanic men, younger white women, older and college-educated white men, older Hispanic men, and older African American men. Last, those with the lowest likelihood of reporting in person—below 67% and, for some groups, below 50%—were, from most to least likely: younger Hispanic women, younger African American women, older white women, older Hispanic women, and older African American women (below 50%).
It’s not completely clear what types of concerns those who responded to the survey had in mind when they expressed their answers to the survey’s question, but it seems likely that, while various considerations might be relevant, concerns about the virus would affect one’s comfort with in-person jury service, and possession of and facility with technology would be among the factors relevant to comfort with remote jury service. 
A. Application to in-person jury service (during current times)
For in-courthouse trials during the current pandemic and going forward, many potential jurors are likely to be concerned about jury service—even if measures are taken in courthouses to reduce the amount of risk. These potential jurors are more likely to not come to the courthouse or, if they do, they might be more likely to be excused. As for whom these jurors might be, any person might fall in this category, but those who are at higher risk for severe responses to the virus (e.g., the elderly and those with underlying health conditions) are particularly likely to fall in this category.
The data from the NCSC survey are consistent with this expectation. The data showed that older individuals are considerably less likely to be comfortable with in-person jury service during the current times than are younger individuals. Additionally, racial minorities are also much less likely to be comfortable with in-person jury service during the current times than are white individuals. As we know, the African American population has been particularly hard-hit by the virus, and thus the data’s finding is consistent with the expectation that African Americans would feel less comfortable than would whites, for example, with reporting for in-person jury service during these times.
In light of the fact that older individuals and African Americans are less likely to take part in in-person jury service, the question presented is whether this could give rise to a fair-cross-section challenge that is likely to be successful. Accordingly, we apply the Duren burden-shifting framework that was described in Part I, above.
Prong 1: Are age and race “distinctive” groups in the community? Race unquestionably will satisfy this prong. Age is less likely to. Age has never been a distinctive group for the purpose of fair-cross-section challenges. See NCSC, Reestablishing Jury Pools in the COVID-19 Era , June 4, 2020, available at Characteristics of groups found to be “distinctive” have typically been things that are immutable. This is the case for race but not for age. Id.
Prong 2: Is the representation of these groups in venires from which juries are selected not fair and reasonable in relation to the number of such persons in the community? The answer to this question will be a function of how substantial the underrepresentation of these groups is, and it will then also depend on which of the tests, described in Part I, is employed by the courts. Accordingly, depending on how substantial the underrepresentation is, Prong 2 very well might be satisfied for both groups.
Prong 3: Is the underrepresentation due to systematic exclusion of the groups from the jury-selection process? As explained in Part I, systematic exclusion requires the exclusion be a result of the jury mechanism or caused by a rule or practice that a state actor controls. Here, courts would likely find this to fail the systematic-exclusion prong. The courts have no control over the virus, and it likely would be found, applying the rules described in Part I, that this would not be systematic exclusion. As stated in Part I, however, courts have taken different approaches to the topic of underrepresentation due to socioeconomic factors, so it is not inconceivable that a court could find Prong 3 to be satisfied for some groups.
Thus, the race challenge would likely fail Prong 3, and the age challenge would likely fail Prong 1 and Prong 3. Thus, both challenges would likely fail to establish the prima facie case. Even if a prima facie case were satisfied with respect to either group, however, it seems likely that the opposing party would not have difficulty satisfying its burden when the burden then shifts. The state has a compelling justification for the exclusion: The health risks are compelling. Further, the Supreme Court has given broad discretion to states in defining what will be the criteria for qualifications, exemptions, and excusal. See, e.g. , Berghuis , 559 U.S. 314.
B. Application to remote jury service                                                          
If jury service were to be held remotely, there are fair-cross-section concerns associated with the technological divide and the digital divide. Not all Americans both possess a computer and have internet access at home and even for those who have both, some either do not know how to use the technology or feel uncomfortable doing so. Generally speaking, it seems that those who do not have a computer and internet will likely be those who are in poverty, and there might then also be data showing a correlation between computer and internet possession and race. As for the second issue, it seems that those who do not know how to use the technology or who feel uncomfortable doing so are likely to be those who are older. Would a fair-cross-section challenge based on the exclusion of these groups be likely to succeed?
Prong 1: Again, age is unlikely to be found to be a “distinctive” group. Socio-economic status, too, as discussed, is unlikely to be found a “distinctive” group—though it’s possible that it could. If there is a correlation between race and computer and internet possession, then Prong 1 would be satisfied because race indeed constitutes a “distinctive” group.
Prong 2: Here, again, it depends on how large the underrepresentation is and also on which test the courts employ. It is conceivable, however, that this prong could be satisfied.
Prong 3: Here, Prong 3 is clearly satisfied, as exclusion due to the use of remote technology for jury service would be exclusion that is a result of the jury mechanism and a rule or practice that state actors control. However, this could be substantially mitigated if courts would supply low-cost videoconferencing devices to all remote jurors. This would also assure that each juror had the same quality of video and audio.
Accordingly, if there is a correlation between race and the technological or digital divide (and if the underrepresentation is substantial enough), it is quite likely that there could be a successful fair-cross-section challenge based on the underrepresentation of a racial group. As for the claim based on the underrepresentation of older individuals, this would depend on whether courts find them to be a distinctive group and it seems unlikely that courts would do so.
Burden shifting: In the event the prima facie case is established by the fair-cross-section challenger, the opposing party could perhaps satisfy its burden of showing that there is a compelling state justification for the exclusion. The justification would arguably be very similar to the justification provided in the context of in-courthouse trials explored above. It might not be quite as easy for the burden to be satisfied in this case, however, because it could perhaps be argued that there are a variety of other ways to bring about jury service without using this method that allegedly brings about underrepresentation—e.g., it could be argued that jury service could instead be carried out in person in courthouses and that social distancing mechanisms could be employed (though, as discussed in Part II.A, there are exclusions and fair-cross-section concerns associated with this strategy as well).
Ultimately, it is unclear whether a fair-cross-section challenge in the context of remote jury service would be successful or unsuccessful. A number of the sub-questions seemingly could come out in either direction—based on what the facts are, based on which tests courts employ, and based on which legal conclusions courts come to.
III. The alternatives: (1) All in person jurors, (2) all remote jurors or (3) a blending of remote and in-person jurors.
So far, it has not been concluded that a fair-cross-section challenge to either of the two options discussed above—jury service by videoconference, and jury service in person during the current pandemic—would necessarily be successful. (The chance of success in the in-person context seems quite low, but the chance of success in the videoconference context seems greater.) As long as there is a chance that a challenge would be successful, however, it would behoove us to explore options that would minimize the chances of a successful challenge. Furthermore, even if there were no risk of exclusions giving rise to a successful challenge , we still want for there to be as few exclusions as possible and for the jury pool to be as inclusive as possible. Inclusiveness of the jury pool benefits both the judicial system and society as a whole. In light of this, what can be done?
A. Juries either fully in-person or fully remote

This option avoids the very real, practical concerns for both court and counsel that are confronted by the blended jury (See Part III.B below) with some jurors being in-person and some remote.
A concern with this approach arises out of the fact that the demographic makeup of the two types of juries would likely be different. This concern about fair-cross-section challenges could be mitigated by having attorneys agree to which type of jury their trial would employ, and this agreement could involve waiving any fair-cross-section challenges. However, while sometimes opposing parties might agree on this score, there might be times where they do not agree and thus where the challenges aren’t waived—and, accordingly, where the “con” described here remains. We elaborate on this topic below in Part III.C.
B. All juries as blended juries
Under this version, jurors would be randomly assigned to jury pools regardless of what choice these jurors have made about whether to serve remotely or in person. As a result, the jurors in every venire (and on any jury panel) could include some jurors who are serving remotely and some who are serving in person.
As for how this proposed blended jury system would work, the jurors who appear in person could all appear in one tile of a videoconference screen, or, if desired, all of the in-person jurors could be given their own tiles on the videoconference screen, even though the in-person jurors are all located in the same room. Various other details would need to be worked out, but there do not appear to be any insurmountable obstacles.
This version would avoid the concerns raised above regarding all in-person or all remote juries. It should of course be noted that there will still be exclusions—as will always be the case regardless of what method is used for obtaining a venire. In particular (and in addition to any exclusions that arise as a result of what source data—e.g., voter registration data, driver’s license data, etc.—is used to determine to whom summonses are sent), there might be some individuals who are among those excluded by both the remote jury service possibility and the in-person (in times of pandemic) possibility. Despite the fact that some individuals will fall into both categories, it seems that giving individuals the choice between the two options will substantially minimize the number of excluded individuals.
Although the practical obstacles to this version might not be insurmountable, there are various concerns that one might have with this approach. Many of these concerns arise out of the way in which this approach sets up two “classes” of jurors. The concerns are as follows:

  •  The judge will have to accommodate both in-person and remote jurors,

  •  Attorneys will perhaps have to take different approaches to how they present evidence visually (and especially with physical objects),

  • The in-person jurors might have more weight given to their opinions during deliberation because they were “there” in the courtroom. They heard all witnesses in person. There might be comments made along the following lines: “Well, I know you couldn’t see it on your screen, but he was really nervous when he walked into the courtroom,” or “He kept looking at his attorney for the answers.” There is a concern that the remote jurors might then defer to the in-person jurors.

  • For voir dire, some attorneys might not like the fact that some jurors (the in-person jurors) might be wearing masks while others (the remote jurors) would not be.
C. All options available
Courts could give attorneys and clients all of the options regarding the makeup of their trial’s jury. Depending on response rates and social distancing in courthouses many judges may be telling attorneys, “If you want an in-person jury, your trial will be approximately six months away. If you want a remote jury, we can hold the trial in three months. If you want a blended jury, the trial will begin at some point between three and six months from now.”
If the two sides agree, the agreement could then constitute a waiver of fair-cross-section challenges. The problem arises when one side disagrees or simply wants to delay since avoiding a trial of any kind is their overall goal. If this occurs, then the judge will be the one to weigh the pros and cons of an in-person jury, a remote jury, or a blended jury. Judges should require an attorney who objects to a certain type of jury to provide the court with a good faith basis for the objection. Only when we see the demographics of those responding to jury summonses will we have an idea about whether we can achieve a representative cross-section in any particular area of the country.
IV. Final Thoughts
Due to the pandemic, the pool of potential jurors is more shallow. Many jurisdictions call jurors for service based on more than one source. For example, many jurisdictions employ not only voter registration lists (or actual voter lists), but also driver’s license lists or taxpayer lists. Drawing from a master list that combines more than one source allows for a more inclusive juror pool. Efforts are being made around the country to deepen the pool. Those efforts include adding people on welfare lists as well as those who have a felony conviction, but have completed their sentence. The deeper the pool, the better the cross-section.
Michael Pressman holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D in philosophy from the University of Southern California. His scholarship bridging the intersection between philosophy and law has been published in several law reviews and journals. Before getting his Ph.D., Michael clerked for the Honorable Nicholas G. Garaufis on the United States District Court for the Eastern District of New York and the Honorable Robert E. Bacharach on the United States Court of Appeals for the Tenth Circuit.
Ti me Considerations in Virtual Trials
By Michael Shammas , Research Fellow
By some rather depressing recent estimates, a COVID-19 vaccine will not be forthcoming until mid-2021 or later. Throughout our summer newsletters, we’ve examined the logistical difficulties that will affect any attempt to conduct trials digitally. Two aspects that have remained unexamined involve time and technology’s effect on human attention.
Indeed, given the brain’s tendency to wander under the best circumstances, what about their usual style should judges alter when conducting trials and hearings over platforms like Zoom? Especially in the case of crucial monologues— e.g. , a judge’s reading of instructions to the jury—is more or less time warranted?
Put simply, how can judges account for the differences between online and physical interaction? 
Psychological Considerations
Someone at home—reclined comfortably on his couch in front of his laptop—may well feel less tension than if he were stuck inside an intimidating-looking courthouse before an intimidating-looking judge. Does this reduced tension make a juror’s mind more or less likely to wander? What about trial elements as crucial as jury instructions?
There’s no easy answer. I suspect, however that jury instructions will be less effective virtually unless the length is substantially shortened to account for the lack of gravity a juror may feel outside the confines of a courthouse. While many assume that more anxiety or stress lowers performance, this is true only to a degree. As an article from the Harvard Business Review reports:
According to what is known as ‘ The Yerkes-Dodson law ,’ performance increases with physiological or mental arousal (stress) but only up to a point. When the level of stress becomes too high, performance decreases. [1]
The Yerkes-Dodson effect suggests that if judges cannot shorten their jury instructions, then they must take extra care to impart to jurors the gravity of their task: To ensure justice is done for a fellow citizen. Plain language jury instructions are well suited to this task.
Otherwise, in order to guard against wandering attention judges will need to: (1) Shorten the typical time allotted to jury instructions; or (2) make the jury instructions available as a video so that jurors whose attention wandered initially have a chance to fill in the gaps in their knowledge and (3) send each juror a set of written jury instructions. 
Lessons from the Educational Context
Teachers, like lawyers and judges, have begun acclimating to online work environments. Their experiences furnish transferable lessons to judges, especially in the jury instructions context. What follows comes from helpful comments provided by students and teachers I spoke with in the course of preparing this piece.
First, one student mentioned (and I can mirror this from my student days) that she pays more attention if she is unable to access the Internet (aside from her online lesson). Any mechanism used for digital trials should therefore, if possible, prevent jurors from accessing other parts of the web. This can be accomplished by asking jurors to temporarily install additional software that tracks Internet usage. (Such software includes keystroke logging software as well as spyware like Net Nanny.) To protect juror privacy, IT professionals should carefully explain how to uninstall such software after a trial ends. The best solution, provided funds are available, would be for the court to supply low-cost tablets to each juror. The tablets would only have videoconferencing capability. Uniform tablets would have the added benefit of each juror having the same size screen and audio experience.
Second, judges may want to alert jurors of research suggesting that taking notes by hand is more effective than taking notes by keyboard. While research on this has been largely limited the educational context, there is no reason it shouldn’t apply more broadly. Taking notes forces students—or jurors—to translate what they hear into their own shorthand, which sharpens attention by forcing jurors to actively translate what is being said (instead of passively typing—perhaps verbatim—what is being said).
Finally, some learning techniques—for example, the Pomodoro Method—suggest that the ideal attention span is twenty-five minutes, with five-minute breaks interspersed to allow the brain time to recharge. [2] While courts are unlikely to do sessions that short, judges should consider time periods of less than an hour, with frequent breaks. A simple internet search of “Zoom fatigue” yields article upon article from authoritative sources that the phenomena is real.[3] Courts would be pushing the limits of jurors and counsel should the total time each day exceed much more than four hours. Fortunately, if jurors know that the court day has been shortened to something less than a full day this may result in a larger, and more diverse, cross-section of people willing to serve.
This topic—technology’s effect on human attention—is not new. Our own Judicial Director, the Honorable Mark Drummond (ret.), has written on the effect of technology on the human brain, noting that even having a cell phone available exerts a negative impact on human attention. Nicholas G. Carr, author of The Shallows , wrote more than ten years ago about the dangers of Internet overuse, finding that the Internet furnishes wider engagement with knowledge at the expense of deep attention—the sort of attention required and developed when we read a book or pay close attention to dueling attorneys in a case.
In the face of COVID-19, questions related to technology and attention possess greater urgency than ever before. Elementary, middle, and high school teachers; professors; scientists; politicians; and judges will all need to think—hard and carefully—about how they should alter their presentation styles when using technological instead of in-person communication. 

[1] Francesca Gino, The Harvard Business Review, Are You Too Stressed to Be Productive? Or Not Stressed Enough? (Apr. 4, 2016), available at .

[2] See Alan Henry, Productivity 101: A Primer to the Pomodoro Technique (Jul. 12, 2019), available at https :// .

[3] Liz Fosslien and Mollie West Duffy, The Harvard Business Review, How to Combat Zoom Fatigue (Apr. 29, 2020), available at .

Michael Elias Shammas holds a B.A., summa cum laude, from Duke University and a J.D., cum laude, from Harvard Law School, where he served as editor-in-chief of the Harvard Law Record, the school’s student newspaper. He has a long-standing interest in the role of juries in American law and democracy. His writing has appeared in outlets ranging from the Huffington Post to the National Law Review. Before his fellowship, he clerked for the Honorable D. Brock Hornby in the United States District Court for the District of Maine after practicing law for nearly two years at a Manhattan law firm. He will start a clerkship with the Honorable Ronald L. Gilman at the United States Court of Appeals for the Sixth Circuit in fall 2020.
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