Dear Readers,
Much has happened since our last newsletter. Our working groups have completed their work on virtual trial protocols and we have conducted our first virtual mock jury trial.
As outlined in our last newsletter, a jury trial divides into three natural stages—jury selection, trial and deliberations. Our working groups were similarly divided, and we bring you their reports and suggested protocols. These protocols will be posted on our website. We will update these protocols as we gain new knowledge, courts report on their experiences and technology advances. The protocols offer various options for courts to consider. One size does not fit all.
The splitting of a trial into three pieces may help with the criminal jury trial backlog. If virtual jury trials do not pass Constitutional muster for the trial phase, perhaps virtual jury selection or deliberation will.
Michael Pressman, one of our research fellows, reports on our virtual mock trial held this last Thursday. There is an article from me on best practices for online advocacy.
We end with a submission we find uplifting. Professors Andrés Harfuch and Juan Sebastián Lloret reached out to us to report on efforts in Argentina to install the civil jury system.
Thank you for yo
ur support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our
website
. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or
here
.
Please stay safe out there and, collectively, we will work to get our jury system running again.
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Virtual Jury Trial Protocols
Links to Protocols
The protocols above are the work of trial lawyers, academics and judges. This group was assembled by our Executive Director, Steve Susman. There are many people to thank.
The chairs for the Jury Selection Protocols are Judge Lorna Propes (Cir. Ct. Cook Cnty, IL) and Judge William Young (U.S. Dist. Ct. MA).
The chair for Trial Protocols is Chief Judge Jack Tuter (17th Cir. FL) along with the following judges from that circuit: Carlos Augusto Rodriguez, Carol-Lisa Phillips, Patti Henning, Sandra Perlman, William Haury, David Haimes and Jeffrey Levenson.
The 17th Judicial Circuit in Florida with the ABOTA chapter have been leaders in modeling virtual trials. The Circuit has posted their model virtual trials and their work can be found
here
. This Project has benefited from the groundwork they have laid and the Trial Protocols are outlined in the Blueprint assembled by ABOTA member Mitchell A. Chester. ABOTA member Jeff Adelman assisted with the Circuit’s model virtual trials.
Mitchell A. Chester has worked tirelessly on these protocols for not only his Circuit, but also for the Project. We thank him for allowing us to publish his work here, which will benefit courts around the country.
The chairs for Virtual Jury Deliberations are Chief Judge Lee Rosenthal (U.S. Dist. Ct. TX) and Judge J. Thomas Marten (U.S. Dist. Ct. KS).
All of the working groups benefited from insights provided by Professor Dan Capra of Fordham University and Professors Steven Gensler and Liesa Richter from the University of Oklahoma.
Our trial team members were counsel, Stephanie Parker, Jennifer Weizenecker and Alex Galvin from the Atlanta office of Jones Day, Eric Rosen of Rosen Injury Law and Anthony Quackenbush of The Quackenbush Law Firm.
Judge Brendan Sheehan (Cuyahoga Cnty. Ct. OH) was not only a member of our working group, but also volunteered his court for our model trial. We owe a great debt to him and the team he assembled to make this happen. The team members in Ohio who assisted with our mock virtual trial are Andrea Kinast, Thomas Arnaut, Jeffrey Butler, Greg Popovich and Darren Toms.
Our research fellows Michael Pressman and Michael Shammas assisted all groups and our Academic Director, Professor Samuel Issacharoff, assisted with securing NYU Law students as jurors. Our administrative assistant, Kaitlin Villanueva provided administrative support as well as worked on the jury survey with Lindsay Kendrick, Dean of Students at NYU School of Law.
We thank the National Institute for Trial Advocacy for supplying the case file.
We thank NYU Law students for their overwhelming response to our request for jurors.
An additional resource I find of great value are the webinars offered by the National Center for State Courts (NCSC). Its webinar on May 22 covered the first virtual summary jury trial and can be found
here
.
I apologize if I have missed anyone. An additional reason for the length of this thank you is to give a sense of the number of people involved in the process of trying to make virtual trials an effective alternative to in person trials.
All of the successes are due to the work of those above and I take full responsibility for any lapses.
They all have gone the extra mile and have been a pleasure to work with.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Judicial Director
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Due to the Stay Home orders, all spring and summer events are being rescheduled to the fall.
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A Report on the Civil Jury Project’s Mock Zoom Jury Trial
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By
Michael Pressman
, Research Fellow
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Last Thursday, the Civil Jury Project—with the help of many contributors—conducted a mock jury trial over Zoom. This endeavor had several goals: (1) demonstrating to judges and attorneys across the country that jury trials can successfully be carried out over Zoom, (2) showcasing how various specific features of jury trials can work on Zoom (e.g., side bars; in camera voir dire; jury questions during deliberation), (3) learning by doing: observing what went well and what did not go well, and (4) relatedly, learning by hearing from all participants involved (especially the jurors): hearing what, from their perspective, went well and what could be improved. This report provides an overview of how we carried out the process and what our findings were. By all accounts, the exercise was a great success. This is not only because it ran smoothly, but also because of everything it enabled us to learn about ways in which the process could be tweaked and improved.
If counsel choose the dual monitor mode in Zoom, one monitor will display the tile view with all participants who have their video activated on the screen. The other monitor will show each speaker, by themselves, on full screen. We think the best practice is for both court and counsel to have the dual monitor setup.
I. The process:
A. Pretrial:
We initially sent out an email to the NYU Law student body soliciting potential jurors for the exercise. Ninety-two people replied stating that they would be interested in being jurors. Once the specific date and time were set, the number of potential jurors who were available fell to seventy-two. These seventy-two prospective jurors were then sent a basic questionnaire and they were asked to fill it out based not on themselves, but based on a persona (of someone whom they knew) that they would assume for the purposes of the exercise. This questionnaire included some generic questions as well as a few questions pertaining to the subject matter of the specific case. Once we had all of the questionnaire responses, we selected twelve potential jurors to be in our venire (and we picked these twelve in a way such that the personas in the twelve-person venire would represent—as much as possible—a fair cross-section of the population). With this venire of twelve potential jurors set, we were then ready for the day in (virtual) court.
Each juror was given a Zoom background to use that included the word “juror” in large letters at the top of his or her tile. Similarly, the plaintiff’s attorney, defendant’s attorney, and the witnesses had backgrounds that, in large letters, stated their role in the trial (e.g., “witness”).
B. The trial:
1. Jury selection
The trial-day began with a welcome and introduction by the judge, and the court then proceeded to carry out jury selection. The judge swore the members of the venire, and lawyer-run voir dire then began—with both sides questioning the members of the venire. At one point, a juror said she did not feel comfortable answering a question in front of the entire venire, and the court then carried out in-camera voir dire of this juror—with the judge, the attorneys, and this juror all being moved into a Zoom breakout room so that the juror could answer the question outside of the presence of the remainder of the venire. (We had asked the juror before the trial to say this so that we could showcase this aspect of Zoom’s capabilities.) Once this concluded, everyone returned to the main courtroom. The judge and the attorneys also convened at one point for a side bar (in a Zoom breakout room). No jurors were excused for cause, but both sides exercised one peremptory strike. This left the court with ten remaining jurors; four of these jurors were excused, and we then had a panel of six jurors for the trial.
2. Opening statements
The attorneys both gave their opening statements and they employed the feature of Zoom where they could show slides from their computer screens. Jurors later reported that this “share screen” function was very helpful—during opening statements, during examinations of witnesses, and during closing arguments.
3. Examinations of witnesses
Both sides put on one witness, and for each witness there was direct examination and cross examination. The attorneys used the “share screen” function during their examinations. At one point, there was a side bar to hear an objection, and the court technology clerk placed the judge and the two attorneys in a separate room to carry out the side bar.
4. Closing arguments
As with opening arguments, the attorneys made use of the “share screen” function.
5. Deliberations
After closing arguments, the judge read the jury instructions, and the jurors (and the bailiff) were then placed in the jury deliberations room (a Zoom breakout room). I played the role of bailiff. For the purpose of this exercise, I listened, with their permission, to the jurors’ deliberations so I could report on this aspect of the trial.
For the most part, everything proceeded without anything noteworthy occurring. They began by selecting a foreperson, and then they started to share their thoughts with each other, one by one. Then, after everyone had had a chance to give their initial thoughts, further back-and-forth discussions occurred. Among the things they considered was whether they should engage in jury nullification, but they decided not to do so. Deliberations proceeded extremely smoothly. Nobody was talking over anyone else and it proceeded as seamlessly as would a conversation in any brick-and-mortar jury deliberation room.
At one point, the jurors told me that they had a question for the judge. They provided the question and I returned to the main courtroom and provide the question to the judge. Once a decision was made about what the answer should be, I then returned to the room with the jurors and told them what the judge’s answer was. (We had asked the jurors before the trial to ask a question of the judge during deliberations so that we could showcase this aspect of Zoom’s capabilities.)
Finally, a vote was taken, and a unanimous verdict was reached. The bailiff then returned to the courtroom to tell the judge that a verdict had been reached. The judge then brought the jurors back into the courtroom, had the foreman read the verdict, and polled the jurors regarding the verdict.
In an actual virtual trial, the bailiff could monitor deliberations with the video on and the audio off to assure confidentiality. Unlike a deliberation room in an actual courthouse, the virtual deliberation room will need to be monitored to assure that no juror “leaves” the room for an extended period (except for agreed breaks) nor does anything prohibited, such as consume alcohol.
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6. Debriefing session
After the trial concluded, there was a debriefing session in which all of the participants discussed the mock trial that had just concluded. In particular, this focused on asking the jurors about their thoughts about the experience.
II. Feedback
The feedback from the jurors during the debriefing session after the conclusion of the trial (which is on the video as well) provided extremely valuable information regarding what went well and what could be improved. The feedback was overwhelmingly positive, and they thought that the trial was unquestionably a success. Despite the fact that their feedback was overwhelmingly positive, the following bullet points sketch only the jurors’ constructive suggestions for improvement. (After all, the various things that went well can for the most part be gleaned from the video of the trial as well as from the above descriptions.)
- They would have liked more guidance and instruction about what to expect (e.g., how long was the trial expected to take, could/should they have water with them to drink, could/should they have pen and paper with them to take notes). They also would have liked a more comprehensive explanation about what to expect about other aspects of the process.
- Sometimes when an exhibit was being shown on the screen, the jurors would only be able to see the video tiles for some of the court participants rather than all of them; they would have liked to be able to continue to see the video tiles of all participants even when exhibits were being shown.
- They thought it would have been helpful to have been told explicitly what the rules were in terms of whether they could contact other jurors, whether they could be on their phones, whether they could use chat with their fellow jurors (be it by the chat function on Zoom or otherwise).
- One juror had Zoom crash twice during voir dire. This juror thought it would be good if the jurors were given procedures in advance about how to reconnect and how to handle technological malfunctions like this. She would have felt less stressed about the situation if there were clear protocols about how to handle these situations.
- One juror wanted to have a closer view of the judge in the judge’s video tile. As is, the shot of the judge in our trial was usually a more distant one than were the views of other participants. She felt more connected to the judge and to the proceedings when the judge’s shot was more of a close-up. [There are, however, considerations that cut in the other direction; accordingly, deciding how close or distant the shot of the judge should be is a question to be further explored.]
- One juror thought that it was harder to focus for long periods of time over Zoom than it would be in person. He found that his focus would drift. He thought that it was particularly crucial over Zoom to strategically use breaks to keep everyone focused. He thought that more frequent breaks would likely be needed over Zoom than in a trial in a courthouse.
- One witness, when he initially logged in, had his tile label show his email address. This was quickly removed, but this is something that we would want to make sure does not happen during a trial—to prevent the sharing of information that was not meant to be shared.
- One juror thought that the judge should say and emphasize how important it is for the jurors to stay focused and to not do other things on the internet, with their phones, or whatever else. Because without having this impressed upon them, it might be easy for a juror to stray. This is a greater concern over Zoom than in a courtroom.
III. Additional ideas and thoughts
A. Juror bonding
There was a question of whether the jurors were able to bond with each other and about how a Zoom trial might be different from a courthouse trial in that the jurors would not be able to bond during the trial over lunch, in the jury room, etc. This was raised as a question about whether it would affect deliberations and also about how it might generally affect the juror experience.
One juror said that he did think that, at the beginning of deliberations, things were a bit quieter than they might have been after an in-person trial because there had not been an opportunity to get to know each other.
The jurors, judge, and attorneys came up with the following idea that could be implemented for Zoom trials that could be used to help bring about at least some of the bonding that would be occurring in a courthouse trial: Whenever there is a break or a side bar, the jurors could be placed in the juror deliberation room (a breakout room on Zoom), and they could then have the opportunity to speak with each other and get to know each other if they chose to do so. If placed in the jury room, their conversations would then be among themselves in a way that they wouldn’t be if they remained in the main courtroom in Zoom, where others in the courtroom—and even the public—could hear their conversations.
The consensus among those during the debriefing session was that this could be a very good idea for jury trials going forward.
B. Observing juror demeanor
The judge noted that he was easily able to observe faces of the jurors during the trial and that there were a few occasions where he noticed that a juror was distracted or appeared to be looking at something other than the proceedings. He noted that the fact that this was quite apparent boded well for the ability of a judge or court staff to keep tabs on jurors and, if it seemed as though there was a distracted juror, to interject in proceedings with reminders of their duty to focus on the proceedings.
IV. Conclusion
In sum, the mock jury trial was a great success, and we thank everyone that contributed to making it the success that it was. In preparing for it, in carrying it out, and in hearing the feedback from the participants (especially the jurors), we learned an enormous amount about what worked well and what can be improved upon. We hope that this mock trial inspires confidence in jury trials by videoconference—in judges and in attorneys alike—and we hope that it can serve as a blueprint for how jury trials can be conducted over such a platform. We also hope that the legal community can learn from the constructive feedback we received so that, when a jury trial is conducted by videoconference, it incorporates and applies the insights that we gained during our mock trial.
Finally, we hope that videoconferencing software companies will see our need for a user-friendly, intuitive platform that will allow the judges themselves to move jurors, attorneys and witnesses in and out of the various “rooms” without needing additional tech personnel to perform those functions. The judge having to tell the tech person to do these actions is just an additional step that, with a better platform, would be unnecessary and would help make the trial more seamless.
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Michael Pressman is a research fellow for the Civil Jury Project.
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The Dawn of the Civil Jury in Argentina
By
Andrés Harfuch
and
Juan Sebastián Lloret
, Contributors
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Trial by jury was guaranteed in Argentina since 1853, when three different sections of our country’s constitution established jury trial not only for criminal trials but also for other branches of the law. As with every Constitution of the Latin American countries during the XIX century, it was strongly inspired by the USA Constitution of 1787 and the ideals of the French Revolution, where trial by jury was a main feature of the Judicial Power.
Unfortunately, trial by jury laid dormant in Argentina for more than a century. But after 160 long years of non-compliance with the Argentine Constitution`s triple trial by jury mandate, since 2011 several provinces, including the largest one, Buenos Aires, have successfully introduced jury trials for criminal cases and that number has been growing.
This cultural challenge was mainly possible thanks to two renowned nongovernmental organizations, to which we belong. The Institute of Comparative Studies in Criminal and Social Sciences (INECIP) and the Argentine Association of Trial by Jury (AAJJ), were formed by prestigious legal scholars, judges, attorneys, law professors and students. They have led the transformation of the Judiciary -not only in Argentina, but also in all of Latin America- from inquisitorial to adversarial approaches and to public trials.
INECIP and AAJJ´s historical roots can be found in the resurgence of Latin American democracy in the 1980´s, after decades of bloody military dictatorships and their aftermath of thousands of deaths and disappearances. It was a distressing period for Latin America and a time of uncertainty. At the political level, the new democracies were extremely fragile, beset by serious economic problems, unresolved social tensions, and governments shadowed by still powerful former dictators. At the judicial level, inquisitorial procedures remained fully in place. All Latin American judicial systems - heirs to the medieval culture of civil law in Spain, France and Portugal - were characterized by secrecy, written procedures, obstructionist formalities, lack of transparency, no public trials, endless delays, and an unchecked concentration of power in the judge.
In the 20th century, the judicial systems of Latin America functioned as in the feudal era, threatening the development of the nascent republican democracies. In this context, INECIP and AAJJ embarked on a mission to radically transform Latin American judicial systems, starting with criminal justice. Their aim was to consolidate a democratic judiciary that respects the rights of defendants and the public through oral and public trials and the implementation of an adversarial and accusatory system.
Eradicating the inquisitorial approach from the legal systems of Argentina and Latin America was (and still is) an enormous enterprise. It is important to recognize how dramatic this change has been and how much effort has been invested to make the abstract idea a reality. The most outstanding development that INECIP and AAJJ were able to foster in the reform process has occurred in Argentina: the development of trial by jury in criminal matters, embedded in a newly constructed adversary system with a democratic judiciary. Against the backdrop of an initially hostile legal culture, jury trials for criminal cases today flourish in Argentina and are attracting attention even the US. Prestigious American professors, like Valerie Hans, Shari Diamond, John Gastil and Paula Hannaford-Agor have come multiple times and are conducting empirical research on Argentine juries.
Argentina was able to consolidate the trial by jury of its Constitution with almost all the characteristics of common law: twelve jurors, voir dire with peremptories, legal instructions from the judge, a unanimous verdict in many jurisdictions, a final verdict and a hung jury. But it also established Argentina’s own unique characteristics for the jury: gender parity (every Argentine jury has equal numbers of men and women) and the requirement of indigenous participation in the panel of twelve jurors.
Currently, nine provinces have jury trials for criminal cases. Buenos Aires, Neuquén, Chaco, Río Negro, and Mendoza are operating jury systems while Entre Ríos, San Juan, and Chubut will implement them this year. Likewise, in the provinces of Santa Fe, Jujuy and Santa Cruz, jury bills are being debated in the local legislatures.
Thanks to the resounding success of the criminal jury in the country, INECIP and AAJJ started phase two of the judicial reform:
the civil jury.
We have always envisioned the civil jury - at least for some important cases like class actions, collective consumers’ rights, and some tort cases - as the only proceeding that could guarantee a fair and public trial for civil matters.
As in every civil law country (even in continental Europe), civil proceedings have no hearings whatsoever. There has never been a public civil trial in Argentina, with opening and closing statements, direct and cross examination of witnesses and experts, and the presence of public in the courtroom. The whole process is by writing and conducted solely by a bench judge with overwhelming powers.
There was a remarkable development in Mendoza in April. Governor Rodolfo Suárez gave his first public address before a joint session of the Mendoza Legislature. There he announced that he plans to implement trial by jury in civil cases with the aim of expanding citizen participation, starting with the acts of corruption due to the extinction of the civil domain. So cases such as a plaintiff suing corrupt ex-public officials for irregularities in the delivery of social housing could be decided by a twelve person, unanimous civil jury.
It is an extraordinary innovation that deserves full support and that will put Mendoza and Argentina at the forefront of Latin America. If we do succeed, it is going to be a major cultural change: a real turning point for civil procedure. Despite all obstacles and against all odds, Argentina is closer than ever to achieve the civil jury trials our Framers dreamt of so many years ago.
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Andrés Harfuch, PhD
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is a professor of law at the University of Buenos Aires; the director of INECIP's Jury Center; and Vice President of AAJJ.
Juan Sebastián Lloret
is a professor of law at the University of Salta.
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Look out for the July Newsletter!
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Tune in next month for more articles by our judicial and academic advisors.
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Stephen Susman
Executive Director
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Michael Pressman
Research Fellow
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Samuel Issacharoff
Faculty Director
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Michael Elias Shammas
Research Fellow
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Mark Drummond
Judicial Director
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Kaitlin Villanueva
Admin. Assistant
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