May Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 5 | Issue 5

May - 2020

Opening Statement

Dear Readers,

The founder of the Civil Jury Project, Steve Susman, was involved in a serious biking accident in Houston. He was knocked unconscious at the scene and continues to be under hospital care. We look forward to his ability to rejoin us in the work that has meant so much to him and to all of us over these past years.

Professor Samuel Issacharoff

Faculty Director

All of us at the Civil Jury Project echo Sam's sentiments for Steve's recovery. In our last newsletter, our focus turned to courts coping with the pandemic. Since then, we have reviewed administrative orders dealing with Covid-19 issues from courts around the country. We have watched and learned from numerous webinars addressing the same topics. We have started to brainstorm model orders for virtual civil jury trials.

So what can the Civil Jury Project do now?

Courts across the country have entered orders determining which cases have priority. We realize—and agree—that civil jury cases probably are at the bottom of the list for most courts. Cases with priority are emergency matters such as orders of protection, in-custody bond hearings and felony cases.

Speedy trial deadlines have been extended, but criminal jury trials will need to resume soon. Many legal scholars question whether a remote criminal jury trial will satisfy the Confrontation Clause. Many studies have been done on the differences in live testimony versus testimony over a video screen.

We hope that we go back to the courthouses soon. However, they will not be the same. Courtroom seating will be modified to allow for social distancing between jurors. The cramped jury boxes will not be used. Jurors will sit in the gallery some distance apart from each other. Large rooms in the courthouse will be turned into the jury deliberation rooms.

So courthouses around the country will, in essence, shrink. The backlog of criminal cases must be heard. Is there anything we can do to help the criminal cases? Where do these issues leave civil jury trials?

It is safe to say that virtual civil trials have fewer constitutional issues. Most issues will be solved if both parties agree to a virtual civil jury trial. Perhaps virtual civil jury trials can lead the way and provide a template should criminal cases need to be heard online in the future.

There could be a middle ground. Courts could adopt a partial virtual trial. Jury selection might be the starting point. Questionnaires can be sent to potential jurors. Court and counsel can confer on excusing those who cannot or should not serve. The remaining venire could be examined remotely. Instead of 100 potential jurors traveling to a courthouse, only those selected will make the trip. A trial then could proceed in person with social distancing in place.

We have assembled a working group so we can model a complete virtual civil jury trial. We are meeting again this week. Our goal is to model what a virtual civil jury trial might look like well before courts start entering orders reinstating civil jury trials.

Ellen Susman, Steve's wife, a former journalist and television producer, alerted us to tonight's episode of the show All Rise . Tonight's (May 4) episode at 9:00 E.T. on CBS will feature a virtual trial. In past issues, we have reported on the television show Bull , which involves a jury consultant.

It is important for jury trial attorneys to know how the legal system is portrayed on television and in the movies. Many studies have been done on what is commonly called the " CSI effect" and to a lesser degree, the effect of shows such as Law & Order and NCIS . With Steve in mind, we will be tuning in and reporting on the episode in our June newsletter.

In this edition, we bring you reporting from one of our research fellows, Michael Pressman, on what may be one of the first virtual bench trials held in the United States. Another research fellow, Michael Shammas, joins Michael Pressman for their joint article on the constitutionality of virtual civil jury trials. We end with a piece by Ross Laguzza on the effects the pandemic might have on juror decision making.

Thank you for your 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 .

We hope to be a resource for courts looking at virtual trials. We invite our readers to send us model orders that are being proposed or are already in place regarding remote advocacy.

Last month, my wife, who is a communications consultant, and I did two webinars for The National Institute for Trial Advocacy (NITA). If you are interested in what we told attorneys about effective remote advocacy those webinars can be found here .

Please stay safe out there and, collectively, we will work to get our jury system running again.

Sincerely,

Hon. Mark A. Drummond (ret.),

Judicial Director

Upcoming Events

Due to the Stay Home orders, all spring events are being rescheduled to the fall.

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Bench Trial by Videoconference

By Michael Pressman , Research Fellow

In various courts across the country, judges have been beginning to conduct civil bench trials over videoconference platforms (such as Zoom). Among the first of such videoconference trials was a one-day civil bench trial conducted by Judge Beau Miller, a state-court judge in the 190th District Court in Harris County, Texas, on Wednesday, April 22nd. The Civil Jury Project took the opportunity to observe the trial, which was livestreamed, and here we briefly report on some of the takeaways from the videoconference trial—which seems unquestionably to have been a success.

The Case

The plaintiff in the case was Adil Ahmed, represented by Richard Daly and John Black of Daly & Black PC, and the defendant was insurer Texas Fair Plan Association, represented by James Old of Hicks Thomas LLP. The trial arose out of an insurance dispute after Plaintiff’s house was damaged during a storm and Defendant refused to pay for repairs, with Defendant arguing that the sum did not exceed the deductible. Plaintiff sued, the appraisal value ultimately exceeded the deductible, and Defendant paid the sums that were found to be owed pursuant to the policy. Defendant, however, did not pay attorney fees or interest and, in the current trial, Plaintiff was seeking to recover the amounts it argued were due to Plaintiff as a result of Defendant’s failure to pay the initial attorney fees and interest. At the close of the one-day trial, Judge Miller requested that the parties submit proposed findings of fact and conclusions of law within two weeks, and he stated that he would issue his opinion thereafter.

Notes regarding trial-by-videoconference

According to Judge Miller, more than 3,000 people watched portions of the livestreamed trial, and observers were able to view the trial by clinking on a link on the Texas Courts website. As for counsel in the trial, who used a different link, they were expected to appear in business attire, which they did.

Viewers were instructed not to record the proceedings. They were told this both via a message on the screen at the beginning of the trial and via text on the webpage of the livestream (located beneath the video window). The message stated: “No person, other than the court reporter, may record a court proceeding without the court’s permission. This prohibition applies to all persons, including members of the public viewing court proceedings on any court’s live stream and to persons with the ability to record any virtual court proceeding. Any person found to be in violation of this order faces contempt proceedings, including a fine of up to $500 and a sentence of confinement for up to six (6) months in jail for each act of contempt of court.”

At the beginning of the proceeding, Judge Miller requested and received consent orally from counsel to conduct the trial being via Zoom. Judge Miller also addressed a variety of other preliminary housekeeping matters pertaining to the videoconference nature of the trial, including that counsel should be especially mindful of the need to not interrupt one another.

The court reporter was a participant in the Zoom conference and had her own window, but participants and observers were unable to see her, as she had covered her camera. She was able to see all of the participants in the trial, and this was necessary for her to carry out her role of transcription.

Exhibits were often shared and shown on the Zoom screen. This was not the only source that the participants had to explore the exhibits being presented and discussed. Parties were required to exchange exhibits and provide copies to both the judge and the court reporter a day before trial, so the judge and court reporter both had paper copies at their disposal during the proceedings. This likely was a helpful measure because, while showing documents on the screen was a useful feature that worked well, documents would often be scrolled through and removed from the screen by the party sharing the exhibits, and it might at times have been difficult for participants to fully keep up without paper copies at their disposal.

There were some interruptions here and there—for example, with the court reporter at times stating that she could not hear what the parties were saying. This, however, did not seem to occur with a greater frequency than one would expect during a trial in a courtroom, where court reporters from time to time ask parties to repeat words or phrases that they missed. Another interruption was an audible message alert on one attorney's computer.

Takeaway

The trial clearly seems to have been a success. Any technological difficulties were minimal, and the trial proceeded smoothly. Although some might have concerns—be they legal or be they practical—regarding whether trial-by-videoconference in civil bench trials can be extended to civil jury trials or to criminal trials, Judge Miller’s trial provides grounds for optimism. It provides optimism for the continued use of videoconference in the context of civil bench trials, and it also provides optimism for the possibility that civil bench trials by videoconference will serve as a springboard for judges to employ videoconference in the contexts of civil jury trials and criminal trials. While these contexts raise additional issues, a successfully conducted civil bench trial via videoconference is a key first step. We express our gratitude to Judge Miller—and to the other judges across the country who have begun to conduct trials via videoconference—for being willing to blaze a new trail forward.

Michael Pressman is a research fellow for the Civil Jury Project.

Memorandum

The Permissibility & Constitutionality of Jury Trial by Videoconference

By Michael Shammas & Michael Pressman , Research Fellows

Below, our research fellows analyze, in the form of a legal memorandum, whether online jury trials are constitutional and permissible under federal and local rules. This question is likely to be met with increasing urgency as the Covid-19 crisis continues.

Question Presented

Whether it is permissible for federal and state judges to conduct jury trials remotely ( e.g. , over videoconferencing platforms like Zoom) even without the consent of the parties.

Brief Answer

“Jury trial by Zoom” is probably both permissible and constitutional in the civil context. It may not be constitutional in the criminal context.

The main challenge is that we are treading on new terrain. It seems no authority exists—in the federal Constitution or most state analogues—prohibiting this; on the other hand, no authority explicitly permits online jury trials, either. Thus, in exploring whether a federal or state appellate court would affirm a verdict arising out of a videoconference jury trial, we must consult analogous precedents involving videoconferencing. Because courts in other contexts (civil and criminal) apply balancing tests, a similar approach would likely be used in the context of videoconference jury trials.

While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment's protections, especially if the Covid-19 pandemic continues longer than expected.

That the highest levels of the Bush administration created a contingency plan to ensure the continued operation of courts during a potential pandemic ( see § 2, infra ) also suggests that online jury trials are permissible.

Background

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?

While no court has yet conducted a full jury trial remotely, there have been moves in this direction. Lawyers have conducted depositions via the Internet, appellate courts have heard oral arguments through videoconferencing software, and trial courts have held some (non-jury) proceedings on the Internet. The list is growing, but the below is representative:

The U.S. District Court for the Southern District of New York has recently begun allowing grand jurors to convene and deliberate via videoconference. (Rule 6 of the Federal Rules of Criminal Procedure does not require that a grand jury be physically located in the same room during deliberations.[1])

As Richard Gabriel writes in Law360, “U.S. District Judge Alison Nathan in Manhattan allowed one of the 11 jurors in the trial of an Iranian banker to deliberate by FaceTime because the juror reported feeling unwell. In light of coronavirus, Judge Nathan stated the court was under ‘extraordinary circumstances’ and in ‘untested waters.’ After being assured the juror would be secluded in an apartment, Judge Nathan stated to the juror, ‘You must think of yourself as present in the jury room.’”[2]

In a statewide order staying all jury trials, Chief Justice of California Tani G. Cantil-Sakauye noted: “Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate.”

An increasing number of judges have conducted bench trials via videoconference. For example, Judge Beau A. Miller, a state-court judge in Houston, Texas, began conducting a bench trial over videoconference on Wednesday, April 22, 2020.

Assuming the trend continues—and it shows no sign of abating—it seems likely we are heading towards conducting full jury trials via videoconference. But would an online civil or criminal jury trial be permissible under federal and state constitutional law? What if one or both parties object?

Analysis

A digital civil jury trial (but perhaps not a digital criminal jury trial) is likely both feasible and constitutional. While one could argue that the lack of any categorical prohibition on jury trials via videoconference is itself dispositive, we explore in what follows ways that the question of the permissibility of videoconferencing has been addressed in contexts other than that of an entire jury trial. Courts’ treatment of videoconferencing’s permissibility in these contexts suggests a similar analysis would apply to entirely remote jury trials, and that such trials would be permissible in federal court and in most state courts.

1. Public Trials

In the United States, justice is done publicly. As the Supreme Court wrote , especially in the criminal context, public trials are “essential” for the accused because “the presence of interested spectators … keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller v. Georgia , 467 U.S. 39, 46 (1984) (internal citations omitted). While the First Amendment does not require that civil jury trials be public, several state courts have stressed that civil trials, no less than criminal ones, should usually be public. The California Supreme Court is representative: “We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court , 20 Cal. 4th 1178, 1210 (1999).

There is no reason why online jury trials cannot be public. First, necessity is the mother of invention; even the most technologically illiterate Americans have by now begun adjusting to the pandemic. “Zoom” is a verb. Second, several states have already begun making digital hearings public—including to citizens without Internet—by setting up rooms in courthouses where citizens can watch online proceedings. [3] Public libraries, courthouses, and other communal buildings could work together to ensure that all Americans have the opportunity to watch trials.

2. The Seventh Amendment & State Equivalents [4]

The Seventh Amendment guarantees every American the right to trial by jury in most civil cases. While the substance of the amendment has never been incorporated, most states comply with the jury trial requirement anyway. As Justin Sarno and Jayme Long write in Law360:

According to the U.S. Supreme Court in Simler v. Connor , “[t]he federal policy favoring jury trials is of historic and continuing strength.” In fact, according to the Federal Rules of Civil Procedure, Rule 38, “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution — or as provided by a federal statute — is preserved to the parties inviolate .” [5]

Given the respect Americans grant the right to a jury trial, the judicial system will experience a huge backlog of civil cases—and perhaps a breakdown in the willingness of plaintiffs to sue—exactly when civic institutions are needed most. So the constitutional question is not just academic but practical. Indeed, one could argue that the Constitution requires judges to find a way to actualize the Seventh Amendment by restoring trial by jury—even, if necessary, by videoconference.

Perhaps recognizing the necessity of a functioning judiciary, even in a pandemic, the federal government has brainstormed contingency plans aimed at keeping courts open during social distancing. The most recent attempt stems from the George W. Bush administration. In March 2007, the U.S. Department of Justice , Office of Justice Programs worked with American University’s School of Public Affairs and the Bureau of Justice Assistance to release a publication titled “Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts.” (The entire text is available here .) While the roadmap is helpful, it is more useful in a logistical sense than in a legal sense. Guidance on constitutional questions regarding the Seventh Amendment (or, indeed, the Sixth Amendment) is nowhere to be seen.

3. The Confrontation Clause

There is a long line of cases addressing the rights the Confrontation Clause provides. See, e.g. , Illinois v. Allen , 397 U.S. 337, 338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”); Kentucky v. Stincer , 482 U.S. 730, 745 (1987) (“The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right … to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.”); United States v. Gordon , 829 F.2d 119, 123 (D.C. Cir. 1987) (stating that Federal Rule of Criminal Procedure 43(a), affording a defendant the right to be present during jury empanelment, “embodies the protections afforded by the Sixth Amendment Confrontation Clause, the due process guarantee of the fifth and fourteenth amendments, and the common law right of presence.”); United States v. Novaton , 271 F.3d 968, 998 (11th Cir. 2001) (holding that a criminal defendant’s constitutional right to be present under the Confrontation Clause and the Fifth Amendment’s Due Process Clause was violated by conducting portions of his trial, including witness examination and the presentation of the parties’ cases-in-chief, when the defendant was absent due to illness and when he protested).

(a) Presence

Cases where a child testified against a defendant via closed-circuit television or another device provide further guidance. See, e.g. , Maryland v. Craig , 497 U.S. 836, 857 (1990). In Craig , the Supreme Court held that the Confrontation Clause does not categorically prohibit child abuse victims from testifying against criminal defendants via one-way closed-circuit television. Id. A key question was whether the defendant was constitutionally “present.” According to Justice O’Connor’s majority opinion, the Confrontation Clause merely embodies a “preference” (rather than a requirement) for face-to-face, in-person confrontation, which can accordingly be limited to satisfy sufficiently important interests. Id.

According to the Craig Court, the Supreme Court’s Confrontation Clause jurisprudence revealed that the Clause is not absolute: “Given our hearsay cases, the word ‘confronted,’ as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit [admitting] any accusatory hearsay statement made by an absent declarant—a declarant who is undoubtedly as much a ‘witness against’ a defendant as one who actually testifies at trial.” Id. at 849. The Court continued: “[A] State’s interests [(here, the physical and psychological well-being of child abuse victims]) may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Id. at 853. The Court said that the “presence” requirement can be satisfied by videoconferencing if the testimony is (1) reliable and (2) if a specific necessity has been shown for videoconferencing. Id. at 855 (“[W]e hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special [( e.g. , videoconferencing)] procedure.”).

Though a criminal case, Craig suggests that traditional constitutional rights (such as a defendant’s presence) can be satisfied or modified if videoconferencing satisfies other sufficiently important interests. The challenges posed by Covid-19— i.e. , the continued operation of the judiciary during a time when in-person jury trials could be deadly—seemingly arise to a sufficiently important level to allow courts to conduct jury trials via videoconference.

Finally, though the right to be present usually arises in the criminal context, it can arise in the civil context as well. In prisoner civil rights cases the prisoner-plaintiffs have a constitutional right of meaningful access to the courts, Bounds v. Smith , 430 U.S. 817, 821 (1977), but there may also be state interests in keeping prisoners confined (and thus not in court) that are rooted in logistical and safety concerns associated with inmate transportation. In these contexts courts have determined whether to allow videoconferencing by employing a balancing test that weighs the interest of the ability to present in-person testimony against the interest (of the state) in keeping a plaintiff-prisoner confined. [6]

(b) Observation

Another takeaway from Craig is that whether a testifying witness can be observed is crucial. Any videoconferencing platform that does not allow for easy observation would be impermissible.

Again, though the Confrontation Clause does not apply to civil jury trials, Craig’s emphasis on observation is a guidepost because allowing jurors to assess witness credibility is as important in weighing evidence in a civil jury trial as it is in a criminal jury trial. [7]

Interestingly, platforms like Zoom may actually make credibility determinations easier because one can see every participant at a glance. [8] Conversely, the performative aspect of Zoom could make credibility determinations harder if witnesses are self-conscious or excessively focused on their appearance (one way to get around this would be to turn off the witnesses ability to see themselves testifying). We are not the first to worry that videoconferencing’s performative aspect can change participants' behavior.

Finally, it is important to note that the diversity of state constitutions means that any analogy to the Confrontation Clause will be inapplicable in some states—especially states whose highest courts disagree with the Supreme Court’s Craig decision due to state constitutional law. See People v. Fitzpatrick , 158 Ill. 2d 360, 365 (1994) (“[W]e conclude that the confrontation clause of the Illinois Constitution provides that a defendant is entitled to a face-to-face confrontation with a witness.”); Commonwealth v. Bergstrom, 524 N.E.2d 366, 371-72 (1988) (“The plain meaning of assuring a defendant the right ‘to meet the witnesses against him face to face’ is that the accused shall not be tried without the presence … of both himself and the witnesses testifying against him.”); but see People v. Phillips , 315 P.3d 136, 152 (2012) (citing Craig and holding that neither the Colorado nor federal constitution render CCTV unconstitutional).

4. Arraignments

Although the lack of physical presence at arraignments might not be unconstitutional, [9] the Federal Rules of Criminal Procedure appear to require physical presence. [10] Even in this context, however, courts have held that videoconferencing may satisfy “presence” for arraignments when necessary. See United States v. Lawrence , 248 F.3d 300, 305 (4th Cir. 2001).

The possibility of videoconferencing satisfying “presence” if necessity is shown is yet another instance of a context that weighs in favor of permitting remote jury trials during a pandemic or other national emergency.

5. Federal Rules of Civil Procedure & State Analogues

Federal Rule of Civil Procedure (FRCP) 43(a) has been used in the civil and criminal context to help courts determine the permissibility (or lack thereof) of CCTV. [11] FRCP 43(a) allows videoconferencing for “good cause in compelling circumstances with appropriate safeguards.” Fed. R. Civ. P. 43(a). “This standard considers the relative cost of transporting the witnesses to court in comparison to the cost for videoconferencing, the ability of the court to use subpoena power over the proposed witnesses, whether the alleged criminal incident occurred overseas, and whether United States officials will be available to swear in witnesses at their location.” [12]

Considering Fed. R. Civ. P. 43(a) along with various state rules of civil procedure, three things are clear: First, both constitutional and procedural questions will arise as videoconferencing is used more and more in courts. Constitutional objections to video-conferenced trials will of course be more common in criminal cases, but procedural concerns are likely to pervade both the civil and criminal context. Accordingly, the FRCP and state analogues must be updated to help lawyers and judges smoothly transition into a uniform procedure for trial by videoconference.

Second, the state rules closely mirror Fed. R. Civ. P. 43(a), so cases analyzing Fed. R. Civ. P. 43(a) will be applicable at the state level as well. Maine’s rule is representative:

I n every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise. The court may, on its own motion or for good cause shown upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence applied in the courts of this state.

Me. R. Civ. P. 43 (emphasis added).

Third, and as apparent from the Maine rule, the majority of the state rules of civil procedure (like the federal rule) require a balancing test. The question of whether trial by videoconference is permissible may therefore differ by state. The balance of interests may make trial via videoconference necessary in New York; it may not do the same in North Dakota.

Conclusion

Courts have demonstrated in other contexts that the determination of whether physical presence can be substituted for by online presence is a determination made through a balancing test. Any decision as to whether civil or criminal jury trials held via videoconference are permissible would likely undergo a similar balancing approach.

Ultimately, in exploring whether courts can conduct entire jury trials by videoconference, we tread on new terrain. There does not appear to be any authority, constitutional or statutory, prohibiting trial by videoconference; conversely, there does not appear to be any authority explicitly permitting it. Nonetheless, decisions concerning the permissibility of videoconferencing in other contexts are useful.

With its weighty constitutional protections, the criminal context will likely be where videoconferencing remains most controversial. Civil jury trials held via videoconference may well be permissible, even when one of the parties does not consent. Although a video-conferenced jury trial is obviously not ideal, any drawbacks (such as the potential for reduced juror attention) can simply be added into the balance of costs and benefits. As courts and wider society become more accustomed to Zoom and similar platforms, these drawbacks will likely be mitigated.

***

[1] Fed. R. Crim. P. 6.

[2] Richard Gabriel, “What Online Jury Trials Could Look Like,” March 26, 2020, available at https://www.law360.com/articles/1257185/what-online-jury-trials-could-look-like .

[3] See, e.g. , Jamiles Lartey, “The Judge Will See You on Zoom, But the Public is Mostly Left Out,” Apr. 13, 2020, available at https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out .

[4] The Supreme Court has said multiple times that states do not have to provide jury trials in civil cases. Most states nonetheless guarantee the right to a civil jury trial, and (whatever the case) they must do so in cases decided under federal law.

[5] Justin Sarno & Jayme Long, “Social Distancing & Right to Jury Trial Must be Reconciled,” Apr. 12, 2020, available at https://www.law360.com/articles/1261476/social-distancing-and-right-to-jury-trial-must-be-reconciled.

[6] Thornton v. Snyder , 428 F.3d 690, 697 (7th Cir. 2005); Jones v. Hamelman , 869 F.2d 1023, 1029-30 (7th Cir. 1989) (using a similar balancing test).

[7] “In sum, we conclude that … the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified , we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.”

Maryland v. Craig , 497 U.S. 836, 857 (1990) (emphasis added).

[8] Some commentators have worried that jurors will pay less attention in an electronically conducted trial than in a “real” trial. Others have worried that—especially in the criminal context—jurors or judges may be more willing to give out harsh penalties (to either party) if they are not in the same room as the parties. These concerns are not without merit.

[9] Valenzuela-Gonzalez v. U.S. Dist. Court for Dist. Of Arizona , 915 F.2d 1276, 1279 (9th Cir. 1990).

[10] Id. ; Fed. R. Crim. P. 43(a).

[11] United States v. Guild , 2008 WL 191184, at *3 (E.D. Va. Jan. 17, 2008) (“Recognizing both the importance of live testimony in a criminal trial and the fact that the Confrontation Clause is not implicated by this testimony, the Court will use Federal Rule of Civil Procedure 43(a) as the threshold showing for the use of videoconferencing in this instance.”)

[12] Daniel Devoe & Sarita Frattaroli, “Videoconferencing in the Courtroom: Benefits, Concerns, and How to Move Forward,” Boston, Mass.: Massachusetts Social Law Library, 2009.

Michael Shammas holds a B.A. from Duke University and a J.D. 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 central role of juries in American law and democracy. His writing has appears 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 Paul, Weiss, Rifkind, Wharton & Garrison LLP. He will begin a clerkship with the Honorable Ronald L. Gilman at the United States Court of Appeals for the Sixth Circuit in fall 2020.

Michael Pressman holds a B.A. and M.A. in philosophy from Stanford University and a J.D. from Stanford Law School. He completed a Ph.D in philosophy at the University of Southern California in 2018. 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 in the United States District Court for the Eastern District of New York and the Honorable Robert E. Barachach in the United States Court of Appeals for the Tenth Circuit.

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The Honorable Brian C. Wimes

United States District Court for the Eastern District of Missouri

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Predicting the Pandemic's Impact on Juror Decision-Making

By Ross P. Laguzza, Contributor

Over the last few weeks, trial lawyers and corporate clients have asked me to estimate the lasting effects of the pandemic on juror perceptions and attitudes. This is a simple question with a complex answer.

While I have been consulting for over 30 years, including significant events such as 9/11 and the economic meltdown, and while I love to get my crystal ball out as much as the next person, neither I nor anyone I know has ever negotiated a pandemic (the last one, as we have been reminded, was in 1918, and though it comes as a shock to my children, I was not around for that one).

The stark reality is that at this point, no one really knows what is going to happen next.

I've asked clients to think about the question of significant effects as a function of time and uncertainty. As depicted in the conceptual chart [above], over time, circumstances related to the pandemic become less uncertain. Any attitudes we might measure now and in coming days will be quite unstable.

As certainty increases over time, attitudes become more stable. For example, early on, there was a great deal of instability and fear, which seemed to grow every day. Businesses closed, jobs ended, toilet paper disappeared, and many of us were plunged into extended family time. As the pandemic crisis unfolded, every day — and in some cases every hour — it seemed that everything changed. Whatever you thought you knew on Monday was no longer true on Tuesday.

As denial gave way to what seemed like daily revelations about the spread and consequences of the virus, changing risk assessments, and new restrictions, it was impossible for the typical person to feel certain about what was happening and what it meant for them. Unlike other natural disasters, which are visible and finite, like a hurricane or earthquake, the pandemic is invisible and constantly evolving and seemingly getting worse and more unpredictable every day.

Measuring juror attitudes when things are so uncertain is not very useful. It's like asking someone in the middle of a car accident how they feel about the price of gas. What people say when they are most fearful and when circumstances are most unstable is interesting in assessing people's current mental status, but it doesn't tell you much about what their mindset will be later.

A recent survey of 8,000 Americans showed an increase in feelings of "solidarity." [1] Will that "fellow feeling" persist once we are back on the roads fighting traffic? It is reasonable to wonder about the long-term stability of that attitude.

However, as things start to settle down, attitudes become more stable, and the "new normal" begins to take shape, it will be interesting to see if: (1) the average juror and the way they see the world has changed in a fundamental way; and (2) these fundamental changes, if any, influence the way they evaluate litigation, and more pertinently, specific types of cases.

It is possible — and even likely — that jurors will be fundamentally changed, but those changes still don't overtly manifest in litigation or are only relevant in specific types of cases. This is part of the complexity because the equation will be multifactorial and won't reduce to convenient aphorisms. In addition, how long any changes actually last as distinct factors before being absorbed into the matrix of daily life will be an empirical question.

For example, we noticed that following the 2007-08 economic meltdown, people reported having been affected, and most had specific ideas about who was to blame. [ Editor's Note: The results of the survey questions are available at this link.]

What is fascinating about these data is that while jurors held strong attitudes and clearly were still angry about the economic collapse, as the worst days receded, these attitudes and experiences typically did not correlate with verdicts — even in cases directly on point. This suggests that while jurors can be changed by significant events, these changes don't always operate in simple and obvious ways in their verdict decisions.

The most important point is that we can't know which attitudes will matter most until we have stability.

Since we are not there yet (and as of this writing, much of the country is still waiting for an accurate projection of how and when the country will restart), it is hard to make an accurate forecast about any of this, but we do know which variables to evaluate when the trial process restarts in earnest.

1. Feelings of Helplessness, Anger and Loss of Control

Generally, people who feel decreased amounts of control in their life tend to gravitate toward plaintiffs. Not only can they identify with the plaintiff as a victim, they see the jury process as a way to effect some control in the world.

Many people may feel for some time that they have no control over their economic well-being. Many will be under severe economic duress for reasons completely out of their control. Some jurors may have increasing doubts about science and medicine. Others may be close to people who actually experienced the virus firsthand.

Some people who internalize this duress will feel helplessness. As Kübler-Ross[2] posited decades ago, people move through distinct grieving stages, which she identified as denial, bargaining, anger, depression and acceptance.

We would expect people who are stuck at the anger stage to be particularly difficult to evaluate during jury selection, and much would depend on with what, or with whom, they are angry. Are they mad at the government, the health care industry, their employers? Are they out for revenge? Do they want to hurt someone? These jurors aren't automatically good for either side.

2. Heroes and Villains

We don't know yet exactly who the heroes and villains will be in the narrative that most jurors come to accept about this pandemic. Right now, health care professionals seem to be the main heroes, but it is too early to say what effect that will have, if any, on how jurors think about cases involving medical professionals.

If, at some point, a pharmaceutical company develops a miracle vaccine in record time, will that mean that jurors have more positive feelings about big pharma in the context of product liability litigation? Or will they now hold the industry to an even higher standard of conduct? If jurors ultimately conclude that they were let down by the local, state or federal government, it may have significant implications for their general disposition toward "the system" and case-specific calls to "fix" it.

3. Emotional Overload

For some people, in the weeks and months following the "restart" into the "new normal," the thought of doing even limited jury service will seem practically and emotionally unfeasible. I suspect many judges will be sympathetic to people saying that they simply cannot afford to miss any work or any opportunities to pursue work.

Some jurors may actually admit to stress exhaustion that makes them unfit for jury duty, and I wouldn't be surprised if these jurors are excused as well. Then again, depending on the rules for the new normal, jurors may be excused simply for admitting to a fear of being in close proximity to other people. This means that, for a while, juries will be far less diverse than they were pre-pandemic.

4. Personal Relevance

In normal times, cases that jurors find personally relevant are processed more deeply. Even cases that are technical and boring are often reframed in a way that makes it more personally interesting for jurors.

However, even in the best of times, jurors will resent lawsuits between big companies over a contract or something that jurors feel could have been settled over a conference table. We expect that for a while, jurors will particularly resent being asked to give their time and attention to a case that seems quite trivial in the context of world upheaval.

Who has the emotional bandwidth to worry about whether this or that company pays or receives millions of dollars when people are jockeying for position at the food bank? This may result in jurors not investing in particular cases and doing whatever they can to "get out of here as fast as possible."

Either party to a lawsuit would be worried about the damage that could be done by jurors who feel this way. On the other hand, cases that are high in personal relevance — for example, a wrongful termination case — may just be too triggering for many.

5. Survival Instinct

There will be those people who, because of positive circumstances, past experience or personality, come through this more robustly than others. They may have been able to play some useful role in helping others during this time, or they may have received help and support when they needed it.

They may have felt a sense of community and participation in efforts to contain the spread of the virus. They may have been isolated from economic consequences. There may be many other reasons why they are generally unscathed, but the important thing is that they have not been damaged and are not under ongoing duress.

It would be wrong to conclude, however, that these people are unchanged. You don't have to be traumatized to experience a change in some aspect of your worldview. Yet, these are the types of people who may seem most like people in the "old normal" and may be least likely to seek or receive relief from jury service.

Implications for Trial

It is important to understand that people will be under continued stress long after we have moved into the new normal part of the continuum. Feelings of resentment and anger may linger for many months, depending on what happens to the job environment. For a variety of reasons, people may find it difficult to sit through any trial for any length of time.

The one thing that is unique about the pandemic is that it has affected just about everyone in some way. As a trial attorney, and more importantly as a human being, you have some insight into what people have had to contend with over these past few weeks and will, in some form or another, contend with for a long time.

In cases where lawyer-directed voir dire is permitted, it will be important to have authentic conversations with prospective jurors in terms of their current status and how it might affect their ability to serve on the jury. If you are open, honest and genuinely interested, people will tell you. The fact that you are interested will also make you seem more trustworthy.

In having this conversation now, or anytime, it is important to avoid trying to convey that "you know just how they feel" or "you went through the same thing" because jurors know that you occupy a different rung on the socioeconomic ladder and that you and they likely do not experience hardship the same way. What is important is that you make them feel safe and valued so they tell you what they are actually feeling.

In cases in which you can't talk directly to the jury, it will be important to persuade the judge to allow a written questionnaire. More judges may be open to this technique under the circumstances. Jurors with remarkable answers could then be interviewed for clarification and additional assessment by the parties.

Two questions I would want to add to any standard battery of questions normally asked of every prospective juror are:

Could you tell me how the pandemic has affected you personally?
Would your personal experience during the pandemic make it hard for you to participate as a juror in this case for any reason?

Anyone who has ever suffered through one of my presentations knows that I believe jury selection is just a tiny fragment of the work necessary to capture the hearts and minds of jurors. No matter what the process and how many strikes are afforded, you eventually run out of strikes before you run out of jurors you want to strike.

This ultimately means that you have to build a narrative that will appeal to jurors who may start out opposed to your position, or at least are unenthusiastic about your perspective. Crafting an effective and persuasive narrative that motivates jurors to find for your client is, in normal times, where most of the heavy lifting gets done.

In the new normal, we expect this will be especially true. For example, if you are defending a product liability case to a post-pandemic jury in the new normal, knowing that your jury has lost faith in the system designed to protect them will be quite important for the defense attorney seeking a creative way to connect with jurors. The bar for corporate conduct may be set higher than ever, but knowing this creates an opportunity to reassure jurors that, at least in some places, the safety system is fully operational.

Often we find that until there is adequate anxiety reduction, jurors find it difficult to attend meaningfully to otherwise important facts and arguments. No matter what the case, the challenge will be to find a moral imperative that makes sense to jurors based on their current thoughts and feelings about what is right and wrong with the world.

In a large and complex corporate contract case, jurors may be agitated, and even offended, by what seems like a petty squabble over technicalities. The challenge here will be to convince jurors that getting the outcome right in a case like that actually, in its own way, makes the world just a bit more predictable and a little less chaotic — where agreements matter and people live up to their word.

Finally, it is important to realize that as the pandemic crisis recedes, the actual lasting effect on juror decision-making in specific cases will be difficult to measure. This certainly was the case for 9/11 and the Great Recession in the first decade of this century.

People will be changed by significant events, but soon these changes become part of the new normal, are integrated with all the other variables that determine a person's worldview, and no longer stand out as individually remarkable. You can bet we will be assessing this all along the way.

Ross P. Laguzza, Ph.D , is a founding partner of R&D Strategic Solutions LLC and trial consultant. This article originally appeared in Law360 (April 22, 2020) and is republished here with permission.