The COVID-19 pandemic and its resultant shutdown have caused some drastic changes to the United States court system. As most legal system operations ground to a halt due to courthouse closures, many in-person civil proceedings were postponed or canceled altogether. Criminal proceedings faced similar issues, while also navigating Sixth Amendment-issued guarantees for speedy criminal trials. Since neither criminal nor civil cases can be postponed indefinitely, the court system had to quickly pivot longstanding operations and begin to embrace new forms of technology to conduct necessary court appearances—most notably being video conferencing.
In March 2020, the Judicial Conference—the administrative policy-making body for the federal court system—announced that district judges could, “under certain circumstances and with the consent of the defendant,” use video or telephone conferencing for certain criminal proceedings. Many federal and state courts have adopted video and audio conferencing technology for pertinent proceedings in the criminal process, such as arraignments, bail applications, and sentencings. In May, a Texas court held the country’s first virtual civil jury trial where jurors rendered a non-binding verdict on an insurance contract dispute in a one-day videoconference. But it wasn’t until recently that a criminal jury trial was conducted fully remotely using video technology.
The Virtual Trial Setup
On August 11, 2020, Judge Nicholas Chu of the Travis County Misdemeanor Court in Austin, Texas presided over a Class C misdemeanor traffic violation jury trial using the video conferencing tool, Zoom. The trial was the first case in U.S. history to be tried in such a manner. The defendant, Calli Kornblau, was charged with speeding in a construction zone, and as part of the virtual trial process, had consented to proceed via Zoom. The trial was conducted entirely through Zoom and broadcasted live on YouTube, with more than 1,000 viewers tuning in to hear trial testimony. The proceeding began at 8:30 am, with the first three hours spent on conducting voir dire of the potential jurors and, almost as importantly, instructing them on how to use Zoom’s video conferencing software. A six-member jury, with one alternate juror, was impaneled and sworn in after 1:00 pm.
Judge Chu pointed out to the jury that they “are making history” but also reminded them to remain attentive to the case, even though they were home and outside the presence of a courtroom. All participants—the judge, prosecutor, defense attorney, defendant, and jurors—were shown on the screen in tiled video feeds. The court had 20 iPads ready to distribute to any potential juror who did not have a device on which to participate and ultimately loaned out four devices.
Zoom Court in Session
Once the trial was underway, it followed the typical format with opening statements, testimony, and closing statements—along with some technological adaptions. Private virtual breakout rooms were available within the platform to allow the defendant to confer with her attorney, and later, for the jurors to deliberate. The prosecutors and defense attorneys published evidence to the jury through a file-sharing service that was displayed on the jurors’ screens.
The prosecutor argued that the defendant was observed driving 51 mph in a 35 mph construction zone. Defense counsel challenged the accuracy of the speed limit and argued that there were no signs present in the area designating it as a construction zone nor were any workers present.
The trial progressed with minimal technical issues, though occasionally the audio and video feeds would freeze. One juror had to be dismissed prior to opening arguments due to poor internet connection but was quickly replaced with the alternate. The jurors began their deliberations shortly before 5:00 pm and returned their guilty verdict in about 30 minutes. Kornblau was given a deferred adjudication and ordered to pay a $50 fine along with any court costs.
The Future of Virtual Trials
The court system is an institution steeped in tradition and a criminal trial by jury is an important constitutional right afforded to all. A trial conducted outside of the courtroom and without the physical presence of a jury is a circumstance that jurists of the past could have never predicted. As to whether criminal trials can be conducted virtually in the long-term is a question that legal experts will continue to ponder.
The constitutional right to a speedy trial is another concern when weighing the logistical issues of virtual trials against the postponements of in-person trials during a pandemic. While a defendant must be afforded the right to a speedy trial, they also have various other constitutional rights to consider that can be impacted by virtual trials. For example, one’s right to confront any witnesses against them may be impeded by video conference. As Daniel Medwed, a professor at Northeastern University School of Law, said, “one concern is that video won’t allow jurors to assess witness’ credibility through demeanor and body language.”
Another obstacle, as noted by Robert Clifford, a commercial litigation attorney in Chicago, is that virtual jury trials require jurors to have access to computers and stable internet connections, which may prevent some people from serving. “You’re not going to get the broad base of representation in the jury pool itself if it’s going to take a socioeconomic level of being equipped with a computer and wifi to even participate so you can hear the virtual witnesses and virtual opening statements. There are some severe limitations we’re confronted with right now,” Clifford explained.
It is inarguable that COVID-19 has changed the function and the speed of the criminal justice system. As virtual trials could potentially become more commonplace, it is incumbent upon all parties involved to consider both the pros and cons of utilizing such technology as a replacement to in-person trials.