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Zooming towards Justice? Is constitutional to have a virtual jury trial?

Texas is the first state in the nation trying to conduct a jury trial via zoom. The plan is to have the jurors all participate by zoom and make a decision about the case. The case is a civil trial against State Farm for not covering certain property damage. The verdict may have little meaning as it is non-binding towards the parties, but the process of trial may change trials forever.

Will zoom jury trials be the future? If is ever allowed for criminal cases, what are the constitutional issues?

Right now Texas is the great experiment. Massachusetts criminal dockets are being overwhelmed as the state has closed courts to the public since March. Chief Justice Gants is hopeful that jury trials will begin again in September, but without a cure or a vaccine for COVID-19, jury trials could be delayed into 2021.

Criminal courts are desperate for an answer.

Along comes zoom a video conferencing application that is exploding in use during the pandemic. Federal courts are using the zoom video conferencing tools to hear detention hearings and other court proceedings. Will trials be next?

It could be a possibility that at some point courts will try to use Zoom to conduct more hearings or even jury trials. There are several problems with using Zoom for criminal jury trials.

1. Right of confrontation

One of the fundamental rights a person has is to confront their accuser. Over the years this right has been defined as requiring a witness to be in the same room as the defendant. In recent years, the courts considered the idea that perhaps certain witnesses should be allowed to testify while not being in the same room as the defendant. Child witnesses who have been a victim of sexual abuse from the defendant were the focus of those cases.

Witnesses not being in the same room hurts a defendant's ability to mount a defense. The jury is tasked with the enormous duty to figure out what witnesses are telling the truth, what to believe and how much of it they should believe. Human interaction and body language are important indicators when deciding truth. With most people just recently being exposed to video conferencing, their ability to interact and determine a person's credibility online is not the same as in real life.

2. Right to participate in own defense

A defendant has a right to participate in their own defense. This includes the interaction with their attorney during a trial. If all participants are on zoom, the client and attorney cannot interact freely. Zoom does have break out rooms, but it doesn't allow the attorney and client to exchange ideas in real time while the trial is happening.

When in the same room, the attorney and client can exchange documents, pass notes, and talk about certain testimony. The confidentiality and security of zoom has also been questioned recently. Zoom has a recording feature. Will the attorney-client conversation be recorded by "accident?"

3. Higher rates of conviction, less likely to be released and harsher punishments

When defendants are being arraigned virtually the amount of bail is higher and the defendant is less likely to be released. When defendants are sentenced online, they are more likely to be given a longer sentence. If this trend holds for all court proceedings, a defendant would be more likely convicted with virtual juries.

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