By Dennis Devine
COVID-19 has dominated all facets of life in the last four months. How courts will handle jury trials in the coming months has been a topic of particular interest to the legal community.
Those with extensive courtroom experience have their informed opinions—people like veteran trial attorney Victor Vital and legal psychologist Dr. Dennis Stolle. “To add to the challenge,” notes Victor Vital, “the legal system’s response to COVID is coinciding with the nation-wide reckoning with longstanding racial and social justice issues.” Scientific data on community reaction are starting to emerge as well. For instance, the National Center for State Courts (NCSC) recently surveyed 1,000 U.S. adults regarding their feelings about jury duty during the pandemic. Let’s step back and consider how COVID will likely affect jury trials in 2020 and beyond.
Business as usual (in the pre-pandemic sense) is not an option for courts in the foreseeable future. Instead, courts can essentially adopt one of two general approaches to conducting jury trials in the coming months.
First, courts can resume holding in-person jury trials using modified courtroom procedures to maximize the safety of those involved. These changes include such things as checking temperatures, employing social distancing, using plexiglass shields, and wearing masks.
Second, courts can arrange to hold jury trials (or some portion of them, such as voir dire) in a decentralized (i.e., “remote”) manner via the internet. A Texas court was the first to do this in May when it held a one-day summary jury trial with all jurors connecting to the proceeding via Zoom (https://fortune.com/2020/05/23/texas-court-jury-trial-videoconferencing/).
Dennis Stolle has over two decades of experience consulting with clients headed to trial. He notes, “In terms of how rapidly we see the adoption of online trials, much may depend on the power of agreement. A lot can be accomplished when both sides agree. If both sides agree to alternative procedures, whether online or however, the chances of it happening go way up. When one party wants an alternative procedure and the other side objects, it’s a lot less likely to happen.”
One thing is for sure, though: Either approach will bring changes.
Changes Related to the Jurors
COVID-related procedural changes will affect who ends up in the jury. Procedural modifications will increase the representation of some demographic groups on juries and decrease that of others. But the resulting impact on jury composition will depend on which trial approach a court adopts.
Conducting in-person jury trials will certainly decrease the representation of one large demographic group—older Americans. The risk of serious illness or death from COVID-19 increases with age, and 80% of COVID-19 deaths have occurred among adults aged 65 years and older according to the CDC. Unsurprisingly, older respondents were notably less comfortable reporting for jury duty and serving as an in-person juror in the recent NCSC study. Older adults should be more likely to self-select out of the juror summons process via statutory exemption or by choosing to ignore a juror summons for health reasons. And older folks who do show up for jury duty may be more likely to be dismissed for cause over well-intentioned concern for their safety.
Alternatively, holding jury trials in a remote format will increase the presence of some underrepresented groups relative to traditional in-person jury trials. This includes people with physical or medical conditions that limit their attendance. It also includes those with primary-care responsibility for dependent children or elders. Fifty-five percent of respondents to the NCSC survey reported at least one significant obstacle to their serving as an in-person juror. The greater flexibility afforded by remote jury trials may also allow greater participation by people with full-time jobs.
At the same time, remote jury trials will also reduce the representation of people without the technical means to participate—e.g., those without home internet access and a computer with a webcam, or at least a smartphone. And, as trial attorney Victor Vital points out, enduring demographic disparities with respect to income will mean that remote trials involve fewer persons of color in the venire. Courts can arrange to provide remote access to the public at designated locations, but remote jury trials will still likely draw disproportionately on affluent members of the community.
And COVID has likely affected the attitudes of everyone who reports for jury duty. The heightened uncertainty and stress of life during the pandemic has probably changed everyone to some extent. It is emotionally taxing to live with prolonged anxiety and fear over one’s personal safety, and even worse watching friends and family fall victim to the virus. In the NCSC study, the mean rating for a question about comfort serving on a jury was a middling 5.1 on a 10-point scale—below almost every other social activity listed. One well-known social psychological theory proposes that people are more sober, realistic, and accurate in their decision making when reminded of their mortality—and COVID has certainly done that. Such a mindset could affect numerical judgments involving liability, responsibility, or the appropriate amount of damages to award.
Changes Related to the Trial
In-person jury trials will also likely feature many people wearing masks—judges, attorneys, witnesses, and fellow jurors. Wearing masks is a controversial subject, eliciting strong resistance from some well-known individuals. This reaction may be due in part to negative stereotypes (e.g., those wearing masks are sick, weak, or acting nefariously). And on top of this masks may produce subconscious annoyance in all jurors by inhibiting their ability to read facial cues—a cornerstone of human interaction. COVID may thus reduce the perceived credibility of witnesses who spend much of their time masked in the presence of the jury.
Victor Vital anticipates a tension in the courtroom over masks. “Attorneys will want to be able to see faces so they can assess demeanor, but judges will be inclined to emphasize health and safety. There will need to be a balance.” He foresees the most common scenario involving extensive use of plexiglass screens and mask-wearing by court personnel but not necessarily witnesses—at least not when on the stand.
COVID-era jury trials in any form will also be less smooth and efficient than before—at least in the early stages of adoption. Jury trials were already notorious for delays and disruptions; these will almost certainly be even more frequent as courts proceed up the learning curve associated with new procedures. Delays and disruptions will in turn cause frustration. So jurors in a pandemic-style jury trial are more likely to be in a negative mental state during trials than jurors in a pre-COVID trial. Whether increased negativity benefits one side or the other may well depend on the trial. Certainly if extended delay could be attributed primarily to one party, jurors might hold it against them.
Changes Related to Deliberation
Jury deliberations during the pandemic will also be different. For one, they will likely be shorter. In-person deliberations at a courthouse may be attenuated by a desire (conscious or otherwise) to leave a risky environment as soon as possible. Remote deliberations conducted by videoconferencing may also be truncated by the fatigue known to arise in that format. Thus there is a risk that COVID-era juries might skimp on their review of the evidence. Accordingly, courts may wish to consider instructing their remote juries to be mindful of avoiding this.
The structure and content of remote deliberations may be quite different as well. Videoconferencing software is not conducive to side conversations and will serve to limit the discussion to one primary thread. This would be a good thing, but remote jurors will also face persistent distractions from their home environment (e.g., parading cats or break-away children). And research on computer-mediated group decision making also suggests virtual groups are more egalitarian than face-to-face groups. Many nonverbal cues that convey social status will be less salient during remote deliberations. And it is more difficult for angry or aggressive jurors to intimidate through a small window on someone else’s monitor. This greater “psychological distance” in remote juries may have the effect of increasing the participation rate and influence of individuals from social groups that tend to have less voice in the typical jury deliberation (e.g., people of color and younger jurors).
Back to the Future
Given the many ripples, the question that perhaps looms largest may be the one we started with: Which approach to jury trials will courts adopt—modified in-person or remote? If the general public could choose, it would likely be remote. There is no doubt that remote trials are safer and more convenient for most would-be jurors. When asked about their relative comfort with the two approaches, 44% of NCSC survey respondents said they would prefer serving as a juror in a remote trial, whereas only about half as many (23%) said they would be more comfortable with an in-person trial (with 32% indicating no difference in comfort level by approach).
But Victor Vital predicts judges will prefer to modify procedures so that trials can be conducted in person. “Judges will be more comfortable with in-person jury trials because they are more familiar and allow the court to retain more control over the proceedings.”
Ultimately, though, it’s clear both formats will be used to some extent. As Dennis Stolle notes, “It would be shortsighted to view online trials as something that will disappear when the COVID situation improves. The legal world was already moving in this direction. The pandemic has just sped up the process.”
Dennis Devine, PhD, MJ
Dennis Devine is an organizational psychologist and litigation consultant with ThemeVision LLC.
He is the author of Jury Decision Making: The State of the Science (2012), a book that summarizes and integrates the scientific research on juries.
Dennis P. Stolle, PhD, JD
Dennis Stolle is a legal psychologist, attorney, and President of ThemeVision LLC. He has over 20 years of experience working as a trial consultant.
Victor Vidal, JD
Victor Vital is a trial attorney and partner at Barnes & Thornburg, LLP. He has tried more than 100 cases over two decades of practice. His ability to absorb complex subject matter and present it persuasively to diverse juries makes him well-suited for all types of high-stakes trials.