Jury trials conducted by Zoom can lead to biased juries, distractions, and other dangers, lawyers say

• The COVID-19 pandemic has upended the US legal system.
• Many courts have shifted to virtual operations, including virtual jury trials in some US states.
• But lawyers say they open the door to many issues, from biased juries to technical glitches.

"It feels like you're more on TV," said Chad Moore, a New Brunswick, New Jersey, partner at the law firm Hoagland, Longo, Moran, Dunst & Doukas.

In January, the New Jersey Supreme Court authorized virtual jury trials for civil cases in the state. For now, participation is optional and dependent on agreement from all involved parties. But beginning in April, participation in them is mandatory.

Courts across the US have struggled to adapt to the COVID-19 pandemic, often leading to suspended and delayed court proceedings. While some jurisdictions have or are preparing to bring jurors back to courtrooms, others have looked toward virtual options as a way to keep the legal system moving during the pandemic.

But lawyers who spoke to Insider said "Zoom court," and in particular virtual jury trials, present a slew of issues for them, their clients, and jurors.

"You're preparing for what is presented through the Zoom lens," Moore said. "Whereas, when you were in person, there's a lot more to read there. You're in an open court; there's a lot of body language going on. You can get a sense and a feel for how the jury is viewing a portion of the case. You don't have that on Zoom."

Online juries raise questions about bias and diversity

Moore said New Jersey courts had taken steps to attempt to alleviate these fears by providing technology to those asked to serve on juries who didn't have access to needed equipment to connect virtually, including computers or high-speed internet.

Some selected jurors also had the option of participating in the virtual jury from an area in the court itself if they weren't able to participate from home, he said.

But not all virtual juries have adopted the same approach. When Anthony Elman, a Chicago attorney, tried a personal injury car accident case virtually in Illinois in February, he said jurors were excluded during the jury selection process if they didn't have access to a tablet, computer, or high-speed internet to log in to the virtual courtroom.

"What my fear was before the trial was that the jury would mostly be rich white people," Elman told Insider.
"Because when the jurors are asked questions from the court about their qualifications to serve, they're given a lot of pre-qualification questions such as: Do you own a tablet? Do you own a computer? Do you have Wi-Fi? And a lot of low-income people are going to answer: No, no, no, no."

If the trial were conducted in six months, when courts were able to more safely meet in person following the COVID-19 vaccine rollout, Elman said he thinks the trial may have had an outcome more favorable to his client.

"It really weeds out the lower-income and sometimes even middle-income people," he said. "A lot of lawyers who want to diversify the group of jurors are going to be compromised. And that's what happened in our trial.

"Only rich - for the most part - or upper-middle-class people showed up," Elman added. "We had an all-white jury of all wealthy people from the wealthy parts of Lake County. And we got a bad result."

Zoom court can lead to gaffes, distraction, and even danger

In early February, Texas attorney Rod Ponton went viral when a virtual court appearance went awry as he struggled to disable a filter that made him present to the judge as a cat.

"I'm here live, I'm not a cat," Ponton told the judge.

The gaffe was just a small example of how technology and virtual courtrooms can upend the legal process.

In some places, virtual court has led to more dicey situations. In a virtual domestic violence hearing in Centreville, Michigan, earlier this month, a man accused of domestic violence was in the same home as his victim, sitting in a different room during the virtual hearing.

"Your honor, I have reason to believe the defendant is in the apartment of the complaining witness right now, and I am extremely scared for her safety," Prosecutor Deborah Davis told the judge.

The accused denied he was in the same home, but police, who had already been sent to the property, arrested him on-site.

"This is an issue we didn't have when we were having live court," Judge Jeffrey Middleton said during the hearing.

"That is definitely everyone's worst nightmare and, and fear," Moore told Insider. "It's hard to get security and protection now that we're entering jurors' homes and are in people's homes. You just don't know what else is out there, and it's tough not to have interruptions or those other things going on."

In addition to distractions at home, lawyers told Insider they also had concerns that unreliable internet connections could impact the outcome of a trial.

"Imagine how many Zooms have you been on where you didn't hear what someone said," Moore said. "In a trial, that could be the most important thing. Who is going to make sure that everybody heard what they were supposed to hear?"

Even more than distractions, Elman said he was concerned about the stress caused by staring at a screen for an extended period of time, even with built-in breaks into the trial to address "Zoom fatigue".

After his two-day virtual trial in February, Elman said one of the jurors told the court they'd become "dizzy" from spending so much time watching the trial online.

"Two days is a small jury trial," Elman said. "So imagine if the trial is longer."

Virtual juries raise more concerns if used for criminal trials

While court systems have mostly used virtual trials for civil cases, some courts, like one in Texas, have used Zoom to conduct criminal jury trials, and other places, like Florida, have given courts the go-ahead to handle a backlog of criminal cases the pandemic created.

The National Association of Criminal Defense Lawyers in a report issued last year said it opposed conducting virtual trials because they "offend the constitution in several respects," particularly related to a defendant's right to confront their accuser in court and "their right to due process and confrontation includes the right to be present at trial."

Amelia Lyte, a legal associate at Hoagland, Longo, Moran, Dunst & Doukas, agreed there were "significant constitutional issues" with virtual criminal trials.

"You have a right to face here to face your accusers in court," she said. "You have a right to be in the same room as the judge and the jury because your freedom is at stake. I'm sure this will be challenged in the future, but there's a big concern about that because if you don't have a right to be there, how is the judge supposed to evaluate if you're dangerous or how to evaluate your credibility?"

Virtual trials in both civil and criminal cases could open the door to future appeals, she added.

"I used to be a public defender," Elman said. "If I'm telling you that there's bias on an injury claim - getting money because of a lack of diversity - you don't want your criminally accused not to get a fair trial with mostly upper-income jurors."

"That would be hell for a defense attorney to agree to do a Zoom jury trial. So for criminal trials, they've got even a bigger problem because they've got less tolerance for diverse diversification," he added.

Virtual trials may be commonplace in the future, but the technology is just not there yet, Elman added.

"I do think it's the future, but it's just not the future today or the future tomorrow," Elman said "I think it's five years, 10 years from now."