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Dec 13, 2021

A Virtually Bad Idea: The Pitfalls of Conducting Remote Jury Trials

By: Kate Oncken

“Your case has been called for a virtual jury trial….”

A seemingly simple phrase that may strike fear into the heart of even the most experienced attorneys. Courts have conducted virtual bench trials throughout the pandemic with generally satisfactory results. Virtual jury trials, however, still are a rather foreign concept, and the overall success and efficiency of such trials remains a mystery. But whether or not one believes in the potential of a virtual jury trial to effectuate justice, it cannot be denied that virtual jury trials are fraught with issues, the impact of which may not be realized for some time.

Until the COVID-19 pandemic began, virtual jury trials were relatively unknown, nothing more than a bewildering notion born from a dystopian universe in which fair trials are not a concern. The purpose of implementing virtual jury trials during this period of worldwide crisis was not only to protect against exposure to COVID-19, but to ensure that claimants have their day in court without significant delay, particularly because the end of the pandemic seemed (and continues to seem) a distant dream. Staunch supporters of virtual jury trials tend to focus solely on how the format will benefit their own cases, rather than weighing how proceeding in this manner could negatively affect them or, even less, how it may adversely affect their opponents’ opportunity for a fair trial.

Perhaps one of the most concerning aspects of virtual jury trials is the lack of juror attentiveness that seems to occur routinely. Reported instances of juror inattentiveness include jurors and prospective jurors sleeping, driving, applying makeup, exercising, drinking wine, and even playing video games, or, much more commonly, simply reading and working on another device instead of giving the proceedings the attention they demand and deserve. Jurors have muted the proceedings, so that the parties or judge are forced to think of ways to reengage the juror, or at least convince them to turn off the mute button.

Obviously, great danger lurks in having an inattentive juror help decide the outcome of your case, as any opinions inevitably will be based on factors outside of evidence, or based on evidence that was given an improper amount of weight because it was the only evidence seen or heard. This is not a concern in a traditional courtroom, where the formality of the proceedings emphasizes their seriousness and the need for each juror to pay the required attention.

Other significant issues arising from the use of virtual jury trials are technological limitations and inequality of the availability of technology among the jury pool. Access to the internet and other necessary technology is inconsistent, and not every court has the resources necessary to ensure fair access to technology. Despite the mountainous efforts some courts have taken toward technology equality, courts cannot guarantee the same internet capacity for each juror throughout the trial. Furthermore, potentially competent and favorable jurors may be excluded from service because they have poor technology skills or challenging logistics. This also is not a concern in a traditional courtroom, where everyone has the same access to witnesses and evidence.

Of course, the possibility that technology will fail is not a central issue in a traditional jury trial setting. The possibilities of sound cutting out, video feed freezing, or losing connection altogether have been the most commonly reported virtual jury trial issues. These possibilities not only constitute a nuisance impacting the flow of the trial, but even the slightest technological issue could impact the outcome of the case, both at trial and on appeal.

For example, if the sound cuts out during an objection, the objection may not be heard or make its way into the record. Same issue with the loss of signal or video freeze during testimony. With the risk of these technological issues impacting the content of the record, parties must use the appellate rules and procedures for correcting the record as necessary to ensure they preserve error.  See Tex. R. App. P. 34.5, 34.6, 38.5. 

No Texas law expressly permits, much less requires, the use of virtual trials in personal injury cases. The CARES Act authorizes federal district courts to allow virtual appearances in criminal cases, Section 264.0091 of the Texas Family Code permits virtual proceedings in child welfare cases, and Section 402.0213 of the Texas Government Code authorizes the office of the attorney general to conduct proceedings virtually.

The Texas Supreme Court has released emergency orders (totaling 45 as of November 23, 2021), which provide in relevant part that all courts in Texas, “subject only to constitutional limitations … should continue to use reasonable efforts to conduct proceedings remotely.” While the Court has not gone so far as to mandate virtual jury trials for any type of case, the orders do not require that all parties must consent before a case will be tried virtually to a jury. 

The right to jury trial, as guaranteed by the Texas Constitution, overrides any public interest in speed or convenience (the sole purposes of conducting a jury trial virtually), and any restrictions on that right must be examined with a high level of scrutiny. See, e.g., Jones v. Jones, 592 S.W.2d 19 (Tex. Civ. App.—Beaumont 1979, no writ). Included in this right is a party’s entitlement to an engaged jury. Woods v. State, 801 S.W.2d 932, 937 (Tex. App.—Austin 1990, pet. ref’d) (stating that this right extends to the juror’s attention during voir dire). A virtual jury trial risks infringing on a party’s right to due process, which protects a party’s individual liberty against “certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986).

Due process also guarantees parties the right to confront and cross-examine adverse witnesses. Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987). An aspect of the right to confront and cross-examine adverse witnesses, which is critical to the legal process, is the ability for the jury to observe a witness’s demeanor. With virtual jury trials, however, where parties and witnesses are separated from the jury by screens, the virtual nature impacts the jury’s ability to properly assess credibility and, thus, may impair the jury’s fact-finding function.

The doctrine of fundamental fairness guarantees that each party has the opportunity to adequately and vigorously present its material claims and defenses. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002). This guarantee expands exponentially when punitive liability is at issue. When the ability to effectively present a claim or defense is at stake, fundamental fairness should trigger the requirement that all parties must consent to any change in jury trial format—especially to a format so novel as virtual jury trial proceedings.

Judges have favored virtual jury trials, particularly as a means of clearing their backlogged dockets resulting from the pandemic. However, many judges agree that not every case is well-suited to the virtual jury trial format, particularly those of a more complex or high-dollar nature. Even so, objections to virtual jury trials are not often granted, and the Texas Supreme Court has yet to grant relief from an overruled objection in a civil matter.

Despite seeming enthusiasm for virtual jury trials, the Texas Legislature failed to pass a bill during the last session that would have allowed a court to require a virtual jury trial without the consent of the parties. See SB 690. The companion bill, HB 3611, accounted for the same provisions (a universal method for proceeding with virtual jury trials set forth by the Office of Court Administration, and equal access to technology for all juries and parties to move forward with the virtual trial), except that it required the consent of both parties to move forward with the virtual format. Neither bill made it out of committee.

Preservation of appellate issues arising out of the virtual jury trial process should be considered early. A pretrial objection to the order for virtual jury trial should be made as timely and as early as possible after receiving it. Currently, the Texas Supreme Court requires that a motion or objection be heard seven days prior to the trial date. Many local rules require the submission of a motion or objection to virtual jury trial even earlier.

If the objection is overruled and the case proceeds as a virtual jury trial, preservation planning must include addressing problems with technology, evidence, and juror attentiveness. Preservation may require additional written filings to identify and address what occurred, and may require additional proceedings. All issues affecting the presentation of the case should be called to the attention of the court at the time they arise and should be ruled upon on the record. If necessary, objecting counsel should state on the record (and perhaps in additional written filings) what occurred, when, and counsel’s understanding of the court’s rulings.

Helpful articles regarding the preservation of error during virtual jury trials are available with a quick search.  The following article provides general thoughts:

While there are many proponents of virtual jury trials, whether the format will persist after the end of the COVID-19 pandemic is yet to be determined. Until then, it behooves practitioners to prepare for technology problems and potential juror inattentiveness—especially in a lengthy and complex case—and to expect the unexpected.