With the unprecedented spread of COVID-19, many states and government agencies quickly put in place preventive measures to contain the outbreak.
Courts were no exception, and many have experimented with remote civil jury trials to deal with the resulting backlog of cases. Social scientists are now offering insight on the effects of this approach.
Remote Trials on the Rise
During the pandemic, according to the National Center for State Courts, “courts saw dramatic decreases in new civil case filings as lawyers and litigants also dealt with more immediate concerns about the pandemic. But while new cases were not being filed, neither were existing cases being resolved.” In Colorado, an average of about 1,700 jury trials are held statewide between March and September in any given year—but in 2020, there were just 322 trials held, a reduction of 80%.
Courts across the nation postponed jury trials in 2020, and with those orders set to expire in late winter and spring of 2021, some state courts are looking at remote civil jury trials to resolve their case backlogs. On Feb. 1, after a state Supreme Court order, eight of New Jersey’s 21 counties began virtual jury trials in cases where both parties consented. After April 5, the virtual jury trials expanded statewide and no longer require consent from the parties involved.
California and Florida have allowed local courts discretion to hold remote civil jury trials, and the Arkansas Supreme Court has allowed civil trials to be carried out remotely. According to the Texas Supreme Court, judges may conduct remote jury proceedings without the consent of the parties—except in jailable criminal cases—as long as the court considers any related objection or motion within seven days of the proceeding. The court must also ensure that all potential and selected petit jurors have access to technology needed to participate remotely.
Remote civil jury trials are an attempt to solve access-to-justice problems during a pandemic, but they are not without concerns, including whether jurors:
- Are attentive during virtual trials (and not watching Netflix on a second screen).
- Are using evidence from outside the trial due to easy access to the internet while serving on a panel.
- Can accurately evaluate witness testimony virtually.
- View plaintiffs and defendants alike in less positive ways because of the virtual setting.
Lessons From Social Science
Researchers and social scientists may not have all the answers to these concerns, but they have weighed in on the latter two—whether jurors’ accuracy in detecting deception from witnesses will be affected, and whether the virtual setting might dehumanize parties in the eyes of jurors.
Recent meta-analysis research concerning the ability of humans to detect when a speaker is lying shows a consensus that human detection accuracy is only slightly above chance levels and that such accuracy is the same regardless of whether the interaction is in person or virtual.
Some studies suggest little to no effect on human decisions when interactions are held via video.
Additionally, when considering the dehumanizing effect of virtual trials, some studies on analogous situations suggest little to no effect on human decisions when interactions are held via video. One study regarding telepsychiatry versus face-to-face conventional psychiatric treatment found that treatment through videoconference was as effective as face-to-face treatment. Another study covering child psychiatric assessments conducted using videoconferencing concluded that in 96% of cases, the diagnosis and treatment recommendations made via the videoconferencing system were the same as those made face to face.
In contrast, a Northwestern University Law Review study on remote adjudication in immigration hearings found virtual litigants were more likely than in-person litigants to be deported, but judges did not deny respondents’ claims in virtual cases at higher rates. Instead, the results were associated with the virtual litigants’ exhibiting depressed engagement with the adversarial process—they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure. The Center for Court Innovation’s report “How Video Changes the Conversation” urges practitioners and researchers in the field to study the impact of remote trials in criminal courtrooms.
Unfortunately, not all concerns with remote jury trials can be answered for now, but state court systems will most likely remain a fertile ground for the development of innovative legal technologies.
Michael Hartman is a research analyst in NCSL’s Criminal Justice Program.