"An investment in jury duty is a direct investment in democracy."
Dear Colleagues,
Our beginning quote for July is from the first article in our newsletter. I liked it so much that I wanted to lead with it.
We thank Mark Farrant and Tina Daenzer of the Canadian Juries Commission for this contribution. Mark reached out to us back in May, which led to us meeting remotely. We were interested in the similarities between our systems, but also the differences.
While jurors in the U.S. can talk, and even write books, about their jury service after they are discharged, the post-trial juror experience in Canada is vastly different. A section in the Canadian Criminal Code makes it a criminal offense for a juror to discuss details of a trial not previously disclosed in open court with anyone, including a mental health professional. Deliberations are secret and jurors are prohibited by law from making any public comment about their decision or explanation for their verdict - violations are punishable by fine or imprisonment. A juror in Alberta was charged and convicted for disclosing the deliberations of the jury on which she sat. I do not want to give too much away in this introduction, but let me assure you that it is a fascinating difference between the two systems.
We found similarities on a topic that Steve Susman worked for tirelessly: increasing juror pay. Our jurors are our most precious resource. More needs to be done so that jury duty does not become overly burdensome, especially for jurors who are already suffering economically due to the pandemic. We hope to continue to exchange ideas and solutions with the Canadian Juries Commission going forward and we thank them for reaching out to us.
We have been busy making presentations. Our Research Fellow, Michael Pressman, reports on his participation in the 2021 Annual Meeting of the Law and Society Association. This meeting was organized by one of our CJP Academic Advisors, Professor Valerie Hans of Cornell Law School. Also participating was our very first Research Fellow, Richard Jolly.
In June I presented a program on jury trial innovations to an education conference for judges in Connecticut. One of our Judicial Advisors, Judge Susan Cobb, asked us to present and we thank her for that opportunity. If your court system would like a similar program regarding jury innovations, please reach out and we will try to help.
Here are our goals for this year and I plan on keeping these up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:
1. We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.
2. If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.
3. We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, save time and help cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.
Some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive and representative cross-section of the community.
4. Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.
If you would like to be involved in any of our goals listed above please feel free to email me directly at markd56.md@gmail.com.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
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Due to the ongoing COVID-19 pandemic, all in-person events are canceled. |
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Jury Duty Is Not a Duty to Suffer
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By Mark Farrant and Tina Daenzer
The Canadian Juries Commission
Toronto, Ontario, Canada
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In Canada jury duty is under considerable threat, experiencing the greatest risk to its existence since the end of the Second World War. This threat is both external and one of its own making. The Covid-19 pandemic – just as it exposed the frailties of public health – threatens to reveal the institutional fragility of Canada’s jury system, capitalizing on the existing weaknesses and neglected structures, and taking advantage of post-Covid economic conditions. At the height of Canada’s first Covid-19 outbreak (Wave 1), a national survey revealed Canadians were more willing to donate blood, or volunteer for a community organization, than participate in jury duty post-Covid-19. Canadians also rated jury duty lower than blood donation or community involvement as important civic duties. These opinions are the outcome of years of institutional neglect, government complacency, and the absence of support materials that have combined to erode the brand equity of jury duty – to use a marketing term.
Jury duty is the last remaining mandatory civic responsibility since the end of military conscription. It features prominently among the responsibilities of citizenship on the Government of Canada website: “Serving on a jury — When called to do so, you are legally required to serve. Serving on a jury is a privilege that makes the justice system work as it depends on impartial juries made up of citizens.” In Canada the right to be tried by a jury of one's peers is enshrined in the Canadian Charter of Rights and Freedoms, and is the cornerstone of Canadian democracy. The right to be tried by a jury, and the civic responsibility of jury duty, are bookends of our democratic principle, securing the letter of the law within. In many Provinces and Territories the conditions on jury duty have not changed in decades, and not kept pace with the demands of a rapidly changing modern world, the workplace, and economy. Low jury pay, workplace and employment concerns, civic apathy, and lack of awareness have contributed to declining public interest. Concerns of diversity and representation on juries have existed for decades, further eroding public confidence and institutional support.
Post-pandemic citizens will be experiencing unemployment, job insecurity, debt and insolvency not seen in decades. There will be an overwhelming need to empanel juries, yet citizens' ability and willingness to serve will be compromised – with many having more legitimate reasons to be excused from service. Alarming mental health data has demonstrated a sharp rise in depression, anxiety, and mood disorders, as well as higher levels of substance abuse, and suicidal ideation. Many health professionals have voiced concerns of a mental health epidemic once the public health epidemic eases.
Given the importance of jury duty, given it plays a critical role in our democracy, it’s time to re-invest in the jury system and make critical new investments to support jurors and our justice system for decades to come. Just as we have made critical investments to support public health amid the pandemic, we must make similar commitments to support and re-invest in the jury system at this precarious juncture. As we continue to identify access to justice concerns and intersectionality within the justice system, we have a unique opportunity to invest in jurors, which at the same time improves representation and confidence in the justice system. An investment in jury duty is a direct investment in democracy.
Five years ago, in very different times, 12 jurors delivered guilty verdicts in the First Degree murder trial of Dellen Millard and Mark Smich in a Hamilton, Ontario, courthouse for the murder of Tim Bosma. A young family man, with his life seemingly ahead of him, Tim Bosma had simply posted an advertisement online selling his truck, and after receiving a reply, had decided to accompany the two prospective buyers on a test-drive. He never returned. Tim was shot. His body cruelly disposed in an industrial livestock incinerator, commercially named “The Eliminator”. The four-month trial gripped Canadians from coast to coast, and after five days of deliberations (widely discussed in the media) the jury returned to their lives having performed their civic duty, anonymous and seemingly forgotten to history. Unlike in the United States, jurors in Canada are not identified by law, never photographed, and thus almost never interviewed by the media. Jury deliberations are also secret under Section 649 of the Federal Canadian Criminal Code, where jurors are prohibited from making any public comment about their decision or the reasoning behind the verdict. Similar to the United States, jurors are instructed not to discuss the trial with anyone while serving in court.
How could we have known jurors in the Tim Bosma trial had developed PTSD and depression from their trial experience? How could we have known graphic and disturbing evidence had left an impact? How could we have known post trial mental health concerns had been experienced by jurors for decades when jurors are sworn to secrecy?
In 2016, Canadian jurors began to speak out about their post-trial experiences, particularly the impact on their mental health. Jurors discussed the impact of viewing graphic physical and video evidence, harrowing witness testimony, and moral injuries inflicted from the decision making process and deliberations – especially from cases which resulted in acquittals, or lower convictions. While bound by secrecy, jurors discussed the impact of deliberations, and particularly depression and anxiety experienced from reading media and public commentary on their particular trials. Many expressed difficulties re-integrating into work and social interactions after the trial, impacting relationships and workplace performance. Common among these experiences was the expressed difficulty accessing mental health support, especially where many Provinces and Territories offered no post-trial counselling at all, while in others, institutional barriers existed. At the time in Ontario, counselling could be available to jurors but only if issued by the presiding judge – which was extremely rare. British Columbia’s policy required a minimum of six jurors seeking assistance before it would issue counselling. A group of former jurors wrote to Federal Members of Parliament, Senators, and the Justice Minister seeking action and national standards for jury duty, coupled with a campaign and press conference in Ottawa – dubbed the 12 Angry Letters by Canadian media. Among those were letters from jurors sitting in the Tim Bosma case.
In 2018, the Canadian House of Commons Standing Committee on Justice and Human Rights released a landmark report, “Improving Support for Jurors in Canada,” following a lengthy study of jury duty which included former jurors, legal subject matter experts, justice officials, court operators, and academics among the list of witnesses and contributors. Among the list of recommendations was universal access to mental health support to jurors post-trial, increased jury pay to $120 per day, compensation for juror expenses (e.g., parking, childcare, and travel), and improved access to information about jury duty – including roles and responsibilities. A key recommendation was an amendment to the Canadian Criminal Code, loosening the secrecy restriction to allow jurors to discuss deliberation with a mental health practitioner.
British Columbia, Saskatchewan, and Ontario introduced post-trial juror mental health support programs, with access to a fixed number of counselling sessions. Saskatchewan raised jury pay to $110 per day, but few other Provinces or Territories responded to the recommendations in the report.
Courthouses across Canada closed their doors in 2020 and have largely remained closed in 2021 as the Covid-19 pandemic raged across the country, with only a handful of criminal trials being heard in British Columbia, Alberta, and in the Atlantic Provinces. Similar to the United States, the backlog of trials due to emergency pandemic closures in Canada is enormous – stressing an already fatigued justice system. Once public health measures ease, there will be an overwhelming call to begin empaneling juries. Will Canadians be ready or willing to serve? Post-Covid-19, reports of higher levels of jury absenteeism and no-shows throughout the United States are particularly alarming, including reports of mistrials and dismissals due to the inability to form a jury. Fears of jury absenteeism are being expressed widely in Canada.
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Increased jury pay is perhaps the most important catalyst for improving participation and equity on juries. In most Provinces and Territories, jury duty pay remains well below minimum wage, and has not increased since the 1990s. In Ontario, jury pay is not issued for the first 10 days of a trial, and then increases to $40 per day for the next 49 days, rising to $100, and is similarly low in British Columbia. In Alberta, jury pay is $50 per day, while in Manitoba and most of the Atlantic region, it is even lower at $30 - $40. Employers are also not obligated to maintain salaries, wages, or benefits for employees while serving – while an employee cannot legally be fired for accepting a jury summons, their employment income is not guaranteed. Jury duty is a civic duty, and a responsibility, and as such, corresponding jury pay has long been identified as being an honorarium by the Court and Government. However, if employment income is not guaranteed for jurors, jury pay can no longer be positioned as a stipend – it must be re-positioned as income support. At the current rate in most Provinces and Territories, jury pay is not enough to replace lost wages or salaries. In Canada’s most expensive cities, Toronto and Vancouver, daily jury pay is easily spent on the cost of daily parking and a meal – both of which are not provided to jurors – leaving bills and home expenses unpaid. The cost of daily parking over a four-month trial in Toronto is roughly $2,400.
Jury duty is a civic duty, but is not a duty to suffer, and not a duty to be maintained only by those who can afford to participate. Increasing jury pay to $120 per day is an investment that will earn dividends in public confidence and participation. Increased jury pay has the additional benefit of improving diversity and representation among racialized communities over-represented in lower income segments, part-time and precarious employment, and working in industries where employment income is not maintained during jury service, culminating in improved equity and support for the jury system.
Jury duty is not a vocation. Jurors receive no training or preparation for their service by design to ensure integrity and impartiality. Yet jurors are exposed to the same graphic evidence, testimony, and materials observed by first responders, police services, and counsel connected to the case, including the presiding judge. With mounting evidence of PTSD among first responders, we can no longer ignore the trial experience impact on the jury. Jurors lack institutional training to separate themselves from evidence, and lack access to vocational resources, associations and services supporting employees in public safety and the justice sector – but are the most vulnerable to trauma. Post-trial support and counselling for jurors is a direct investment in our citizens, and must be included in the table stakes for court operators, especially now, as we move past Covid-19.
Investing in juror mental health is our moral duty, and another valuable contribution to the justice system which will result in improved confidence and participation rates, and improved equity for generations to come.
On October 27, 2020, Bill S-212 was introduced in the Canadian Senate for a third time. The Bill had never been defeated and has enjoyed enormous support, but twice before had not survived the end of term in Parliament. The Bill is an amendment to the Canadian Criminal Code loosening the secrecy rule to allow jurors to discuss all aspects of the trial – including deliberation – with a mental health practitioner. The Bill is currently at the Committee Review Stage, having passed First and Second Reading, and must proceed to a Third Reading before it moves to the House of Commons stage, where it must be reviewed. Bill S-212 draws directly from the recommendations contained in the House of Commons report, “Improving Support for Jurors”.
Dellen Millard and Mark Smich were tried again in 2017 in the disappearance and murder of Millard’s girlfriend Laura Babcock, in a trial that once again gripped Canadians from coast to coast.
A jury found both Millard and Smich guilty of first-degree murder after four-and-a-half days of deliberating, in a trial lasting seven weeks. Jurors now had access to the Ontario Juror Support Program, recently introduced by the Ontario Ministry of the Attorney General. It is widely speculated that many jurors accessed counselling following their service in the Babcock case.
Removing the judicial barrier to accessing counselling services was an extremely important development in Ontario. Many Canadian trial judges talk openly about mental health when thanking jurors for their service, remarking on difficult trials, and reminding jurors that counselling is available through the Province.
Jury duty is our collective responsibility to maintain and improve. Jurors provide an enormous contribution to our justice system, and without them there would be no justice. Jury duty can be an extremely rewarding experience, but for some it has been life altering. Covid-19 has presented an opportunity to reflect on the system’s frailties and a chance to improve jury duty for the betterment of all.
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The Canadian Juries Commission is a nascent national not-for-profit organization representing and supporting Canadians serving on criminal and civil juries, and coroner’s inquests - born out of the House of Commons 2018 report. The Commission was founded by former jurors, mental health practitioners, advocates, and legal professionals dedicated to improving support for jurors in Canada, and improving jury duty for all Canadians.
The Canadian Juries Commission has appeared before the House of Commons Standing Committee on Justice and Human Rights, and the Standing Committee on Finance, the Senate of Canada, the National Judicial Institute, and the Supreme Court of British Columbia to discuss investments in jury duty and mental health.
Follow The Canadian Juries Commission on twitter @canadajury
Links:
House of Commons Standing Committee on Justice and Human Rights: “Improving Support for Jurors in Canada”
Ministry of the Attorney General of British Columbia: Juror Support Program
2020 survey result mentioned in the first paragraph of this article: Click here and then scroll down to
"2020 Survey Result from the Canadian Juries Commission: Jury Duty Omnibus Topline"
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Tina Daenzer is the COO/CFO of the Canadian Juries Commission. Tina served as a juror in the first-degree murder trial of Paul Bernardo in 1995.
Tina has held many senior roles as a Producer and Media Professional, most recently as Senior Producer of CTV's Canada AM, a part of the News Division of Bell Media Inc. Follow Tina on twitter @tdaenzer
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Mark Farrant is the Founder/CEO of the Canadian Juries Commission. Mark served as a juror in the first-degree murder trial of Farshad Badakhshan in 2014. Mark has held senior roles in Marketing and Insights for Walmart Canada Corporation, Rogers Communications, and AB InBev. Mark was named a Canada 150 Difference Maker in Mental Health as part of Canada’s 2017 celebrations by the Centre for Addiction and Mental Health for his work on jury duty mental health. Follow Mark on twitter @cdnjuryhelp
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“Re-Imagining Jury Trials in a Pandemic”: A Recap of the Roundtable at the 2021 Annual Meeting of the
Law and Society Association
By Michael Pressman
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On May 28, 2021, I had the great pleasure of participating in a jury-themed roundtable session that was part of the 2021 Annual Meeting of the Law and Society Association (which took place over Zoom). The roundtable session, entitled “Re-Imagining Jury Trials in a Pandemic,” was organized by Professor Valerie Hans, of Cornell Law School, and its purpose was to serve as a forum for discussion surrounding a variety of jury issues arising in the context of the pandemic.
The session’s description was as follows: “Participants in this roundtable will discuss the efforts that courts in the USA and elsewhere have made to reimagine jury trials in the midst of the COVID-19 pandemic. Drawing on theory and practice, roundtable participants will discuss the effects of delaying, reducing, and modifying jury trials. They will critically evaluate the diverse approaches that courts have taken to continue with jury trials, on the one hand conducting in-person jury trials with social distancing and masking, and on the other hand using zoom and other online vehicles to conduct jury trials. The panelists will also look ahead, predicting how this pandemic moment might change jury trials and jury trial procedure in the future.”
The roundtable’s format was for the eight participants, including Professor Hans, the chair, to give brief initial comments (circa 5 minutes) and for there to then be approximately an hour remaining for back and forth discussion among the participants and for engaging with the audience (with this last hour being moderated by Professor Hans). The eight participants were Valerie Hans (Cornell Law School), Paula Hannaford-Agor (National Center for State Courts), Marie Comiskey (University of Toronto), Mar Jimeno Bulnes (University of Burgos), Richard Jolly (University of California at Berkeley), Neal Feigenson (Quinnipiac University), Michael Pressman (the Civil Jury Project at NYU School of Law), and Krystia Reed (University of Texas at El Paso). And, in addition, before proceeding to the more free-flowing portion of the session, Professor Hans invited two others to provide an overview of a recent paper of theirs: Giorgi Meladze (Ilia State University) and Nikolai Kovalev (Wilfrid Laurier University).
The session did not disappoint. The presentations and ensuing discussions were informative, interesting, and lively, and the roundtable proved to be a valuable opportunity to talk with one another about the current and future states of the institution of the jury. This newsletter piece will provide a brief overview of the presentations and ensuing discussions that took place during the roundtable. Before we begin, however, we, at the Civil Jury Project, want to thank all of the participants in the roundtable for their contributions and for making the session the great event that it was. We enjoyed hearing what everyone had to say, and we learned something from everyone. Most of all, however, we want to thank Professor Hans--for organizing the roundtable and also for inviting us to participate. We hope that there can continue to be open and lively dialog on all of these important topics.
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1. Valerie Hans (Cornell Law School)
Professor Hans kicked off the roundtable by offering introductory comments about the roundtable theme and by introducing the participants and the topics of their presentations. (When it came time for the more free-flowing portion of the session, Professor Hans posed many of the questions during Q&A and she moderated the discussion. We also include here a link to a fantastic paper that Professor Hans recently wrote for the Clifford Symposium on virtual civil juries (entitled “Virtual Juries”). It can be found at this link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3860165
2. Paula Hannaford-Agor (National Center for State Courts)
Ms. Hannaford-Agor’s presentation provided an overview of the states of affairs in the state courts throughout the country. She addressed courts’ backlogs of cases, the challenges of in-person and remote juries, and what state courts across the country are doing.
Ms. Hannaford-Agor discussed the fact that there has been a very wide range of ways in which the country’s state courts have responded to the pandemic (and, at the NCSC, she has been exposed to the various approaches that state courts have taken). Some courts have continued to conduct jury trials, and of those that have done so, some have done so in courthouses, while others have conducted jury trials in larger spaces--such as in fair grounds, schools, and arenas. Ms. Hannaford-Agor also noted that a pervasive challenge of jury trials has been whether citizens will show up for jury duty if they are summoned. Some jurisdictions have gotten enough jurors, but other jurisdictions have struggled in this respect. Ms. Hannaford-Agor also noted that various jurisdictions also experimented with remote jury trials. In addition, some states have permitted jury selection remotely but have then conducted the ensuing jury trials in person. Ms. Hannaford-Agor noted that what is fairly similar across most jurisdictions is that there are tremendous backlogs. Typically, 2% of criminal cases go to jury trials and 1% of civil cases go to jury trials. Typically, in state court, there are 106,000 jury trials per year (circa 2,100 jury trials per week). But, during a 12-month period during the pandemic, there were approximately 2,100 jury trials total. Accordingly, there is a backlog of approximately 100,000 trials that will ultimately go to trial.
3. Marie Comiskey (University of Toronto)
Ms. Comiskey, a full-time prosecutor in Canada who also has an academic interest in juries and a doctorate in jury instructions, presented an overview of the recent state of affairs in Canada--in terms of the cancellations of jury trials and the ramifications of these cancellations. Reporting primarily on the goings on in Ontario, Ms. Comiskey reported that the impact of the pandemic has been to bring jury trials almost to a standstill. There had been a bit of opening up in September 2020, when a handful of jury trials were conducted, but then the courts largely closed down once again. Ms. Comiskey reported that there were instances of empaneling of jurors remotely, though this was typically done from venues such as mega conference centers where people could be spread out into big rooms. Ms. Comiskey is hopeful that in-person jury trials might begin again in the early fall. She also thinks that it’s possible that some parties might now ask for bench trials more than might have been the case before, and she also expects that there will be a considerable increase in “Section 11b” delay applications.
4. Mar Jimeno Bulnes (University of Burgos)
Professor Jimeno Bulnes’s presentation provided an overview of the goings on in Spain and Spain’s experience with in-person socially distanced jury trials.
According to Professor Bulnes, in Spain, over 200 rules have been enacted as a result of Covid, and two are related to justice--both of which address how to proceed with trials. According to these rules, certain proceedings can be carried out remotely. But jury trials are not included among the proceedings for which there can be remote proceedings. In Spain, jury trials are typically only conducted for certain crimes, and most jury trials are conducted in murder cases. And these cases are not captured by the rule that permits for proceedings to be conducted remotely. As a result, jury trials, if they occur, are occurring in-person. Further, when they are conducted, they are being conducted in the same courtrooms as before the pandemic--though with various safety measures being taken. One such measure is that there are currently restrictions regarding the public nature of courtrooms. The Constitution states that all criminal trials must be conducted publicly, but, as a result of the pandemic, and so as to respect safe distancing, jury trials are now taking place behind closed doors--rather than being moved to larger venues. Some jury trials have, however, been suspended in cases where the courtroom doesn’t have the appropriate measures in it to keep people safe. There also has been a plan recently promoted by the general council of the judiciary (though it’s not yet a rule) in order to deal with judicial chaos, and it proposes removing certain offenses from the list of offenses that are handled by juries--since the courts’ capacity for conducting jury trials is less than it had been pre-pandemic. Accordingly, certain changes to criminal procedure are currently being considered in Spain.
5. Richard Jolly (University of California at Berkeley)
Mr. Jolly’s presentation provided an overview of one possible option for combating the backlog of cases that exists due to the pandemic: expedited jury trials.
As Mr. Jolly says, the pandemic has caused there to be a massive backlog of cases, and it could take years to get through the backlog of criminal cases alone. Further, he points out, in addition to there also being a large backlog of civil cases, there also are many civil disputes where parties have decided to temporarily hold off on filing. The existence of these “shadow cases” thus means that the civil backlog might be considerably greater than the number of pending cases alone might suggest. Accordingly, we need to find a solution, and one such solution is to conduct expedited jury trials or summary jury trials. Mr. Jolly reports that some states already do have programs implementing these abbreviated trials, and usually the differences between them and typical trials is that, in the abbreviated trials, the length of the proceedings is limited, the number of witnesses that parties can present is limited, and parties’ appeal opportunities are often limited. In addition, the number of jurors serving on the case is typically lower. For example, in Maricopa County, Arizona, these trials involve just a four-person jury that is selected from a ten-person panel. Additionally, the verdict does not need to be unanimous. In light of the fact that a number of jurisdictions have experimented with expedited trials, Mr. Jolly floated the possibility of our expanding their use so as to help with the backlog of cases. As Mr. Jolly noted, however, it is an open question whether--and far from clear whether--the various abbreviations involved in these jury trials make these trials so limited that we would think it better to not conduct them. Certainly, these trials seem in various ways to be less than ideal, but the important question to ask is whether implementing them at least in certain situations might be better than the alternative--enormous backlogs that, themselves, have serious implications for access to justice. And it seems that, in at least some situations, expedited trials might have promise.
6. Neal Feigenson (Quinnipiac University)
Professor Feigenson’s presentation was the first of three presentations exploring remote jury trials. Professor Feigenson’s presentation provided an overview of what research suggests about what might be lost or gained in virtual trial proceedings. His presentation drew on research in areas such as psychology and communications, and it reflected on issues he sees with remote jury trials.
Professor Feigenson reported on three key ways in which remote and in-person jury trials differ. First, he discussed the difference that a remote medium would bring about for display of, and uptake of, demeanor. There is a concern that demeanor is harder to pick up over Zoom, and there is also a concern about Zoom fatigue and lack of eye contact. One workaround would be to limit remote proceedings to those where credibility of a witness is not in question, but Professor Feigenson points out that there are also concerns we might have with the ability to assess a person’s character over Zoom even if his or her credibility is not at issue. Second, Professor Feigenson discussed the possible effects that might exist as a result of displacing adjudication from the “place” of the courtroom to the “non-place” of the remote courtroom. This switch could affect the display of emotion and the reading of emotion, and, further, adjudication might seem less momentous if not in the courtroom. There might be an “exhausting placelessness” that results if proceedings occur remotely. If these concerns indeed obtain, there would be important questions about how, if we are to use a remote platform, we could possibly recreate the aura of a physical courtroom when we are in a remote courtroom. Third, Professor Feigenson discussed the fact that over a remote platform, the public audience (including, for example, a victim’s family members and friends) is not physically co-present. Even if these people are watching on a live stream, the concern is that this might be a very poor substitute for physical co-presence. There seems to be an importance of the public ritual of co-presence--and of victims of criminals to be speaking in a physical courtroom to a live audience--and there is a concern that these features might be dramatically altered if we conduct proceedings remotely.
7. Michael Pressman (the Civil Jury Project at NYU School of Law)
Here, at the Civil Jury Project, we have learned a lot over the past year or so about the benefits and the challenges associated with remote jury trials, and much of what we have learned has come from our conversations and correspondences with various judges throughout the country who have conducted remote jury trials (including, among others, Judge Matthew Williams in King County, Washington). In my presentation, I discussed some of the highlights of what we have learned over the past year from judges who have conducted remote jury trials--their main observations and their main takeaways. Many of these judges who have conducted remote jury trials are very optimistic about the place of remote platforms in courts. According to them, not only are various concerns unfounded, but, in many ways, remote platforms provide substantial advantages—some that might have been expected, but also some that might have been unexpected. I reported on some of the highlights from what we have learned from the experiences that these judges have had with remote jury trials.
Among the findings (regarding benefits of remote jury trials) that I discussed were: possible improvements in terms of juror demographics and a more inclusive jury pool, benefits for the voir dire process, increased participation (and comfort) of jurors during voir dire and deliberation, reduced gender bias in voir dire and deliberation, greater connection and empathy between jurors and attorneys, increased juror engagement throughout the trial, and, despite concerns to the contrary, there not being a problem observed regarding witnesses being coached.
Although courts are still refining their procedures for remote jury trials, the findings regarding the benefits, according to some, have been incontrovertible. Further, Judge Williams reported that although he does think that in-person trials will return post-pandemic, he does not think that his court will ever return to having in-person voir dire because the benefits of remote voir dire are too great.
8. Krystia Reed (University of Texas at El Paso)
In her presentation, Professor Reed provided an overview of experiments that she conducted with Professor Hans--experiments that explored mock jury deliberations and which provided insights regarding possible differences between in-person and remote jury trials.
Professor Reed had been working with Professor Hans on a mock jury deliberation project in which jurors watched recorded trial materials regarding a civil car accident case and in which they were then required to deliberate about damages for pain and suffering. The study examined the deliberations of these mock jurors. As of 2020, they had gotten 24 in-person juries to deliberate. The pandemic then hit, and they have now conducted 26 jury deliberations over Zoom. Professor Reed reports that, so far, they are finding that, in various ways, remote mock juries are much more variable than in-person juries. While the in-person juries have hovered around a 45-minute period of time for deliberations, online juries have varied considerably more (from 10 minutes to 2 hours). There is also more variability in the level of politeness online, with both extremes being observed more frequently than for in-person juries. There are also more extremes for remote juries regarding how much the jurors report liking or disliking the experience of deliberation. In addition, there are also greater extremes in the remote juries regarding the level of attention that the jurors are paying. As for ease of participating--and ability to participate--some jurors reported being able to participate more easily in one way and others reported being more able to participate in the other. Additionally, it was also reported that disabilities were among the reasons, for some, that remote participation was feasible and that in-person participation was not.
9. Giorgi Meladze (Ilia State University) and Nikolai Kovalev (Wilfrid Laurier University)
Before proceeding to the more free-flowing portion of the session, Professor Hans invited two others to provide an overview of a recent paper of theirs: Professor Giorgi Meladze and Professor Nikolai Kovalev. Professors Meladze and Kovalev presented the highlights of a paper of theirs in which they discuss and explore the recent real-world jury experience in the countries of Georgia and Russia. They reported that these two countries have not suspended jury trials at all, and, for their research, they spoke with various people in the legal system (e.g., prosecutors, other lawyers, etc.). Professors Meladze and Kovalev described their hypothesis, which is that in countries where there are troubled democracies and where the judiciary is in crisis (even pre-pandemic), there is extra need to let jury trials continue, and this is because we / they need to maintain as much trust in the judicial system as is possible. According to Professors Meladze and Kovalev, in Georgia and Russia, the trust in the system would not survive if jury trials were suspended or if they were conducted remotely. This, they say, is because there already is enough distrust in the system that currently exists. Professors Meladze and Kovalev hypothesize that if jury trials were suspended or if they were conducted remotely, this would awaken memories of the Soviet Union and totalitarianism. Further, they say, since the rest of the political system is open, it would be a mistake to close the courts while other branches of government remain open.
10. Question and Answer and General Discussion
After these initial presentations concluded, a lively session of Q&A and discussion ensued--moderated by Professor Hans and with questions being posed by Professor Hans, audience members, and roundtable participants. I won’t mention here all of the topics that were discussed during this portion of the roundtable, but the following are some of the topics that were addressed:
--The contrast between the different pictures of remote jury trials that were painted by different participants in the roundtable
--Questions of how remote jury trials affect demographics of jury pools and the various issues affecting / detracting from the representativeness of jury panels even pre-pandemic
--Potential benefits of allowing jurors the choice of whether to report to jury service remotely or in-person
--Whether there might be higher conviction rates if criminal trials are conducted remotely
--The possibility of conducting expedited trials that are expedited in the various ways discussed except for not having a smaller number of jurors, but instead having the full number of jurors; concerns raised associated with having a smaller number of jurors
--A concern with remote jury trials being that there might not be the same group cohesion among jurors that would occur in an in-person trial (and possible ways to try to replicate this cohesion in remote jury trials)
--Concerns about whether witnesses are being coached in remote trials
--Concerns for jurors in remote trials: concerns about juror safety, secrecy of deliberation, possibility of external influences on jurors during the trial and during deliberation, concerns for safety of jurors (especially during cases involving crimes such as gang violence)--and these concerns being even greater in countries where there is distrust of the legal system
--The importance of keeping in mind that there are various concerns / issues to be reckoned with in in-person trials as well, so the mere fact that a concern exists with respect to remote trials is not sufficient reason to abandon remote trials; we must make the appropriate comparisons between what things are like in remote and in in-person trials
--The possibility of implementing different rules and procedures for different types of cases and in different jurisdictions; the possibility of having non-uniform procedures
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We, at the Civil Jury Project, want to thank all of the participants in the roundtable for their contributions and for making the session the great event that it was. We enjoyed hearing what everyone had to say, and we learned something from everyone. Most of all, however, we want to thank Professor Hans--for organizing the roundtable and also for inviting us to participate. We hope that there can continue to be open and lively dialog on all of these important topics.
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Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.
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Look out for the August Newsletter!
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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