Juries

Virtual Juries

Valerie P. Hans

Virtual Juries

Abstract

The introduction of virtual or remote jury trials in response to the COVID-19 pandemic constitutes a remarkable natural experiment with one of our nation’s central democratic institutions. Although it is not a tightly controlled experimental study, real world experiences in this natural experiment offer some insights about how key features of trial by jury are affected by a virtual procedure. This article surveys the landscape of virtual jury trials. It examines the issues of jury representativeness, the adequacy of virtual jury selection, the quality of decision making, and the public’s access to jury trial proceedings. Many have expressed concern that the digital divide would negatively affect jury representativeness. Surprisingly, there is some preliminary evidence that suggests that virtual jury selection procedures lead to jury venires that are as diverse, if not more diverse, than pre-pandemic jury venires. Lawyers in a demonstration project reacted favorably to virtual voir dire when it was accompanied by expansive pretrial juror questionnaires and the opportunity to question prospective jurors. A number of courts provided public access by live streaming jury trials. How a virtual jury trial affects jurors’ interpretations of witness testimony, attorney arguments, and jury deliberation remain open questions.

Virtual Juries

 

In light of the ongoing pandemic, there have been a number of articles discussing virtual juries.  The Wired.com's article, linked below, should be high on anyone's list of must reads as it not only involves criminal juries but also provides a good overview of ongoing efforts to use online juries.

Wired.com: Video-Chat Juries in and the Future of Criminal Justice

Juror Deliberates from Home Using FaceTime

The NY Post has an article about an ill juror who on the last day of deliberations was unable to come to the courtroom so the judge allowed the juror to deliberate with other jurors via FaceTime.  Interestingly, the prosecution moved for a mistrial but the judge denied it.  The defendant was ultimately convicted on money laundering, conspiracy, and fraud charges.  This verdict will most likely be challenged.  If upheld, this case may lead some to start considering whether jurors actually need to be in the courthouse to deliberate or receive evidence.

NYPost.com: Sick juror allowed to deliberate via FaceTime amid coronavirus

 

 

Do you read Ars Technica?

Below is an article about the efforts of both plaintiffs and defendants to find tech-savvy jurors.  

Music-industry lawyers plan to ask potential jurors in a piracy case whether they read Ars Technica.

"Have you ever read or visited Ars Technica or TorrentFreak?" is one of 40 voir dire questions that plaintiffs propose to ask prospective jurors in their case against Grande Communications, an Internet service provider accused of aiding its customers' piracy, according to a court filing on Friday. TorrentFreak pointed out the juror question in an article yesterday...to continue reading go here.

Understand Your Jurors’ Online Reality

Dr. Ken Broda-Bahn has written an excellent review of a recent article I wrote (Social Media, the Internet, and Trial by Jury) about the current state of research on jurors and the Internet.  In his review, Dr. Broda-Bahn notes the challenges of determining the pervasiveness of online juror misconduct stating that estimates "need to be taken with a grain of salt because the same social desirability bias that limits the reliability of answers in voir dire also limits ability to collect data on this question of whether jurors are violating the rules."  To read his review in entirety go here.

Judge Prevents Defense Attorney from Using Social Media to Research Jurors

The vast majority of judges in this country allow attorneys to use social media to research jurors. Now, a particular judge may place some type of  stipulation on the research such as the attorney must share it with opposing counsel and or give jurors prior notice that research will occur.  However, it is the rare instance where any attorney gets completely shutdown which is what occurred here.  What is even more rare is that this is the second time, that I know of, for criminal defense attorney, Andrew Jezic.  5 years earlier a different judge told him that he could not research jurors. 

Gazette.Net: Montgomery judge denies Internet searches for jury selection

HeraldMedia.com: Judge denies defense request to research jurors on social media in murder case

Juror's Facebook Post Leads to Civil Suit by Criminal Defendant

A Mississippi juror, Ashley Parnell, who sat on the manslaughter trial of Carmon Brannan, a prison nurse, is now being sued for defamation by the nurse.  The civil suit arises from comments that Ms. Parnell made on Facebook about the case.  Approximately six months prior to the start of trial, the local newspaper ran a story about the nurse withdrawing her guilty plea.  This apparently upset Ms. Parnell who took to Facebook to voice her displeasure.

“If she would have done her job, Joel would still be alive today!! So yes, she is guilty of murder. He was her responsibility as long as he was in jail and was responsible for her checking his sugar and administering his medication and bc (because) she ... (failed) to do her job he died. So hell yeah, she’s GUILTY. It doesn’t take a genius to see this!!!”

The case went to trial some 6 months after the Facebook post in January and resulted in a 11-1 verdict. Surprisingly, Ms. Parnell, despite making the Facebook post, was allowed to sit as a juror. After the hung jury, Ms. Brannan brought her civil suit claiming among other things that because of the post by Ms. Parnell she suffers from emotional distress, headaches, anxiety and sleepless nights. Ms. Brannan also claims that the post damaged her personal and professional reputation.

Ms. Brannan is scheduled for retrial on the manslaughter charges in July in a different county based on the defendant's change of venue request. 

Government Uses Jury Consultant in Noor Salman Prosecution

Apparently, private practitioners are not the only ones investigating jurors today.  According to the article below, the U.S. Attorney's Office, which is prosecuting Noor Salman, widow of Pulse nightclub gunman Omar Mateen, for obstruction and aiding and abetting, has requested permission to disclose the confidential names of prospective jurors to a consulting firm and its subcontractors. It appears that the government will use jury consultants "to assist with the review of the jury questionnaires and intend[s] to use the firm to conduct searches of public records and social media of the remaining jurors."  As I have written in the past, juror investigations are becoming increasingly common.  While I don't think they are required, they have become almost standard practice for many attorneys.

Orland.com: Jury consultants tapped for Noor Salman trial

Impact of Technology on Jury Selection

The article below looks at the different ways technology has impacted jury selection.  Specifically, the article looks at apps for striking and challenging jurors, methods of researching jurors online, and programs to track the facial expressions of jurors.

Legaltechnews: Jury's Still Out: 3 Ways Technology is Trying to Aid in Jury Selection

Social Media and Jury Selection

The article below provides a good overview of how different jurisdictions address the issue of attorneys using social media to investigate jurors.  I have written on the topic extensively here and here.  However, if you want a quick snapshot of the current state of the law on social media and jury selection read this article.

Law.com: Should You 'Facebook' the Jury? Yes. No. Probably.