As the COVID-19 pandemic ground on, courts around the country looked to continue rendering justice while respecting public-health guidelines. A tactic utilized by some, including my own, was the use of livestreaming platforms such as Zoom in place of in-person proceedings. The parties, lawyers, judges and jurors participated in the solemn process of dispensing justice from the comfort and convenience of their home or office.
Those who advocate for continued use of this approach say that it does away with the formality of the courthouse and all that comes with it. This is precisely the problem. There are many lessons to be learned from the COVID-19 pandemic. Expanded use of remote proceedings is not one of them.
As we transition out of the pandemic, I urge my colleagues to return to trying cases the way we did when Abraham Lincoln tried cases — live and in person. We are at a crossroads. In an appeal to perceived efficiencies, some of my colleagues have suggested that this remote make-do procedure become permanent. But something critically important would be lost.
The venerable courthouse, with its majestic halls and stately courtrooms, engenders a respect for the rule of law upon all that enter. This is a place where life-changing decisions happen. Holding court on Zoom is like church in a supermarket parking lot. There’s a reason that parishioners who tried it during the pandemic were eager to return to their sanctified spaces — the experience is different. The same is true for courts. Remote proceedings cheapen and trivialize the sacred ceremony that is a trial.
Every time I come to the courthouse, I experience its weight and observe the same in others. When presiding over recent Zoom-based hearings, I observed conduct unbecoming of the institution. This includes lawyers acting unprofessionally, and defendants and victims acting inappropriately. Then, of course, there are the maddening technical glitches, not to mention the threats of hacking and Zoom bombs that accompany the platform. While these are curable over time, they remain legitimate issues.
My greatest fear, though, is the impact of remote proceedings on the jury’s critical role in our justice system. An impartial, observant and engaged jury is a necessity. For it is the ultimate finder of fact and the seeker of truth. A remote juror is inherently different from one who serves in person. There are physical cues and a rapport between parties that a juror can only fully observe and appreciate in person. But this is far from the only issue. Whether it be checking email, making purchases or simply surfing the internet, we all have been guilty of multi-tasking during an online meeting. This is an issue. A juror’s engagement and focus must remain on the matter at hand.
I also fear a juror’s curiosity would get the best of them, making it difficult, if not impossible, to resist the temptation to independently research the issues presented at trial. This might include evidence that a judge concludes is unnecessarily prejudicial — something a juror should not see.
A juror participating remotely lacks another critical characteristic — empathy for all involved. While direct research on the topic is in its infancy, I cannot help but draw from the notion of a military drone pilot, directed to kill through the grainy lens of a video camera. As one operator in a 2015 video documentary by The Guardian (“Drone Wars: The gamers recruited to kill”), put it, “[y]ou never knew who you were killing because you never actually see a face, you just have silhouettes and it’s easy to have that detachment and lack of empathy for human life as it’s easy to think of them as something else.” A juror deciding one’s fate should not mete out justice through a similar lens.
I urge my colleagues to resist the temptation to give in to the notion that technology can solve all ills. A remote trial, made possible through livestreaming platforms, is not the panacea that some make it out to be.