Online Jury Duty – Can justice be served virtually?

In a seemingly ordinary legal case, an information technology company based in Texas sought a multimillion-dollar settlement from its insurance company for damages caused by hail and wind during a storm. The plaintiff presented their testimony, while the insurer’s legal team called upon engineers as expert witnesses and displayed photographs of the damage as evidence.

However, unlike traditional trials, the jurors participated via Zoom from their homes’ comfort—couches, dining rooms, and home offices. This event, which seems to have been the first virtual summary jury trial in the United States, was even broadcast live on YouTube.

The swift transition to online legal proceedings has brought about several advantages, such as increased convenience and attendance, as well as some disadvantages. It has also raised various unanswered questions, including concerns about the credibility of witnesses. However, the most noticeable impact of this shift to online trials has been on jury selection and participation. Psychologists have sprung into action, delving into existing literature and gathering new evidence to maximize the benefits and minimize the drawbacks of virtual trials.

“Abruptly, we had to engage people through a device they typically use for streaming Netflix and Hulu,” explained Amy Stewart, JD, the founding partner of Stewart Law Group, which represented the insurer in the groundbreaking Texas summary trial. “Considerable thought went into how to produce this television-like show that is, in fact, a jury trial.”

This question, among others, became pressing as the nationwide lockdown compelled legal proceedings to either halt completely or transition to the virtual realm. While some jurisdictions waited for restrictions to ease or chose socially distanced, masked in-person proceedings, many courts embraced the concept of virtual trials. Even the U.S. Supreme Court conducted oral arguments using conference calls.

“This is significant because the legal field is inherently quite conservative,” noted Ken Broda-Bahm, PhD, a senior litigation consultant at ThemeVision, a trial consulting service of Barnes & Thornburg LLP, a Los Angeles-based business law firm, and an expert in legal communication. “Tradition shapes it, so it took something like a pandemic to prompt serious consideration of a substantial departure from tradition.”

“Research indicates that things have deviated from the norm,” stated Amy-May Leach, PhD, a professor of forensic psychology at Ontario Tech University who led a review of psychological research concerning COVID-19’s impact on the courtroom. “Under these protective measures, the delivery of justice differs from how it was before COVID-19.”

Balancing Advantages and Obstacles As it became apparent that the COVID-19 pandemic would persist beyond a few months, courts nationwide, like many other industries, sought ways to transition their operations online. For certain legal matters, such as motion hearings and status conferences involving only judges, attorneys, and clients, the shift was relatively straightforward.

When witnesses are involved, things become more complex, but even these types of hearings were conducted virtually during the pandemic with moderate success. The central question, however, revolved around whether fully-fledged jury trials could effectively take place in the online arena. Could attorneys effectively convey their arguments through a computer screen? Would remote jurors be easily distracted by roommates, pets, or social media while tuning in from home? And perhaps most crucially, would justice truly be served?

While the extent of adoption varied, courts have conducted numerous civil jury trials remotely since the pandemic’s onset. With both parties’ consent, some criminal trials also proceeded online. Nonetheless, a major concern in such cases is whether virtual hearings adequately uphold defendants’ constitutional rights, explained Dennis Stolle, JD, PhD, APA’s senior director of applied psychology and a former legal consultant with over two decades of experience. The Sixth Amendment’s Confrontation Clause safeguards the right to cross-examine witnesses during a criminal trial—does video conferencing truly uphold that right?

 

Courtrooms often exude an air of grandeur and formality, adorned with wood paneling, the presence of the American flag, and vigilant security personnel. However, might behavior and decision-making differ when placed in more familiar surroundings—say, the living room or break room at work?

“When individuals step into a courthouse, they may appear casual,” explained Judge Richard Young from the U.S. District Court for the Southern District of Indiana. “But upon encountering the courtroom, complete with jury chairs, the judge’s bench, and the judge donning a black robe, they quickly recognize the gravity of the setting and adjust their behavior accordingly.”

In spite of lingering uncertainties, virtual trials have presented considerable advantages, which is why they continue to be employed and are likely to persist in some form, according to Stolle. The convenience and cost-saving merits of participating in a trial remotely should not be underestimated. Jurors, witnesses, legal counsel, and clients can all join proceedings without the need for extensive travel time and expenses related to transportation, childcare, or missed work. Furthermore, courts can operate with reduced staffing and space requirements while managing the same workload. Reports from Texas and Arizona reveal that virtual trials achieved higher attendance rates, indicating their potential to enhance access to justice (COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup, Post-Pandemic Recommendations, Arizona Supreme Court, 2021; The Use of Remote Hearings in Texas State Courts: The Impact on Judicial Workload, National Center for State Courts, 2021).

However, virtual trial participants need access to functioning computers and reliable internet connections. Courts have encountered challenges such as technological training and security concerns. To address these barriers while maintaining safety protocols, some courts have implemented individual kiosks for jurors at the courthouse, though this requires substantial resources and staffing.

“In some respects, we’re trading one set of potential obstacles for another,” noted Jennifer Robbennolt, JD, PhD, a professor of law and psychology at the University of Illinois at Urbana-Champaign and co-director of the Illinois College of Law program on law, behavior, and social science.

Adapting Trials to the Digital Realm While psychological science has long provided insights into court trial dynamics, studying online trials is a novel endeavor that will take time. Laboratory experiments and simulated virtual trials are currently underway, but much of the work conducted by psychologists since the pandemic’s onset involves reviewing and interpreting pertinent literature on attention, memory, persuasion, human-computer interaction, and more.

A critical question for law firms is whether different strategies are necessary to sway a virtual jury. Research on forming impressions suggests that likability and perceived intelligence decrease in an online setting. Establishing rapport becomes more challenging due to fewer nonverbal cues (Fullwood, C., Applied Ergonomics, Vol. 38, No. 3, 2007; Basch, J. M., et al., Journal of Business and Psychology, Vol. 36, 2021). Thus, optimizing elements like lighting, framing, and camera angles becomes crucial, as noted by Broda-Bahm, who also sits on the advisory board of the Online Courtroom Project.

For instance, filming someone at eye level increases their perceived trustworthiness compared to filming from above or below (Baranowski, A. M., & Hecht, H., Empirical Studies of the Arts, Vol. 36, No. 1, 2017). Proper lighting from the front and chest-up framing can enhance jurors’ ability to see and hear testimony and oral arguments. However, while seeing is not always believing, credibility assessments during online trials concern lawyers. Some worry about distinguishing lies from the truth due to fewer nonverbal cues, particularly when cross-examining witnesses.

Psychological research suggests that there is little cause for concern. People appear to be just as adept at detecting deception in an online or audio-only context as they are in face-to-face interactions. In fact, people may over-rely on nonverbal cues when they’re available to form judgments. These findings held steady in a study comparing mock jurors’ credibility judgments of expert witnesses in person, on video, and via audio. The researchers discovered no variance in perceptions of credibility or effectiveness across these settings (Jones, A. C. T., et al., Criminal Justice and Behavior, 2022).

However, it has been observed that individuals might perceive witness testimony differently online compared to in-person. Research on telecommunication suggests that recognizing emotions via video calls, especially with lag or freezing, is more challenging (Schirmer, A., & Adolphs, R., Trends in Cognitive Science, Vol. 21, No. 3, 2017; Bruce, V., Interacting with Computers, Vol. 8, No. 2, 1996). Studies involving witnesses appearing remotely in asylum hearings indicate that their effectiveness in presenting their cases might be diminished compared to in-person appearances, possibly due to receiving less empathy (Bandes, S. A., & Feigenson, N., 51 Southwestern Law Review 20, 2021). These findings aren’t universal, as pointed out by Broda-Bahm, suggesting that empathy levels and emotion detection might vary based on the trial’s context.

Sustaining attention is also a concern in virtual settings, notes Robbennolt. Many individuals who experienced remote work during the pandemic are familiar with the sensation of “Zoom fatigue” after prolonged video meetings.

“Early on, we heard stories about jurors dozing off, cooking, exercising, and engaging in other activities during trials, actions they wouldn’t take in a physical courtroom,” revealed psychologist Dan Wolfe, JD, PhD, a senior director of jury consulting at Magna Legal Services, who studies virtual judicial proceedings through mock trials and other methodologies.

While more data is necessary to address virtual trials specifically, research indicates that recalling witness testimony online is on par with in-person recall (Landström, S., et al., Applied Cognitive Psychology, Vol. 19, No. 7, 2005). Nevertheless, memory could be weaker among those unfamiliar with the technology they’re using, according to Leach.

“For decision-makers, they can remember witness testimony equally well, whether it’s presented in person or online,” asserted Leach. Another memory-related benefit: Remote trials can often start sooner than in-person trials, potentially mitigating memory decay among witnesses over time (Lacy, J. W., & Stark, C. E. L., Nature Reviews Neuroscience, Vol. 14, No. 9, 2013).

Perhaps the most intricate aspect of an online trial is the jury’s deliberation. Some subtleties of group interaction—the tilt of a head, the shifting of a chair—are inevitably lost in the virtual sphere, as highlighted by Stolle. However, in a series of mock virtual jury trials organized by Broda-Bahm and his firm, online deliberations exhibited surprising similarity to their in-person counterparts. A potential upside emerged: Dominant jurors were less common, and participants tended to engage in more purposeful turn-taking, fostering more thoughtful and coherent deliberations, noted Broda-Bahm.

A qualitative study by psychologist Valerie Hans, PhD, a Cornell Law School professor, which observed virtual juries during the pandemic, suggests that virtual juries are at least as diverse as traditional ones. A mock trial involving 25 jurors surveyed by Hans indicated that virtual and in-person jury deliberations mostly showed no substantial difference (DePaul Law Review, Vol. 71, 2021).

Despite no variance in the diversity of jurors in virtual trials, achieving equal participation remains an open question. Some findings cast doubt on whether online meetings genuinely promote equality, with reports suggesting reduced participation among women and people of color. Thus, the verdict is still out, so to speak.

“Whether women and people of color participate more or less during online deliberations is an unanswered question,” Stolle observed. “We can speculate, but what we truly need is direct psychological research addressing this question.”

As protective restrictions ease, court responses continue to vary by jurisdiction. For instance, in Texas, Travis County regularly conducts virtual trials for minor matters with the consent of all parties. In contrast, Dallas and Harris Counties operate entirely in person, while Collin County adopts a hybrid approach. Hybrid trials involve some trial segments conducted online and others in person. For example, in several states, jury selection—traditionally involving convening over 100 individuals for multiple days—continues to occur remotely.

Yet, numerous questions remain unanswered. Nearly every inquiry concerning virtual judicial proceedings inherently raises another question: Could shifting a trial online influence its outcome?

This is a challenge to study, in part because random assignments are difficult outside of mock trials and controlled laboratory settings. Nevertheless, some data suggest that outcomes might indeed be affected. One study proposes that remote defendants often face higher bail amounts (Diamond, S. S., et al., Journal of Criminal Law and Criminology, Vol. 100, No. 3, 2010). Attorneys who exclusively relied on videoconferencing for client consultation during the pandemic also reported challenges in the plea-bargaining process (Daftary-Kapur, T., et al., Law and Human Behavior, Vol. 45, No. 2, 2021).

“As we move forward, psychologists can play a crucial role in evaluating not only the differences between in-person and online outcomes, but also parties’ perceptions of these differences in terms of procedural fairness,” suggested psychologist Donna Shestowsky, JD, PhD, a law professor at the University of California, Davis. Shestowsky is collaborating with the Pew Charitable Trusts to assess online platforms for mediations and negotiations, investigating questions about procedural justice.

Other psychologists are delving deeper into the diversity of jury pools in virtual trials, how expert witnesses, fact witnesses, and crime victims are perceived online, and whether varied participant modes (in person, video, audio-only) result in psychological implications. Addressing these inquiries, among others, is crucial to ensuring that virtual legal proceedings maintain fairness comparable to traditional methods.

“Many advantages exist, and I understand the desire to continue, but research must catch up,” cautioned Leach. “It can be challenging to roll back procedures once they’ve been in place for an extended period, so I encourage people to make measured decisions moving forward.”

Original article by Zara Abrams

Can justice be served online? (apa.org)