• Clayton T. Robertson

To Zoom or Not to Zoom -- That is the Question!

Updated: Apr 18

By Clayton T. Robertson, Attorney-at-Law (Criminal Defense / Civil Litigation Attorney)

A recent controversy hotly debated among trial attorneys is whether Zoom trials in the "Covid Age" are feasible or effective. Another "hot topic" is whether civil attorneys should participate in Zoom or video depositions. This post doesn't aspire to fully answer these questions, but it identifies some very practical issues (including several constitutional concerns as it relates to trials) I noticed when recently watching the mini-opening and voir dire (jury selection) sections of a mock Zoom trial for a civil case. I've also recently seen Zoom focus groups, which is another topic.

For starters, it was utterly frustrating how poor people's internet connections are, how the connections fade in and out, and how video quality differs among participants (even for the lawyers). There were also issues as to whether and when the jurors mute their sound or not (to eliminate background noise on their end, with dogs barking and birds chirping), and the degree to which jurors are distracted during the proceedings (e.g., one potential juror was walking around while answering a question during jury selection while another juror was using his cell phone as his video camera as it was placed on a table, which meant we saw his ceiling more than him). Others were obviously distracted, so there was no way to ensure their attention was focused adequately on the proceedings at hand.

For depositions in civil cases, one challenge with Zoom for the attorney taking the deposition is not being able to view what is happening in the deponent's room -- for example, is the deponent (i.e., the person who is answering the questions) being passed notes by their attorney during questions and being unfairly assisted by their attorney (which would not occur if the deposition were held in-person). These forms of assistance are inappropriate, probably even unethical. This example is one of many challenges.

The above experience was for a civil trial involving "only" money. These issues are all the more challenging and prejudicial to a criminal defendant whose liberty is at stake, where even a few moments of interruption affecting a juror (e.g., internet connection/quality cutting in and out or some other distraction) can be utterly prejudicial in terms of that juror missing a key piece of evidence or an important snippet of testimony. Now magnify this problem across 12 jurors and across the number of minutes, hours, and days in the trial, and you have a significant problem.

I've communicated with a well-known jury consultant about his thoughts on these Zoom trials. I'll keep his identity anonymous. Here are his thoughts, at a practical level:  "What I’ve been doing to try to block jury selection and trial by Zoom is to appeal to the judges’ need to control jurors, by reminding them that when jurors are at home, the judge can’t supervise them. They can easily research the case online—they’re sitting right there on a computer, and the judge can’t see what they’re doing. They can easily multitask; in court, the judge can tell if a juror is doing work or being distracted. On Zoom, a juror can easily take a break and tell the judge there was a 'family emergency' or they 'lost internet connection' without the judge being able to stop them."

Another issue -- at a very important constitutional level -- are the problems associated with a defendant in a criminal case not receiving a fair trial or due process. For example, it's well-known that most "communication" is through body language, so an attorney's or a juror's ability to observe the body language and demeanor of a witness can be significantly impaired. (On the other hand, for jury selection, I noticed that the close-up images of juror faces on the video screen was helpful for reading facial cues, but not for other cues that we also want to examine as we interact with jurors at a trial.) Moreover, trials are supposed to be public, so depending on the procedures, Zoom trials likely violate this time-honored public right to participate in the judicial system to ensure the integrity of the process.

I hope this information helps as we face again the prospect of more court closures or limitations, with corresponding pressures to accept possibly unreasonable alternatives.

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