Advocacy Through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference

Abstract

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?

While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts eventually allow digital jury trials, certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.

Keywords: coronavirus, Simler v. Connor, NBC Subsidiary, Inc. v. Superior Court, COVID-19, seventh amendment, trial by jury, law, confrontation clause, criminal law, constitutional law, due process, zoom, Waller v. Georgia, Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts