HEALING OUR REPUBLIC WITH A COVID-19 ERA INNOVATION: ONLINE JURIES AS A BARRIER TO DEMOCRATIC BACKSLIDING

Abstract

The coronavirus (Covid-19) pandemic reshaped modern life. Unprecedented demands like “social distancing” gave long-standing institutions an abrupt choice: adapt or die. The realization in mid-2020 that Covid-19 was here to stay forced courts to evolve. Temporary changes fueled by necessity eventually became embraced for convenience; courts grew reliant on online platforms like Zoom. Benefits for lawyers, judges, and jurors included increased access, convenience, efficiency, transparency, and civic-education opportunities. Across organizations, a key adjustment involved increasing their reliance on the Internet. While the pandemic exacerbated America’s interrelated (a) democratic and (b) epistemic crises, the pandemic-era integration of the Internet with governance represents a rare instance where the Internet did not hurt, but instead helped, democracy.

Amidst modernity’s disorienting disconnection, the Internet’s potential to increase the frequency and transparency of jury trials is exciting. Hurdles exist. Scholars express trepidation about online criminal trials, flagging the Sixth Amendment’s Confrontation Clause (can a defendant “confront” witnesses in cyberspace?). Privacy concerns are also concerning; what if jurors or third-party hackers record confidential proceedings like jury deliberation? During the pandemic, other factors—especially the constitutional guarantee granting criminal defendants a “speedy trial”—trumped concerns surrounding technology.

As the pandemic recedes and the exigencies that motivated change dissipate, courts that have already held online criminal and civil jury trials may backpedal. That would be mistaken. For even as our pathogenic crisis ends, our democratic and epistemic crises are nowhere near closure. Increasing the number of jury trials—in decline for decades—can reinvigorate an institution that philosophers such as John Stuart Mill & Alexis de Tocqueville, as well as the Founders, viewed as essential to successful self-governance.

Covid-19 revealed that even the most traditionalist institutions are not static. They are dynamic. Their ability to weather crises depends on their willingness to change. The constitutional and pragmatic problems posed by pandemic-era modernization efforts in courts have already been discussed by lawyers, scientists, and cyber-security experts. Still undiscussed are the pro-democratic implications of the continued, post-pandemic use of the online jury—and its potential to mitigate the negative effects on democracy of societal (not only biological) illness. Although the Internet generally divides rather than unites society, merging the Internet with courts may ameliorate both our epistemic and democratic crises, increasing social cohesion when Americans are more polarized than ever.

Our crises are not intractable, and the Internet is not inevitably a source for social entropy. Some uses, such as to increase the frequency and visibility of jury trials, are sources for social cohesion. Insofar as the Internet is used to counter pathologies like increased disinformation with time-proven societal glues like juries—beacons of direct, participatory, informed, and deliberative democracy—the web can connect us rather than, like a spider web, enrapturing us only to trap us.

Keywords: civil juries, coronavirus, online jury trials, the internet, political psychology, social entropy, social cohesion, political science, the sixth amendment, speedy trial, confrontation clause, videoconferencing, zoom, civil jury project