COMMENTARY: Justice denied? Compromised? The problem with virtual jury trials

By A. Vince Colella

Nearly three months after the first presumptive positive COVID-19 case was detected, the Michigan Supreme Court is struggling to find ways to continue the essential business of courtroom activity. On April 23, 2020, the Supreme Court, acting under the authority of the Michigan Constitution, exercised superintending control over all state courts. Jury trials were suspended for a period of 60 days (until June 22). The State Court Administration Office (SCAO) further authorized the initiation of pilot projects regarding practices related to how to conduct “remote” jury trials. The question is whether there will be a need to conduct trials remotely or if courts re-emerge in late June to conduct business as usual. While lawyers across the state remain in a holding pattern, a recent order of the Supreme Court may foreshadow what is to come.

On May 6, 2020, the Supreme Court entered Administrative Order 2020-14 (“Continued Status Quo Court Operations and Phased Return to Full Court Operations”).

The Order states, “The Michigan Supreme Court has made clear that during the health crisis related to the coronavirus pandemic, courts must continue to conduct essential functions and are expected to use their best efforts to provide timely justice in all other matters.” Recognizing the health risk courts pose to the public and the need to reduce the spread of the virus, the court concedes that that it is unknown how long efforts to “flatten the curve” will last. However, relying upon local and national best practices to assure access to justice while protecting against the risk of further infection, the Court adopted a 23-page supplement to the 2020-14 Order, setting forth a phased return to operations.

The COVID-19 Guidelines for Michigan Judiciary provide for a 4-phase approach to a “full” return to court activities. While the guidelines are not mandatory and each jurisdiction will be left with unique decisions concerning operations, virtual proceedings will likely be required before in-person jury trials resume. Phase 1 calls for the courts to continue to work remotely “whenever possible and feasible” to keep court staffing to a minimum. During this phase, courts must implement measures to limit gatherings and maintain occupancy rates of 10 or less people. The guidelines authorize moving to Phase 2 when it has been determined that “there is no evidence of a COVID-19 rebound within the local community.” While in this phase, courts are encouraged to continue the use of video and teleconferencing to the greatest extent possible. Similarly, a move to Phase 3 requires local health officials to confirm that there is no statistical evidence of a rebound or spike in virus. However, prior to resuming all “normal activities” and unrestricted staffing (Phase 4), the guidelines require a “public health announcement that COVID-19 has been suppressed within the United States.” A rather lofty requirement, given the current national forecast models issued by the CDC and the time tables for a vaccine.

Considering the recommended criteria for resuming in-person court activity, it appears that virtual jury trials may be the wave of the foreseeable future. Yet, extreme caution is merited here. The critical question is how this may be achieved without threatening the fabric and integrity of the jury process? In theory, empaneling a jury for a criminal or civil trial may seem feasible; however, remote participation is riddled with significant drawbacks. Several uncontrollable variables come to mind.

Will jurors have equal access to advanced technology, i.e., bandwidth and visual monitoring capacity? How would a court limit the number of distractions a juror may experience while viewing a trial from their home? What precautions would be necessary to prevent jurors from immediately accessing information outside of the case that has not been admitted as evidence? Most importantly, how would the “experience” of sitting amongst one’s peers while live witnesses testify, lawyers deliver powerful arguments, and evidence introduced, be replicated?

Jury trials are a foundational element of our justice system and play a vital role in our communities. As we consider their importance amid interim alternative options, we must be careful not to dilute the societal value of the traditional jury trial solely to meet the immediate need for conflict resolution. The Michigan Remote Jury Trial Pilot Workgroup, co-chaired by Judge Carl Marlinga (Macomb County) and Aaron Gauther (Presque Isle County), is experimenting with virtual mock jury trials for peer review. Technology and the remote virtual settings are being put to the test. The research and data produced by these programs should be studied carefully by experienced trial lawyers and judges to determine whether the efficacy of remote trials is not offset by compromising the integrity of the system. Any such compromise could never be warranted, even short-term. While trial lawyers are hopeful that justice can be served remotely when absolutely necessary, we are justified in our skepticism. Indeed, when we closely examine the myriad factors that may contribute to producing unfair and unjust results, our skepticism plunges toward doubt.
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A. Vince Colella is a founding partner of Moss & Colella PC, a Southfield-based law firm specializing in personal injury and civil rights. He can be reached at vcolella@mosscolella.com.