The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal courts are adapting to the COVID-19 outbreak by increased use of video teleconferencing. Courts, however, are generally "continuing" jury trials—a legal Janus word meaning "delaying." It is difficult to assemble a jury when everyone must stay at home. Or is it?
The alternative: trial by videoconference. Back in 1998, Paul Carrington argued that this was the thing of the future. As he predicted, videoconferencing has indeed improved in quality greatly since then, but widespread use of improvements like virtual reality remains in the future. Trials are still conducted the old-fashioned way, in person. One reason is concern that that might violate due process; indeed, some have argued even that the use of video for hearings on issues such as bail reviews offends constitutional rights. Should the COVID-19 pandemic last long enough, however, perhaps some court will give trial by videoconferencing a try. Appellate courts might well uphold this procedure on emergency grounds.
But emergencies sometimes beget innovations that endure. Carrington's article suggests that trial by videoconference might have much to commend it. The potential benefit derives from the fact that as long as a trial is to be conducted by video, the entire video can be prepared in advance. The role of attorneys then fundamentally changes. Instead of preparing to battle it out in front of the jury, lawyers can serve a role more akin to that of movie producers, assembling video clips from contested depositions. This greatly simplifies the challenge of scheduling trials, since not every deposition need be conducted at the same time. Moreover, judges need not be present at depositions. Instead, a judge can rule on most evidentiary motions after a deposition, with the consequence of a successful objection simply being the deletion of a relevant section of the video. There is no need for jurors to twiddle their thumbs while a trial is halted for some evidentiary issue, as all such issues could be resolved in advance. Moreover, if a judgment is overturned on evidentiary grounds, the cost of retrial will be much lower—the cost of assembling a new jury to view an edited video and then deliberate.
What is lost? One argument might be that jurors are less likely to be able to make credibility assessments. But claims about the ability of jurors to serve as effective lie detectors are largely debunked. A meta-analysis concludes that people just aren't very good lie detectors in general, "correctly classifying 47% of lies as deceptive and 61% of truths as nondeceptive." Credibility evaluation is not generally easier in person. One study, for example, showed that police officers performed no better than chance at detecting deception, whether by interrogating suspects or by viewing videos of such interrogations. More relevantly, studies show that subjects are better at lie detection with audio only feeds than video feeds. One study, for example, found that a low-quality video degraded lie detection performance relative to a high-quality video, but that "performance improved when the video was severely spatially degraded," effectively forcing viewers to focus on the audio. This may even argue for audio-only trials, but at least suggests that high-quality (or very low-quality!) video assessments should not be much worse than in person assessments.
Perhaps the more difficult question is whether having jurors in separate rooms communicating via videoconference would degrade the quality of deliberation. What does seem to improve lie-detection ability is group discussion. This study suggests that online and face-to-face deliberations (on policy issues, rather than in a trial) produce similar results; another suggests that there may be more unequal participation in an online forum than in person. Certainly, more work would be useful. But a telejury might be better than no jury. And in the long run, after COVID-19, the question whether evidence should be viewed by jurors through prepared video can be assessed separately from the question whether jurors should view the evidence and deliberate in the same physical space.
Even if in-person trials are somewhat more accurate than videotaped trials, that does not necessarily resolve the question of which is better. A system of trial by videoconferencing could be considerably cheaper than traditional trial, for the reasons above. Many have worried about the "vanishing jury trial." Might it not be better to have more jury trials (even with the possibility of some quality degradation)? At least, there could be experimentation with civil trials.
To be sure, the inherent conservativeness of our legal institutions makes it unlikely that trial by videoconference will become common in nonemergency situations in the near future. But the standard approach endures largely because that's how it's always been done. Perhaps it would approve superior to trial by videoconferencing if both were tested, but we'll never know if experimentation never occurs.