The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Criminal Law

No Problem with Juror Being Remote Because Wife Might Have COVID, If Defendant Consents


From yesterday's Ninth Circuit decision in U.S. v. Knight, by District Judge Robert Lasnik (W.D. Wash.), joined by Judges Sidney Thomas and Mark Bennett:

In July 2019, two stores were robbed in Sparks, Nevada. After a six-day trial, Knight was convicted of the robberies and sentenced to 169 months' imprisonment followed by five years of supervised release. We consider in this opinion Knight's argument that the convictions must be vacated because the district court structurally erred by permitting a juror to participate remotely in the first two days of trial….

Knight's criminal trial began on March 8, 2021, with jury selection. The jury was empaneled that day. The next morning, Juror 10 notified the court that his wife was ill. Given the possibility that Juror 10 could be infected with the COVID-19 virus, the district court conferred with the parties to determine how best to proceed, proposing three options:

One is to allow [Juror 10] to participate in the trial by Zoom. He could listen to the testimony, view the evidence by Zoom, and if by the time the jury begins deliberation he is—his wife is clear, then he can join the deliberation; if not, then I would dismiss him at the time if he could not join the deliberation. That way, I still have two alternates for awhile [sic].

The second option is to dismiss him and have one alternate for the trial, really, before opening even starts.

The third option is to delay trial until [Juror 10] can – is, essentially, permitted to return to normal activities.

The government preferred that Juror 10 be excused from service, citing potential technological problems with remote service. Knight's counsel recognized that sharing exhibits with a remote juror would require a collaborative solution and that the juror should be admonished to not access the internet, not use his phone, and devote his full attention to the proceedings, but preferred the first option over dismissal or delay. [Knight then expressly consented to having Juror 10 watch via Zoom.—ed.]

At the end of the day, the district court noted for the record that she and her clerk could see Juror 10 on their computer screens and that the clerk and Juror 10 had established a procedure for him to notify the clerk if he were not able to hear or see what was going on in the courtroom….[Later, d]efense counsel reiterated that Mr. Knight fully consented to the juror's remote participation, but he declined to waive his client's right to attempt to vitiate that consent on appeal or to challenge a defect that might arise out of the remote participation. The district court recognized that there might be challenges raised on appeal, such as an assertion that the waiver was not knowing and voluntary or an argument that the asserted right to an in-person jury cannot be waived, but wanted Knight's agreement that "he's not going to challenge his own consent to have [Juror 10] participate by video." Defense counsel offered to "make a full record that [Knight] absolutely was advised appropriately, and that he fully consents, and that his consent … is knowing, voluntary, and intelligent, a hundred percent." [Knight so stated.—ed.]

On appeal, Knight asserts that permitting a juror to participate remotely in his criminal trial violated his Fifth and Sixth Amendment rights, that the error was structural and could not be waived, and that he is therefore entitled to a new trial without having to show prejudice. We will assume without deciding that criminal defendants have a constitutional right to the in-person participation of jurors during their trial. Nevertheless, Knight has not shown that a violation of that right constitutes reversible error in the absence of resulting prejudice.

Structural errors "infect the entire trial process," and "necessarily render a trial fundamentally unfair." They are also "rare." The Supreme Court has "repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal." Indeed, "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred" are not structural and are subject to the harmless-error analysis of Fed. R. Cr. P. 52(a). The limited circumstances in which structural errors have been found include a biased trial judge, denial of counsel, denial of self-representation, denial of public trial, race discrimination in the selection of the grand jury, directing entry of judgment in favor of the prosecution, a defective reasonable-doubt instruction, and failing to give oral instructions to the jury. Defining features of a structural error include that (1) it deprives defendants of the "basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence," and (2) it "def[ies] analysis by harmless error standards" because (a) the right at issue protects some interest other than avoiding erroneous convictions, (b) the effects of the error are difficult to identify or measure, and/or (c) the error is of a nature that "always results in fundamental unfairness,"

Knight asserts that the error alleged here, namely allowing a juror to participate in a criminal trial via Zoom, is akin to depriving him of his right to a jury trial, depriving him of his right to a fair and impartial jury, depriving him of a representative jury, and/or depriving him of his right to confront witnesses. None of these comparisons is apt. There is no indication in the record—and no reason to suppose—that the remote participation of a duly empaneled juror interfered with the functioning of the jury, somehow made that juror partial or unrepresentative, or impacted the procedures used for the presentation of witnesses.

Unlike a deprivation of counsel, a biased adjudicator, or the failure to ensure that the jurors are instructed on the law, allowing remote juror participation does not impact the entire framework of the trial in ways that cannot be accurately measured on review. Rather, it merely creates room for the types of problems and errors identified by Knight, such as difficulties in seeing exhibits, hearing testimony, and/or viewing witnesses. But none of those errors will necessarily arise simply because a juror is participating remotely. Knight asks us to presume that the remote participation of a juror will always render a trial unfair and the judgment unreliable, but there is no case law or record evidence to support such a presumption. {In fact, jurors, attorneys, and trial judges who have participated in remote trials largely commend the process, noting advantages in observing witnesses and assessing body language and demeanor.} The alleged error simply does not fall within the limited class of structural errors that cannot be waived and which require automatic reversal.

The court therefore concluded that, because "[n]on-structural errors can be waived," and because the defendant expressly consented to the juror's remote participation, there was no basis for reversing the conviction:

The procedure that the district court used in this case to confirm that the waiver was knowing, voluntary, and intelligent was sufficient. Knight was specifically informed on several occasions that he had the right to insist that all jurors be present in the courtroom and, when questioned by the district court, he indicated that he understood that he had that right. Knight was present when the various options for dealing with Juror 10's situation were discussed, including the juror's dismissal and replacement with an alternate. He was present as counsel identified all the things that could go wrong with remote participation. And he affirmatively indicated that he understood what was going on. Having had the opportunity to confer with counsel, Knight chose to waive the right to have all jurors participate in person and agreed to Juror 10's remote participation.

The district court found that the waiver was knowing and voluntary. Knight concedes that he consented to remote juror participation, but argues that the district court did not obtain a valid waiver because it did not inform him of the constitutional nature and implications of waiver. The argument is unavailing. It fails in light of Knight's knowing, intentional, and voluntary abandonment of the claimed right. The district court repeatedly advised Knight that he could insist on in-person juror participation at any time, ensured that Knight spoke with his counsel about the waiver, and fully considered concerns raised by both parties….