Remote juries bring problems of fairness, attorneys warn

Can juries decide cases remotely? Technically, yes. But some attorneys aren't enthusiastic about the idea.

"I confess I'm a great skeptic," said San Diego-based Michael A. Attanasio, who chairs Cooley LLP's litigation department.

There are three related problems with virtual juries, according to some attorneys: attention spans, appeals and shutting out lower-income jurors.

"You're basically excluding from jury service jurors who don't have an adequate internet connection, or adequate computer technology in their home," Attanasio said. "It's a pretty short step to imagine that outcome is one that brings with it socio-economic implications with it as well, not unlike what is going on in education today."

This is a reference to the virtual school year millions of children are experiencing. Even after school districts spent millions of dollars on laptops and other gear, many students are now occupying their family's only internet connected device for hours each day. Many students are still falling behind.

Any factor that limits jury pools could lead to constitutional challenges. Attanasio is one of scores of attorneys around the nation who have warned of this potential problem.

"There is a realistic possibility that neither plaintiffs nor defendants will have access to the jury of their choosing or a jury of 'their peers,'" due to connection issues, Vincent N. Barbera and Thomas B. Fiddler, partners with Williams & White LLP in Philadelphia, wrote in a July post on the firm's blog.

Just like teachers, judges would need to monitor that jurors were paying attention to the trial and not their Twitter feed. Some schools have set up systems where teachers can see what else is on a student's screen, though Attanasio said privacy protections could make this untenable for courts.

In place that have opted for virtual juries, juror instructions now also include reminders to pay attention and stay off social media. But problems showed up quickly.

"Count me as one of those people who have issues with virtual jury trials," said Robert S. Shwarts, a partner with Orrick Herrington & Sutcliffe LLP in San Francisco. "I don't think it's fair to any of the litigants. I don't care how lawful they are."

He pointed to Fryor-Knowles v. Alameda Superior Court, A160427 (Cal. App. 1st, July 8, 2020). Defense counsel complained about jurors sleeping and not paying attention during remote voir dire.

Shwarts is giving his clients different advice: Stipulate to smaller in-person juries as a safer way to move matters along. The California Constitution sets 12 as the standard jury size, but allows parties to agree to fewer. This meshes with federal law setting juries at a minimum of six people.

"If it's good for federal, it's good for state," Shwarts said.

The California Judicial Council's Pandemic Continuity of Operations Resource Guide urges courts to use virtual appearances as much as possible. But the guide's section on juries suggests staggering arrival times, enforcing social distancing and other means of staying safer in person.

Washington state's court guidelines, meanwhile, explicitly say, "Jury duty will be in person." It cites the "constitutional rights of the accused" as a major reason.

But the case for virtual juries is also clear: avoiding COVID-19 infections and persuading people to serve.

"There are going to be a lot of people who are not going to show up," said Gerald L. Sauer, a partner with Sauer & Wagner LLP in Los Angeles.

San Diego County Superior Court Presiding Judge Lorna A. Alksne said last week that only 5% of jurors in a recent call-up ended up in a jury pool, though her court only restarted jury trials earlier this month. Los Angeles County judges have anecdotally reported just one in five jurors showing up. Sacramento County Superior Court Jury Commissioner Paul Thorn said his court has about a 36% juror appearance rate, with numbers improving.

It was also difficult to get people to show up for jury duty long before the pandemic. The National Center for State Courts has estimated that nearly 10% of jurors do not appear under the best of circumstances. Even larger numbers miss their dates because of notices sent to out-of-date addresses or other factors beyond their control. The center found that between excused jurors and no-shows, only about a third of jurors noticed make it to court on the appointed day.

Sauer noted that new laws designed to make jury pools more representative could also increase the overall size of jury pools. He pointed to SB 592. This law, which will go into effect in January, requires that tax rolls be included along with voter registration and Department of Motor Vehicle records as sources for jury pools.

SB 592's author, Sen. Scott Wiener, D-San Francisco, argued younger people and racial minorities are less likely to register to vote or own a car. Last year, Gov. Gavin Newsom signed SB 310, allowing many felons to serve on juries.

Sauer said he's still "on the fence" about virtual juries. His concerns echo those expressed by many other experienced trial attorneys.

"I view a jury trial similar to being at a concert or a play," he said. "It's a collective experience. Only if you're together in person do you get the full impact."

Attanasio agreed. As a thought experiment, he suggested trying to picture the climatic courtroom moments in movies as Zoom calls. He cited Paul Newman in "The Verdict" and Joe Pesci in "My Cousin Vinny."

"None of it works without the physical space," Attanasio said.