Ride the Lightning

Texas Conducts Nation’s First Criminal Jury Trial Via Zoom

August 27, 2020

You knew this was coming, right? Courts across the country have debated about how to safely and effectively hold jury trials. Expert Institute reported on August 25 that, on August 11, 2020, Judge Nicholas Chu of the Travis County Misdemeanor Court in Austin, Texas presided over a Class C misdemeanor traffic violation jury trial using Zoom as the platform.

The trial was the first case in U.S. history to be tried utilizing a video conferencing platform. The defendant, Calli Kornblau, was charged with speeding in a construction zone, and as part of the virtual trial process, had consented to proceed via Zoom.

The trial was conducted entirely through Zoom and broadcast live on YouTube, with more than 1,000 viewers tuning in to hear trial testimony. The proceeding began at 8:30 am, with the first three hours spent on conducting voir dire of the potential jurors and, importantly, instructing them on how to use Zoom. A six-member jury, with one alternate juror, was impaneled and sworn in after 1:00 pm.

Judge Chu pointed out to the jury that they were making history but also reminded them to remain attentive to the case, even though they were participating in the trial from home. All participants—the judge, prosecutor, defense attorney, defendant, and jurors—were shown on the screen in tiled video feeds. The court had 20 iPads to distribute to any potential juror who did not have a device on which to participate. Ultimately, the court loaned out four devices.

The trial had the usual opening statements, testimony, and closing statements—along with some technological adaptions. Private virtual breakout rooms were available within Zoom to permit the defendant to confer with her attorney, and later, for the jurors to deliberate. The prosecutors and defense attorneys published evidence to the jury through a file-sharing service that was displayed on the jurors' screens.

The prosecutor argued that the defendant was observed driving 51 mph in a 35 mph construction zone. Defense counsel challenged the accuracy of the speed limit and argued that there were no signs present in the area designating it as a construction zone nor were any workers present.

There were minor tech issues – the audio and video feeds froze occasionally. One juror was dismissed prior to opening arguments due to a poor internet connection but was swiftly replaced with the alternate. The jurors began their deliberations shortly before 5:00 pm and returned their guilty verdict in roughly 30 minutes. Kornblau was given a deferred adjudication and ordered to pay a $50 fine along with any court costs.

All things considered, the trial was a success.

The constitutional right to a speedy trial is another concern when weighing the logistical issues of virtual trials against the postponements of in-person trials during a pandemic. While a defendant must be afforded the right to a speedy trial, they also have various other constitutional rights to consider that can be impacted by virtual trials. For example, a defendant's right to confront any witnesses against them may be hampered by video conferencing. As Daniel Medwed, a professor at Northeastern University School of Law, said, "one concern is that video won't allow jurors to assess witness' credibility through demeanor and body language."

Another obstacle, noted by Robert Clifford, a commercial litigation attorney in Chicago, is that virtual jury trials require jurors to have access to computers and stable internet connections, which may prevent some people from serving. "You're not going to get the broad base of representation in the jury pool itself if it's going to take a socioeconomic level of being equipped with a computer and WiFi to even participate so you can hear the virtual witnesses and virtual opening statements. There are some severe limitations we're confronted with right now," Clifford said.

The debate around virtual jury trials has been swirling for some time. We do not yet have anything close to a national consensus about how to resolve all the problems associated with virtual jury trials, but the debate is animated – I am pleased to see that we have made significant progress in figuring out how to conduct virtual jury trials while protecting the rights of criminal defendants. But for sure, there are more challenges to resolve.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
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