May 15, 2020
Not only have jury trials been suspended in both Vermont and New Hampshire (and, I believe, in every other state as well), there is really no way of knowing when they may start up again. In the meantime, the constitution still demands that criminal defendants be given a speedy trial.
Some courts are evidently considering trial-by-video.
Might this work to the disadvantage of criminal defendants? I’m not sure.
A series of simulated criminal trials in Australia, as reported in this article, suggests that the answer may be no. In one of the studies, criminal trials were held in which mock jurors were randomly assigned to different configurations, including:
- a defendant sitting in the dock in the courtroom,
- a defendant sitting beside their lawyer in the courtroom,
- a defendant appearing remotely on their own (as they would in most standard remote hearings),
- or a defendant appearing with their lawyer in a video hearing, with the prosecutor also appearing on video.
Defendants appearing via video were no more likely to be found guilty than if they were sitting beside their lawyers in court. Only those defendants isolated in a dock – the normal situation in most courts in Australia, but not in the United States – were significantly more likely to be considered guilty.
Other research, however, points to different issues with video hearings. In criminal matters, defendants who appear remotely from police custody or jail are more likely to have a higher bail set, plead guilty and receive longer sentences than those who appear in person.
More problematically, if a trial is being conducted by Zoom, how do we know if a juror is even paying attention? What if you want jurors to handle a particular piece of evidence? And how are they going to deliberate?