By Brian J. Carney
BridgeTower Media Newswires
I once tried a case during which a paperclip fell from counsel table and landed on an upside-down electrical power outlet, blowing out the electricity.
Defense counsel proudly claimed he knew his closing was going to be explosive. The trial lawyer never could have planned for that happenstance, nor estimated the true impact his quick wit would have on the jury.
Years ago, I prosecuted a case in which a juror fell asleep. Concerned that a juror who did not hear the evidence would have a difficult time finding guilt beyond a reasonable doubt, and with no help from the court officer, I requested a sidebar conference and asked the judge to “wake up” the juror.
It was a prosecution for unlawful distribution of cocaine. The theme of my closing argument, which I drew on the chalkboard: 1. Needs; 2. Access; and 3. Pattern (of behavior). I wrote each word directly below the other so the word “NAP” was created.
After the successful verdict, the court officer scolded me for my request to the judge to wake up the juror.
No matter whose job it was, making sure the juror was engaging in the process was absolutely necessary for justice to take place.
Trials are not simply an exercise in asking and answering questions; they involve real-time drama and intangible elements.
Justice is about more than simply a fact-finder coming to a conclusion after listening to words spoken “on the record” by testifying witnesses from a witness stand.
True justice requires a proper setting and live human interaction of all participants.
The necessity of live human interaction
Certain types of human engagements require actual physical presence and interaction. Trials, especially important ones, must be done with everyone present, conscious and engaged.
Why is it important for a witness to be competent to testify? Because without that requirement, justice cannot be achieved. Why does the law preclude ex parte communications? To ensure fairness and, ultimately, justice. The same answer explains the constitutional requirement for face to face confrontation of witnesses.
Why is it important for jurors to remain awake and for jury trials to be conducted in a live setting? Because the emotional and subtle truth-finding elements of the process would otherwise be forever lost.
Have you ever noticed the huge difference between watching a movie by yourself and watching the same movie in a crowded movie theater? While you are consuming the exact same content, there is a live human interaction factor (i.e., a crowd factor) that decidedly changes the experience, not to mention the screen size. Another example is the incomparable experience of watching a baseball game on television versus sitting in the stands at Fenway Park.
Similarly, in a courtroom there is so much human activity and other intangibles — including the history, tradition and apparent gravitas of the setting — that change the experience for everyone.
There also are emotional moments that can only be experienced by being there in person.
This subtle distinction between live and virtual experiences in litigation has been around since the launch of Court TV in 1991. For anyone who has ever been present at a high-profile trial, the discrepancy between actually being present in the courtroom (e.g., Michael Skakel) versus watching the verdict on TV (e.g., O.J. Simpson) is substantively, and strikingly, unmistakable.
Countless nuanced communications and physical interactions are constantly happening in a jury trial at the exact same time, and most courtrooms are physically set up so that the jury has a front row seat to the theater of the trial. Great trial lawyers capitalize on their interpersonal skills to utilize, leverage and maximize these emotional opportunities for persuasion. The theater of the courtroom not only has actors with scripts, it has props, visual aids and unexpected human interactions and reactions.
Courtrooms involve truth, lies, pain, suffering, anger, forgiveness, hatred, justice and injustice. These characteristics of the live trial are witnessed not simply though the words elicited via testimony, but rather through the visual cues and subtle body language being constantly and simultaneously exchanged between each of the players.
The judge, the lawyers, the witnesses, the court officers and even fellow jurors’ reactions matter and influence outcomes. Indeed, the physical reaction of the public audience (like in a movie theater), while not technically evidence, certainly can impact juror perceptions of truth and falsity.
This human interaction aspect of jury trials is profound yet mostly goes unnoticed and unspoken. Exploitation (by lawyers) of the benefits of this communication channel is learned through experience and not taught in law school. The ability of a lawyer to exercise and harness this skill is one of the elements that distinguishes the successful lawyer from the run-of-the-mill.
While I am an avid proponent of technology in the courtroom (to enhance the communication experience and overall understanding of the dispute), I am not an advocate of technology being employed as the courtroom.
For some limited types of hearings, it makes sense not to bring everybody into the courtroom (scheduling, delay, costs, etc.), but for important hearings and trials at which substantive testimony and arguments will be conducted, I see serious problems with acting as if the same level of seriousness, persuasive communication and, ultimately, justice can be achieved, whether live or virtual.
In August, the Florida Bar News touted the first virtual jury trial in the Fourth Judicial Circuit as a technological success and “a milestone in moving forward.” But the article actually provides a blueprint for recognizing the flaws.
Major concerns
#1: Not “a real trial.”
The Florida trial judge stated: “To me, it felt like a real trial and it looked like a real trial.” The problem, as explained above, is that a real trial includes intangible aspects of human behavior and interaction that is missing when it is converted to a multi-screen display of talking heads, held not in a historical building but rather in someone’s living room. In reality, it looked nothing like a real trial.
Multi-screen display is different. Indeed, one of the attorneys said it was impossible to see the entire jury panel. If a lawyer cannot see the entire jury panel, it is not “like a real trial.”
#2: Technology has limitations.
Remote jury service can exclude certain groups that do not have adequate internet service or that are not comfortable using the Zoom platform. In the Florida case, “[t]o handle prospective jurors who lacked technology, court officials set up remote computer terminals at local libraries.” The reality is that technology is not always available to everyone. It would be inherently unfair to allow lower quality technology to negatively impact the comprehension or effective communication of the details of a case by witnesses, lawyers, jurors or the judge.
#3: The lawyer’s ability to do an effective job assessing how the evidence is impacting the jury can be harder, if not impossible.
“One prospective juror [in the Florida case] tested the bounds of court decorum,” the judge said, “when he reclined on a bed and, possibly because of the angle of his iPhone camera, appeared to be closing his eyes.” Napping in a juror seat is far different than napping in your bed at home.
#4: With technology, often one side benefits.
The plaintiff’s attorney in the Florida case said the trial “was a triumph for his client, with the jury awarding her more than he requested in closing arguments.” I’m not sure if that is a fair statement given that only one side, the plaintiff, presented evidence. Opposing counsel was not even present for the trial. If parties agree to a virtual forum, it seems such a convenience might make sense in certain circumstances. However, my strong belief is that the virtual trial should not be considered as an option when either side objects.
#5: Logistics and resources make virtual trials impractical.
It takes more bodies and auditors to ensure technology is operating smoothly.
Will justice be done?
It boils down to whether you believe, as I do, the setting provides a level of gravitas that ensures everyone takes the process seriously and human involvement is an essential aspect of our justice system.
I do not believe justice can be accomplished remotely.
When justice truly matters, in-person human beings judging their peers and receiving the exact same information, at the exact same time, under the exact same conditions, in a controlled setting, in the same room, each possessing the ability to employ their wisdom as a guide, are necessary guarantors of justice.
Human beings have emotions, show mercy, understand people make mistakes, and they fight for the underdog. These elements somehow get lost with the introduction of electronics in a virtual trial.
Virtual courtrooms ought to be limited to procedural issues and non-substantive or minor matters.
Criminal courtrooms and courthouses ensure seriousness and a distraction-free forum that jurors sitting in living rooms, bedrooms and diningrooms do not enjoy.
I think it is time to return to the “old normal” and bring justice back to our justice system.
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/subscriptions
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
