A couple of months ago, I helped to run the Online Courtroom Project’s demonstration jury trial using Zoom. Like a number of other experiments and actual trials going forward across the country, jurors showed up via laptop and camera to view voir dire, openings, witnesses, closings, and instructions, then moved to their own “room” for deliberations. Based on interviews of the jurors at the project’s conclusion, this all seemed to work relatively well. One observation in the OCP report, however, is that the group didn’t feel like a group: “All of the jurors felt they did not have a clear ‘identity’ as a jury and did not have any opportunity to chat or to get to know each other prior to deliberations.” One participant suggested giving the jurors their own space where they could interact informally before trial and during breaks, just as they would during a live trial.
A judge conducting a Zoom trial this month in Seattle reached the same conclusion. In an article in Bloomberg Law, Federal Judge Thomas Zilly notes that, while in-person jurors are able to pass the time by talking about their interests or even sharing cookies, jurors in his Zoom trial weren’t able to have that informal connection. As a result, they did not really know much about each other. Interestingly, in the Seattle trial, the jurors reportedly took that time anyway to chat a bit before reaching a verdict, a process that slowed deliberations according to Judge Zilly. That online difference, and particularly the jurors’ response to it, points to the fact that making space for informal interaction is not just a personal nicety, but is instead key to what we are expecting jurors to do. Courts, whether online or in person, should account for the human group dynamic and facilitate both the time and means for at least some “getting to know you” time. In this post, I will look at the reasons why and the ways courts can facilitate it.
Persuasion Is Personal
The jury’s job is a logical one: To resolve disputes in the evidence and to be the finders of fact. But they’re not just calculators. Through the deliberation process, they are expected to influence each other. That means, to some extent at least, knowing each other. If a persuasive target is truly a blank slate, it is hard to know what to say to them. So when jurors talk about sports, traffic, or the weather, when they tell jokes, and when they share snacks, they aren’t just filling time. They’re also gaining a bit of interpersonal understanding, and building what will be the foundation for communicating to each other when it counts during deliberations. It is very meaningful in the Seattle example that, although the Zoom process lacked the interpersonal space, the jurors simply recreated it at the start of deliberations. Why? Because they understood, implicitly if not explicitly, that it is necessary.
Allow (and Promote) Conversation
There are a few things courts can do to formally acknowledge the need for informal communication. These steps are especially important for online trials, due to the interpersonal barriers that accompany computer-mediated communication. But the steps are important for in-person trials as well.
Provide Space. In a Zoom trial, the jurors should have a waiting room. And I don’t mean Zoom’s “waiting room” (which means being by yourself with just an otherwise blank screen reading “You are in the waiting room”), but an actual waiting room where you can see, hear, and interact with the other jury members while everyone waits for things to get started.
Provide Time. You don’t want to unnecessarily waste the jury’s time in any setting, because they don’t appreciate that. But planning to have the jurors report perhaps thirty minutes early, so they are ready when you are and any technical issues can be addressed, is a good way of providing that time for informal interaction.
Provide Instruction. Let them know that it is okay to talk to each other. When they are on their own, they can talk about anything other than the case (presuming pre-deliberation is not allowed). As part of the early instructions, for example, the judge could say:
We know that your time is valuable, and we respect that. At the same time, just based on the legal process, the technical demands, and the fact that we will need everyone present and accounted for before we begin, there will be some periods of time where you will be waiting. During that time, you are free to chat with each other. In fact, I encourage you to chat with each other. When it comes time to deliberate, you will all have an important decision to reach, and the deliberation will be easier if you feel that you know each other, at least a little bit. So, while we are waiting for everyone to check in and waiting to begin the jury’s portion of this process, you will have your own space that the Bailiff will show you to. And in that space, we encourage you to relax and get to know each other a bit. That not only makes the experience more pleasant, but it also helps you do your job.
Image credit: 123rf.com, used under license