The courtroom is a special place, and there are both symbolic and substantive layers to that special status. At the symbolic layer, there are the physical trappings of the courtroom: Dark wood, granite, columns, raised benches, bars, and flags. But at the substantive level, there are the principles that a courtroom is a space that is open and accessible: Everyone, regardless of resources, circumstances, or station, should be able to participate in the public resolution of disputes. As remote online trials have moved in the past year from experiments to binding verdicts, critics of online trials have focused on both of these layers. They’ve said that online trials symbolically  lack the natural gravitas and solemnity, and substantively fail in providing representative access. As we learn more about the early online trial experience, the symbolic effect appears to be uncertain while the substantive effect seems to trend the other way. 

Cornell University Law Professor Valerie P. Hans is one of the nation’s leading authorities on social science and the law. In a current research paper (Hans 2021), Professor Hans reviews the data on our experience with virtual trials thus far. Focusing on the “Pioneering judges, lawyers, court administrators, and trial consultants” who have worked on developing procedures and chronicling the lessons learned from virtual civil jury trials, she reviews what courts have done (providing a handy list of the tests and trials conducted thus far), and summarizes both the anecdotal experiences as well as more systematic reviews at this stage. She also shares some findings from her own ongoing research. The balance of the feedback suggests that the case for online trials expanding  access is a very strong one. That substantive advantage, in my view, justifies a little risk to the symbolic components. In this post, I will highlight these findings from the article and their implications for the future of the online trial.

The Symbolic Risk

It seems that much of what leads to an initial and reflexive rejection of online trials is the notion that moving images on a screen can never live up to a physical courtroom experience. Some of these sentiments are captured in the research as well. For example, one juror in Hans’ research comments, “there’s less of that human connection” in an online environment. Another adds, “body language was not as good and we had less invested in the outcome. Sitting in the same room as the people in the trial gave me more of a stake in how they were ultimately treated.”

In addition to the lack of physical presence, there are also the challenges of the online infrastructure. Professor Hans notes that technical problems have been nearly universal in both the pilot tests and the actual online trials so far. For many critics of online trials, that is enough for them to conclude that a Zoom room is not and can never be a true courtroom.

The Substantive Advantage

Noting that widespread use of video conferencing over the past year has led to greater comfort and competence with the technology, and that accommodations have been made to bridge gaps created by technology and network access, Professor Hans notes the common view that online proceedings have increased access for many parties. Regarding the jury pool’s representativeness in online trials, she reports on general agreement from the judges who have tried it that there is no diversity disadvantage, and there may be an advantage. She quotes both Florida Judge Jennifer Bailey (Juries are “at least as diverse as pre-pandemic, or even more,”) as well as Presiding Judge Rogers of King County Washington (“The jury pool is far more diverse than it used to be and that’s a really good thing”).

For witnesses and party-appearances, Professor Hans quotes Elizabeth Thornburg who supervised an online trial project in Texas last May and June, noting the advantages of virtual presence:

It turns out that it’s easer for certain people to testify or participate in a hearing on Zoom…. The judge told me a story about a woman who participated while wearing her Walmart uniform sitting in the Walmart dressing room on her break. She was able to participate in this hearing that affected her life without losing work. It has increased access for a number of citizens in Texas.

Focusing on the jurors’ experience, Hans reports that 80 percent of the venire members in Florida’s pilot projects preferred remote jury selection. There is also a feeling from judges and attorneys that potential jurors are more forthright and candid when responding from home, and this advantage can be particularly strong when paired with the substantive online questionnaires that often accompany online jury selection.

Professor Hans also reports on her institution’s own ongoing study comparing the virtual to in-person juror experience on the same trials. Focusing particularly on those in the sample who have experience with both, she notes that many in that group reported appreciation for the convenience and reduced time commitment in participating from home. One explained,

As a disabled person being able to attend to my needs while also being able to attend this event was a huge advantage. I truly hope we as a society start making more use of the advances technology gives us where accessibility is concerned.

As a final point on improved substantive accessibility, Professor Hans observes that public access has dramatically based on the choice to publicly stream proceedings in many venues, including the U.S. Supreme Court and Tax Courts, as well as state courts most notably in Texas, Florida, and Washington.

The Tie-Breaker: 

Professor Hans concludes that the access advantage is real: “Public access in civil jury trials has not been lost; on the contrary, in some instances, it has been expanded. What is more, the courts were forced by circumstance to develop a technological framework for public access, which may bode well for a continuation of this expanded public access.” She doesn’t explicitly reach the next conclusion, but taking advantage of the fact that my platform is a blog and not an academic publication, I will: The substantive benefits of improved access should outweigh any perceived risk to the symbolic role and gravitas of the courts.

That is not to say that the symbols are unimportant. The physical features of the in person courtroom are there for a reason: They instill respect and communicate legitimacy. Future experience with online trials should also explore ways to reinforce these messages in a virtual environment. But if we have to accept some deviations from the idealized and pre-pandemic functions of a physical courtroom, it seems only reasonable that we would do so in order to improve access for parties, witnesses, and jurors.

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Hans, V. P. (2021). Virtual Juries. Cornell Legal Studies Research Paper, (21-16). URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3860165

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