What You Need To Know: Could Virtual Courtrooms Become the New Normal?

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The criminal justice system has been upended by the pandemic. Courts across the nation, like the Georgia Supreme Court, have been holding some proceedings online. Here's an exchange from a recent meeting of the Georgia Supreme Court done over Zoom:

Justice: Mr. Furlong, you may begin.

Lawyer: Thank you, your honor. Morning, justices. First, I would like to thank the court, thank your clerk's office and your I.T. people for giving me an in-depth training schedule to get started on this matter. I won't say I'm an older lawyer — but I'm a seasoned lawyer and I appreciate them getting me up to speed to be able to partake in this session.

Still, a statewide judicial emergency has been extended in Georgia through mid-June. That means civil and criminal jury trials will continue to be on hold, and no new juries or grand juries can be called. Could online proceedings continue after the pandemic?

Emory University law professor Randy Kessler tells GPB’s Virginia Prescott that he thinks so.

Well, there are some really basic, psychological or esoteric kind of concerns. You know, if we're fighting or disagreeing about custody, judges really need to gauge the demeanor of a witness. And it's harder to do that electronically, of course. It's harder to see if somebody, you know, has body language that they wouldn't, you know, doesn't jive with a truth-telling person.

Even benefits like nobody has to pay for parking or worry about traffic or lines at security or which floor to get off the elevator. There just a lot of benefits that we didn't realize that are going to be useful in the future. People are going to get comfortable with this.

That's true. I mean, a lot of municipalities and towns have been trying to figure out how to cut costs of operating courts. Do you think that this may continue after social distancing guidelines relax?

One hundred percent. I mean, we will need fewer costs. You and me will be paying less tax dollars to have security guards and have personnel at the courtroom because there won't be a need, there won't be a backlog. The halls won't be crowded with people waiting their turn to get in front of the judge. People will be waiting in their living room to get in front of a judge.

Some court monitoring groups say their access has also evaporated during the pandemic. Also, concerns that some remote hearings could unfairly advantage fancy law firms. You know, they can pay for good lighting and stable internet connections. What have you been hearing about these concerns?

You know, we hear those concerns, but it's nothing new. It's the same thing as if you go in front of a jury trial, you see a criminal defendant in a trial and some lawyers are smart and they say "put on a suit" and they buy them a suit and some show up in an orange jumpsuit. Which one is going to look worse for the jury? It's just a question of thinking about it.

And yeah, sometimes life is unfair. Some people can afford better lawyers and better surroundings. Some people can't. But not all the better law firms and not all the fancy lawyers are the smartest. You know, find a lawyer that you like, that you trust. And, you know, we used to say sometimes you go to court with a tattered sports coat and it's more appealing than the silk-stocking pocket-square lawyer that you see right here.

You mentioned that bench trials are now being held online along with many hearings. Do you think that jury trials may follow?

Well, I think that's the holy grail. Can we get to the point where we can do jury trials because it's gonna be a while before any judge feels comfortable making 12 people sit next to each other? I think it will happen. It's inevitable. The question will be what if the jurors don't have technology? We can't discriminate and only have people that are allowed to have their own cell phones. But there will be maybe a group with WiFi. We'll have a device that we share with the jurors.

There's got to be a way to do it because it's so efficient and it saves the court so much money. Think about it: no, no need to pay for a jury room, jury chairs and all that kind of stuff and try and reimburse them for travel. No waiting for that last juror who missed the bus and couldn't get to court on time and the whole trial is held up. I think the good outweighs the bad. Those problems can be overcome.

Well, the argument can also be made that virtual jury trials could taint the jury pool. For example, you mentioned technology. Somebody might have a cell phone near them. You know, a bailiff could make sure that that's not happening inside of a courtroom. But if they're all sitting at home, it wouldn't be the same.

No, that's true. And you'd have to find a way to motivate behavior or incentivize behavior. Maybe you penalize it and you tell people if you get caught doing this, there's a significant penalty. Of course, even in a courtroom with a bailiff watching, people have Apple Watches that they might sneak a peek. There are ways to cheat the system, and part of this system depends on people's honesty. But that's why we have a jury of 12 instead of just one person doing it. One person on the jury cheats, the other 11 hopefully will keep them in line.

Randy, you teach at Emory Law School where you actually held a mock jury trial on Zoom. Well, how did that go over and what is the prospect of these virtual courtrooms in changing the way that you are preparing this next generation of attorneys?

Well, it was wonderful. We had real judges, so we had real life problems and it was a real life fact pattern, and we learned some fascinating things. It was more polite. Nobody interrupted each other. They just held up a paddle that said "objection." So the judge knew somebody was objecting without a lawyer screaming or jumping in front of the other one. There was a lot more self-awareness because when you're on Zoom, we all know now that you can watch yourself. You can see how you're dressed. I can see if my tie is crooked. When you're standing in front of a judge, you don't know if you know your flies unzipped or who knows what's going on. The bottom line is, you know, not to roll your eyes because you see how you're roll your eyes. There are there's a lot of benefit to this process.