The Remote Jury Trial Is Not A Bad Idea

By Pavel Bespalko
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Law360 (July 2, 2020, 1:14 PM EDT) --
Pavel Bespalko
Pavel Bespalko
Due to the recent pandemic, our courts made a quantum leap through decades of technological progress in just a few months. The litigation community suddenly discovered video and telephone conferencing tools. Some courts even started livestreaming via YouTube.[1] Motion hearings, jury selections and even trials via Zoom are now commonplace. Is this a good thing or the end of life as we know it?

The public's response has been muted. To be sure, late night comedians mocked the sound of a flushing toilet during telephonic U.S. Supreme Court argument. Otherwise, technology has not led to the collapse of the justice system or other global calamity. 

Online dispute resolution is over 20 years old. From eBay's automated dispute resolution systems to arbitrations by video, the legal community has been using the various forms of ODR for some time. Most large arbitration providers now offer some form of virtual dispute resolution.

Against this background, Law360 published a guest article titled "The Remote Jury Trial Is a Bad Idea." The central premise of the piece is that "the fundamental genius of the jury trial ... can only exist in a live, in-person setting in a courtroom." Our collective energies should be best spent returning to the old ways of "bring[ing] people to a location to resolve disputes in the same way we have been doing for hundreds of years."

The utility of doing the same thing the same way simply because it has been done this way for hundreds of years is outside of the scope of this essay. Here, I address the common arguments advanced by the authors as to why an in-person hearing is superior to their remote counterpart and offer an alternative take.

First, we need to remember that a trial is a process with a distinct purpose of resolving a dispute in a fair, impartial and efficient manner. Many great minds have debated the meaning of these three terms; the debate continues today. For our purposes, we accept the authors' premise that a trial by a judge or a jury of peers produces a desired outcome. 

Is a trial administered via a videoconference so different from an in-person trial that it produces a radical outcome that is unfair, biased or inefficient?

The Present Times and COVID-19 Make Online Trials Inevitable

Reality Check: Video Trials Are Here to Stay

There is no going back to the horse-and-buggy. Videoconferencing is in such wide use that its adoption by the legal community is a matter of when, not if. Many alternative dispute resolution providers (arbitration and mediation services) already use virtual hearings. The courts have been using video testimony for years; virtual trials have followed in the last three months.

No Return to the Past During COVID-19, and No One Wants It

We are in the middle of a pandemic that will take months. The article acknowledges the current pandemic but argues for "return[ing] to the courtroom safely."

To ensure safety in the courtroom, the authors suggest a "very detailed, choreographed process" for empanelment, entering the courthouse a certain way, implementing special sitting charts, and other rituals. The authors also recommend taking "everyone's temperature upon arrival," mandatory masks, a daily "deep clean" of the rooms, "expanding" the jury box, and "any other commonsense approaches."  

No jury trial should be this kind of a health risk. One would rightly question the quality of decision-making of anyone who had to endure the described choreographed routine and then sit in a courtroom in a mask, behind Plexiglas.

The National Association of Criminal Defense Lawyers has already declared that any "court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend."[2] Subjecting the public to the "grave dangers," the disruptions due to taking precautionary measures, and the resulting inefficiencies and costs, simply will not work.

We need not speculate on the subject. Some courts have reopened and we have heard from jurors called back to decide cases during the pandemic.[3] From witnesses wearing masks, to concerns about excluding older and minority communities, to social distancing issues, all of these have already fundamentally altered the jury trial experience.

Can a party secure a fair trial in these circumstances? A criminal defendant should be able to see the accuser who is wearing a mask. If a judge orders the witness to remove the mask and this leads to an infection, was the trial fair?

In Arizona, the number of peremptory challenges has been reduced to two instead of six. In Georgia, more than 100 people had to be notified after a juror was hospitalized with COVID-19. In Ohio, an attorney told a jury pool that he was exposed to COVID-19 and advised to self-isolate. The judge refused to continue the trial. Were the jurors who stayed invested in the decision? As one attorney said, "[t]here's an inherent conflict between the rights of someone on trial and our social distancing policies."[4]

There is also no call from the public that it wishes to return to the in-person service immediately. To the contrary, the courts expect a sharp drop in jury response rate. A return to normal today is simply impossible. A jury trial that has to be administered like a ballet performance is simply not the "the same way we have been doing for hundreds of years." 

Jury Participation

The authors also argue that because 10% of the population does not use the internet, remote jury trials will not work. They suggest that virtual courtrooms will inherently eliminate this segment of the population, assuming full participation in live settings. The evidence contradicts this assumption.

Today, approximately 15% of Americans receive jury summons and a total of 0.8% of Americans are impaneled in juries.[5] About 38% of Americans serve on a jury over their lifetime, far less than 100%.[6] The response rate to jury summons nationwide is 46%. A response, of course, does not result in attendance; potential jurors may claim exemption or defray the service. Compared to these figures, internet access is not determinative. 

Most courts report that technology is their chief priority in increasing jury participation and representativeness.[7] To the extent some people cannot participate because they do not use the internet, the courthouses may offer alternative facilities for participation.

As of now, the courts are experiencing a sharp drop in jury participation. Online tools make juror engagement easier, faster and more convenient. Just as introducing automatic transmission made cars more accessible, so will the introduction of convenient online options for the jurors.

Participants so far report a high level of satisfaction with remote hearings.[8] In the U.K., 72% of the respondents reported a positive experience, with 87% stating that they would recommend remote participation to others.[9] Interestingly, the more experience one had with remote hearings, the greater level of satisfaction she reported.[10] In terms of access to justice, 70% of respondents felt that video hearings were effective in allowing both parties to participate and present their cases as effectively as their in-person counterparts.[11]

There is no evidence for the claim that online courts lead to lesser participation in jury selection.

The Question of Credibility

The authors suggest "an analogy we often use is [that a remote trial is like] attending a sporting event or a concert live versus viewing the event on television." Whether a jury trial is the same as a Broadway show is debatable.

Still, the authors argue that it's commonsense that seeing someone in person is better that observing on-screen behavior. But is there evidence that we can better tell that someone is lying by being in the same room with them?

The truth is that most people cannot tell a lie.[12] Studies show that one's ability to tell a lie is slightly better than that of flipping a coin (54% versus 50%). Indeed, the usual signals, such as fidgeting and lack of eye contact, are not considered good predictors. Instead, one needs to rely more on the factual evidence, rather than someone's facial cues, to find the truth. Indeed, the legal systems' overreliance on some form of "demeanor" evidence ignores the fact that it is largely meaningless.[13]

Juries are notoriously unreliable when it comes to determinations of credibility.[14] And "it is the jury's use of demeanor evidence that is the most flawed."[15] This flaw is so well-known that, for instance, the Canadian Social Security Tribunal specifically advises that "demeanour [be] generally recognised as an unreliable tool for credibility assessment."[16]

Thus, preserving the most dubious part of the jury process at the expense of the conveniences, safety and savings presented by online trials is hardly worth it.

However, is a lie told over a video different from the one told in person? One study suggests that people detect lies better when they cannot see the witness's face at all. [17]

In this study, the people were presented three groups of liars telling the same lie. One group was open-faced. The other wore a partial mask. And the third group was wearing a full-face covering. The participants were much better at detecting lies told by the latter two groups.[18]

Finally, the authors' advocacy of masks, distancing and other safety measures contradicts their insistence that personal observation is supreme. Videoconference offers a far better alternative.

Most courts have the long-standing practice of using video materials at trials, including audio-visual depositions and even conducting arraignments by video. These must have had some value since no court has moved to abandon the practice.

Most participants in video hearings feel that such hearings have been conducted with the same level of fairness and propriety as in-person hearings, they had the same ability to present their cases, and the decisions rendered were well-reasoned.[19]

As an arbitrator who has conducted dozens of consumer arbitrations via videoconferencing, I noticed no impact on my ability to observe the participants and determine their credibility.

Juror Privacy and Management

The authors also suggest that online trials present new challenges to juror safety and privacy. Based on hundreds of online hearings that have already taken place, there is no evidence that this is a pervasive issue.

Disclosures of personal information for voir dire remain limited; many states provide no information about jurors to attorneys before voir dire. Jury tampering is unlawful and unethical.

These concerns are no different in online trials. The taking of a photo is prohibited in person and online. Technology is available to prohibit screen shots altogether.

There is also no evidence that jurors in courtrooms are frequently subjected to threats or attacks. In any event, remote participation appears far safer than sitting in a public courtroom. Using the authors' analogy, it is like watching a fire on television, instead of sitting in a burning house.

The authors also suggest that in-person jurors pay closer attention, take the proceedings more seriously, and are less prone to be influenced by external information. Indeed, slightly more people report more fatigue from participating in a hearing via videoconference (55%).[20]

The fatigue, however, was attributed to technical difficulties and unfamiliarity of the process, not inability to present or process information. Those, who felt that "in video hearings, nuanced interactions are lost" were in a significant minority.[21] The half of the respondents who felt the remote hearings were no more taxing that their physical counterpart cited the convenience, lack of commute, the comfort of working from home, and increased efficiency.[22]

Litigators know that jurors do sometimes doze off during the less exciting portions of trials. There is simply no evidence that jurors daydream more in front of a computer than they do in a courtroom. If one were to guess, seeing oneself on a screen in real time and being watched by 11 fellow jurors, the judge, the parties, their lawyers and the court clerk will probably be sufficiently motivating.

What about taking the proceedings seriously? Based on the reports from the virtual fronts over the last two months, most participants are sufficiently respectful in virtual courtrooms, obey the decisions as much (or as little) as they ordinarily do, and otherwise conduct themselves in the usual fashion.

We can expect the same level of civility (or incivility) as that displayed in a courtroom. If anything, it is far easier to silence a disruptive person in a virtual environment. All it takes is a press of a button.

Pressure to Participate in Pilot Programs

The authors hypothesize that some "economically disadvantaged litigants" will be "forced" to be used as "guinea pigs" for the new systems. However, litigants are routinely encouraged and do participate in alternative dispute resolution, rather than waiting for trials and incurring additional attorney fees or taking time off work. Parties routinely waive the right to a jury trial altogether for similar reasons. Here, the parties retain a trial by jury, albeit online.

As we know now, the online process is at least as fair as its in-person counterpart. So long as the resolution is of an acceptable quality and follows due process, it should be unimportant what means are employed to get us there. 

Some of the Benefits of Online Trials

The inefficiencies built into the current jury trial system are too numerous to list.

Potential jurors are expected to brave the inconveniences of travel, waiting and, finally, the potential indignity of being dismissed without ever serving. The jurors routinely give low grades to what one court diplomatically called "the issue of scheduling prospective juror's time," that is, wasting time.[23]

The authors suggest that technical difficulties, such as dropped connections, may impede the process. Admittedly, the system is not yet functioning perfectly. Still, all involved acknowledge that it will improve once the processes become more familiar and the initial set-up costs are offset.[24]

Technical issues are inevitable in physical trials, from power outages to parties stuck in traffic and jurors falling sick in the middle of trials. Since all travel issues are effectively eliminated when the process is moved online, one may assume that the trade-off is at least fair.

Real estate, security, utilities, food are all reduced once there is no need to shepherd hundreds of jurors per day. There is no need to print multitudes of exhibit books, blowup charts and the like. The transportation and travel costs are limited. The evidence tells us that at least 60% of participants feel remote hearings are less expensive based on these factors.[25]

Florida attorneys, for instance, were happy with their video trial experience.[26] They cited witness convenience, lack of waiting around, and other factors that substantially improved overall efficiency.[27] Florida judges sound enthusiastic about the use of remote appearances.[28] Family law practitioners express a similar sentiment.[29]

Online trials improve access to justice by increasing capacity of the courts. Many trials in Massachusetts courts are limited to a half day or approximately four hours of time. A significant portion is spent on walking the jury back in and out of the courtroom. With online trials, downtime is reduced to almost zero. The public benefit from such an increase is readily apparent.

There are many other arguments, scientific and philosophical, in favor of online trials. For example, most Americans view jury service as a valuable civic duty.[30] Most jurors report a high level of satisfaction from their involvement in the process.[31] By having more Americans involved, we can expect a greater level of public satisfaction with our legal and judicial system. As a matter of policy, the economists tell us that the level of social trust is directly related to the nation's prosperity.[32]


The authors of the article deserve our gratitude for expressing a clear viewpoint and inviting a discussion. The "commonsense" adages they advance are prevalent in the industry and need to be addressed directly, with evidence. The legal system is in the process of developing scientific tools to address its challenges in a data-driven fashion. Until we are comfortable developing measurable goals and diagnosing progress toward those goals, many arguments will remain in the sphere of opinions.

Hopefully, at least with respect to online trials, and based on the evidence we have so far, the answer is obvious. 

Pavel Y. Bespalko is managing counsel at Tricorne & Co. PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[2] NACDL Issues Statement of Principles and Report regarding proceedings during COVID-19, June 4, 2020,

[3] See Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic, NY Times, June 10, 2020,

[4] Id.


[6] The National Center for State Courts at


[8] See UK Civil Justice Council, Report and Recommendations, The Impact of COVID-19 Measures of the Civil Justice System, June 5, 2020, at p. 50,

[9] Ibid.

[10] Id. at 52.

[11] Id. at 55.

[12] See e.g., L. Zimmerman, Deception Detection, American Psychological Association, March 2016, Vol 47, No. 3,

[13] See e.g., Accuracy, Confidence, and Experiential Criteria for Lie Detection Through a Videotaped Interview, Frontiers in Psychology, 22 January 2019,

[14] See e.g. Renee McDonald Hutchins, You Can't Handle the Truth! Trial Juries and Credibility, Seton Hall L.R., Vol. 44:505, 2014,

[15] Id. at 518.

[16] SST Best Practices for Remote Hearings,

[17] S. Oxenham, We're Discovering New Ways To Tell When Someone Is Lying, New Scientist, July 25, 2016

[18] S. Oxenham, We're Discovering New Ways To Tell When Someone Is Lying, New Scientist, July 25, 2016

[19] See UK Civil Justice Council Report, infra at n. 13, p. 56,

[20] Id. at 52.

[21] Id. at 56.

[22] Ibid.

[23] See e.g., Satisfaction Survey of Fourth Judicial District Jurors, MN Judicial Branch, November 2006,

[24] See UK Civil Justice Council Report, infra at n. 13, p. 59,

[25] Id. at p. 58.


[27] Could Litigation Change Forever? Zoom Trials Already Cutting Costs for Litigants,

[28] Get Used to Online Litigation: It Could Become Florida's New Normal, Daily Business Review, March 25, 2020,

[29] S. Zimmerman, Divorce Lawyers Say Technology Changes May Outlive COVID-19 Pandemic, ABA Journal, June 11, 2020,

[30] See e.g.,

[31] See Minnesota Court survey, at p. 4,

[32] See e.g.

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