Zoom Recordings Could Change Trial Appeals, Atty Says

By Cara Salvatore
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Law360 (February 23, 2021, 9:29 PM EST) -- A criminal defense lawyer who participated in a criminal jury Zoom trial last year said Tuesday that the videoconferencing technology could make a difference in appeals if higher courts decide to start consulting video as a record.

Carl Guthrie of the Texas Poverty Law Project, who last year played a part in what is believed to be the first binding virtual criminal jury trial, delivered a talk hosted by the National Institute on Trial Advocacy on what's been learned from months of online trials during the COVID-19 pandemic. Guthrie said it's not far-fetched to predict that down the road, appeals courts may find themselves reviewing tape.

"I'm willing to bet that at some point, this virtual court is going to create some sort of record that we weren't expecting and we didn't really want," Guthrie said. "They're all being broadcast on YouTube. It doesn't take a tech genius to realize that there is certainly a possibility of recordings of all these things happening when they're not supposed to."

Lawyers who engage in virtual trials need to anticipate that eventuality and do everything they can to minimize errors that can occur because of technology, as well as preserve their objections properly and quickly during virtual proceedings, Guthrie said.

"We should always be one step ahead and prepared for what happens ... if an appellate court does look at it," he said.

Courts that have been broadcasting their proceedings usually include a warning that recording is prohibited, but those warnings aren't always heeded. One example is the recent viral video of the lawyer who was unable to remove a cat filter and told a court, "I'm not a cat." The video preserving that moment included in black and white font a prohibition against recording.

But more broadly, Guthrie said that in virtual proceedings, evidentiary gaffes are some of the easiest to make — and can be the most damaging. Accidentally showing exhibits to jurors before they've been admitted by the judge, for example, is an easily reversible error, he noted.

That can happen if someone screen-shares an admitted exhibit while other on-deck exhibits are visible as tabs or thumbnails in a program like PowerPoint or Acrobat, he said. Lawyers should always make sure they're in presentation mode with these programs; they should also not use the trial software's chat function, but instead should type to each other in a completely different program to eliminate the possibility of making a damaging comment to the judge or jury that wasn't meant for their eyes.

But there are many good aspects of the virtual courtroom as well. Witnesses can be seen clearly, and courts can make jury selection more efficient by using electronic questionnaires during voir dire, he pointed out, adding that while virtual trial court has its own quirks, it is doing its job.

"The jury trial is the pinnacle of our system," he said. "It's how you keep the state honest. It's how you make sure the community agrees with what is important. It's how we keep the justice system relevant and plugged into the community and the society."

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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