Nov. 2021 > Inbox

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In Defense of In-Person Jury Trials

Permanent internet “jury” trial Civil Rules have been published by the Supreme Court for comment. King County Superior Court proposed the rules [amendments to CR 39 and a new GR 4111The full text of the proposed rules published for comment is available at www.courts.wa.gov/court_rules/?fa=court_rules.proposed.] asserting they are “imperative for access to justice.” The rules would give judges permanent discretion to deny a proper jury trial and impose an internet trial.

The proposed rules are a barrier to access to justice, widen the privilege gap between wealthy versus disadvantaged parties, and are a material impairment of the constitutional right to a jury trial. More fundamentally, the justification for them is contradicted by King County’s own studies.

First, for internet trials to increase “access to justice” as claimed, there must be equal access to the technology to participate. However, even in King County, approximately 70 percent of the population lacks a reliable high-speed internet connection needed for streaming.22 The author arrived at these numbers by reviewing three recent reports: (1) “Broadband Access Study,” King County, February 2020, https://kingcounty.gov/~/media/depts/it/services/cable/202002-Broadband-Access-Study.ashx?la=en; (2) “Computer and Internet Access in King County,” Seattle & King County Public Health, October 2020, https://kingcounty.gov/depts/health/covid-19/data/~/media/depts/health/communicable-diseases/documents/C19/impacts-web-access.ashx; and (3) “Household Income in King County,” https://statisticalatlas.com/county/Washington/King-County/Household-Income. Approximately 25 percent have other barriers due to language, education, or social issues preventing them from using the technology. Id. Those barriers disproportionately disadvantage “Black, Hispanic, and Asian” populations “relative to their size in the population.” Id. Those are King County’s own survey conclusions, and access gets much worse outside King County.33 https://broadbandnow.com/Washington, 10/07/2021. Far from making the process more diverse and open, the proposed rules have the opposite effect.

Second, permanent internet trials favor the wealthy, institutions, and insurance companies who can afford technology and support to put on a more seamless internet trial. As an example, our firm was given a blank check by our client’s insurance company for an internet trial; we hired an outside company, had upwards of seven monitors, stage lighting, high-quality microphones, and at times a person dedicated to do nothing but click through exhibits. What does a litigant without that backing use—an integrated camera/microphone from Amazon propped up on a book?

Third, the CR 39 amendment only considers presenting evidence while ignoring how juries interact with evidence. Internet trials show only faces. At a real trial, juries take the entire measure of a witness: how they act on the stand, their emotion, etc. And most importantly, jurors sit face to face to deliberate. All that is gone over the internet. Also, an internet jury’s attention is subject to being constantly distracted. In our recent internet trial one juror served most of her time in bed. Another was caught watching YouTube. The entire panel was obviously “multi-tasking” most of the time—stealthily typing, eyes darting around their screen. It is no response to say a juror will be “caught” and told to stop. By then, they have already missed testimony and evidence. We would not tolerate that distraction at a jury trial; it is not excusable over the internet. Even worse, what happens when technology fails intermittently as it is wont to do—the audio drops and a juror (or more) misses a critical sentence and no one even knows? In our trial, one juror’s video dropped and the juror was allowed to continue on what was reduced to a phone call.

Fourth, the proposed amended rule is inadequate. It requires a court to issue an order to ensure fair procedure but provides no guidance on what “fair” is or what technology jurors have to have. In our trial, one juror consistently used her cell phone. Jurors cannot consider exhibits reduced to 2-by-3 inches. On the other hand, requiring, e.g., a screen of a certain size worsens the lack of equal access identified above.

Internet trials are a reasonable and necessary stopgap. I have heard positive anecdotal reports. However, that ignores the backdrop: Having no trials for two years, even an internet trial seems great indeed. What a person does when their house is on fire is not what they do when it is not. Once this emergency passes, there is no reason to continue this emergency measure. If parties want to waive their right to an in-person jury trial for an internet trial then fine; however, access to the courtroom cannot be reserved only for cases a judge, however fair-minded and impartial, deems worthy. The promise our entire democracy rests on is that all—no matter how great or small—are worthy of access to the justice of the courtroom. 

Despite the enormous impact of the proposal, there has been nearly a total lack of comment to the court. To me that is shocking albeit illustrative of what Anne Seidel observed in a letter in the September issue: There is rule-making due process but it is not well publicized. Make your voice heard by writing to the court at supreme@courts.wa.gov. It need not be long but it needs to be quick: the comment period closes Dec. 29.

Dan Bridges, past WSBA treasurer and governor, Seattle


Just Phoning It In

Zoom court is to justice what the telephone is to sex. It might arouse the idea, but it’s never going to give you the real thing unless you get within six feet of someone.

It’s time to stop pretending that this experiment has been an advancement for justice. On the contrary, it has reduced people to pixels, deprived too many of meaningful access to effective assistance of counsel, made the pretrial court experience more intrusive and less efficient for clients, and signaled to the world that what lawyers do is less important or essential than virtually every other profession. As fear of COVID-19 diminishes and the politics of policing begin to shift, the result for the accused will be devastating.

While remote court may be somewhat more “convenient” for a minority of clients, please don’t confuse convenience with what is in the client’s best interest. There are a lot of facets to the judicial system which exist not to be efficient or convenient but rather to serve the higher genius of ensuring a fair and balanced process. Frankly, there’s a reason why it’s easier to break up with a girlfriend over Zoom than in person—because the distance technology creates allows us to avoid certain uncomfortable realities.  In a pre-COVID-19 world, forcing people to confront or display uncomfortable truths was a big part of what many of us did. It’s why police never stopped interviewing suspects exclusively in person, while defense counsel is now sometimes forced to settle for clearly coached witness interviews over Zoom. 

The problem with the pre-Zoom court wasn’t that it expected people to show up, it was that it severely punished those who failed to do so. Legislative changes and modifications to the rules of procedure have pretty much solved that problem, leaving Zoom with few arguments to remain a part of the criminal justice system.

Chris Van Vechten, Tacoma

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NOTES

1. The full text of the proposed rules published for comment is available at www.courts.wa.gov/court_rules/?fa=court_rules.proposed.

2. The author arrived at these numbers by reviewing three recent reports: (1) “Broadband Access Study,” King County, February 2020, https://kingcounty.gov/~/media/depts/it/services/cable/202002-Broadband-Access-Study.ashx?la=en; (2) “Computer and Internet Access in King County,” Seattle & King County Public Health, October 2020, https://kingcounty.gov/depts/health/covid-19/data/~/media/depts/health/communicable-diseases/documents/C19/impacts-web-access.ashx; and (3) “Household Income in King County,” https://statisticalatlas.com/county/Washington/King-County/Household-Income

3. https://broadbandnow.com/Washington, 10/07/2021.


Letters to the editor published in Bar News must respond to content presented in the magazine and also comply with Washington General Rule 12.2 and Keller v. State Bar of California, 496 U.S. 1 (1990).* Bar News may limit the number of letters published based on available space in a particular issue and, if many letters are received in response to a specific piece in the magazine, may select letters that provide differing viewpoints to publish. Bar News does not publish anonymous letters or more than one letter from the same contributor per issue. All letters are subject to editing for length, clarity, civility, and grammatical accuracy.
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