Keeping online jurors present and attentive is a challenge schoolteachers might recognize. Jurors have been caught exercising, napping, talking to people off-screen, and leaving to get snacks. Abner Burnett, the chief public defender at Texas Rio Grande Legal Aid, watched one early virtual voir dire, where lawyers accept or disqualify prospective jurors. “One person took a call in the middle and walked away,” he told me. “Another couldn’t get the screen image right side up. I’d hate to have that be the jury that decides whether I go to prison.”
A more serious concern is that jurors, and witnesses, may get coached or coerced by offscreen eavesdroppers. Judge Rick, who is now on an appeals court, worries especially about domestic-violence victims: “I don’t know where they’re phoning in from, whether someone is exerting influence over them.”
But most of virtual courts’ shortcomings are intrinsic to live courts, too. “You have to remember, the comparison is not to perfection,” Jennifer D. Bailey, the administrative circuit civil judge in Miami-Dade County, Florida, told me. “Every day, we don’t have perfection. The question is, can we have a fair process?”
A cornerstone of a fair process is the accused’s right “to be confronted with the witnesses against him”—as guaranteed by the Sixth Amendment’s “confrontation clause.” With occasional exceptions, such as when traumatized children or rape victims testify on video, “confrontation” has always been face-to-face.
That’s in part because jurors and judges gauge suspects’ and witnesses’ credibility through their demeanor and body language. Lawyers screen prospective jurors the same way; like poker players, they tend to value unspoken signals and tells. “I can’t pick a jury online,” Hiatt, the defense attorney, said. “I’ve got to be in the room with those people.” And at trial, he said, the fog of video makes it easier for witnesses to lie.
The importance of physical presence is a rare point on which defenders and prosecutors agree. “I do not see how people can fully assess credibility if we are not all in the same room,” Nancy Parr, the president of the National District Attorneys Association, told me.
Alex Bunin, the chief public defender in Harris County, Texas, notes that virtual justice interposes emotional as well as perceptual distance—to dire effect. “Once you distance people, the ability to have empathy diminishes greatly,” he told me. “If you watch a trial on-screen, you don’t respond as you would in person.”
There’s some preliminary evidence that this distance can affect even judges, supposed paragons of impartiality. For nine years, starting in 1999, Cook County, Illinois, conducted most of its bail hearings via closed-circuit television. The sums required for release rose immediately and stayed elevated—51 percent higher, on average, a study in the Journal of Criminal Law and Criminology found. Bail did not rise in cases still heard in person. Changes in the judicial roster may have played a part, but it appeared that judges were more willing to trust defendants and grant lower bail when they saw them face-to-face.