As pandemic restrictions start to ease up across the country, it is a good time to evaluate the way courts handled trials during the pandemic and what we can learn from that going forward. While many trials were postponed, a small number of venues (particularly at the state and local levels) took the bold step of conducting virtual trials on civil matters during the pandemic. This experiment with virtual trials may feel like a temporary solution to what was a temporary problem. But should it be?
One of the greatest concerns that attorneys, judges, and legal scholars have expressed in transitioning from in-person to virtual or remote trials is that this new medium will undermine our ability to assess jurors during voir dire adequately. More specifically, will virtual voir dire make it harder to evaluate the veracity of prospective jurors’ responses as well as their demeanor and body language? For these same reasons, there has been concern over evaluating witness credibility in remote settings or when witnesses testify in person but are required to wear masks.
This hyper-focus on what is supposedly lost in virtual trials or from pandemic-driven safety modifications to in-person trials makes sense. People are, by their very nature, loss averse (Tversky & Kahneman, 1991), which makes us more sensitive to losses than equivalent gains. It can also mean that we are more likely to see the glass as half empty than half full. For those of us working in the legal field, we are concerned about what we lost from this forced change instead of what has been gained.
Fortunately, there have been efforts to examine the effects of these COVID-related modifications. For the most part, these efforts have focused on examining what types of legal proceedings (beyond just jury trials) work well in the virtual arena, the challenges of conducting jury trials virtually, and best practices for doing so (see, for example, the results from Florida, Arizona, Washington, the NSCS, the Online Courtroom Project, and even a resource of efforts worldwide). Contrary to concerns about threats to open justice (transparency) and procedural justice (fair process), the consensus is that virtual trials work extremely well and provide several advantages. They are more accessible, convenient, and efficient. Yet, it is likely that courts around the country, particularly those that have never experimented with the virtual model, may be quick to dismiss these gains. Whether it is because this experiment did not last long enough and the fear of loss is more palpable than the knowledge of any gains, or because it is hard to implement change in our institutions and easier to rely on precedent (particularly in the legal field), we may find ourselves soon looking at this time as a missed opportunity.
Drawing upon theory and anecdote, I will show that we need not let our fears of loss be the reason we throw the baby out with the bathwater.
IDENTIFYING JURORS’ BIASES DURING VIRTUAL VOIR DIRE
Traditionally, when jurors are questioned during voir dire, we rely on what jurors directly provide us, both verbally and nonverbally. We ask questions that will encourage jurors to disclose relevant information about themselves and evaluate any nonverbal indicators that might cause us to question the veracity of their responses. In fact, whether or not we consciously make those evaluations about their nonverbal behavior, it is still factored into our decision-making calculus.
By focusing on how we have traditionally obtained information from jurors in person or through a juror questionnaire, we have fallen victim to a common attentional bias (Nisbett, 1980; Baron, 2008), which causes us to ignore alternative possibilities because we are focused on one train of thought. Our perception has been obscured by the belief that it is only through the question-and-answer process that we will gain insight into jurors’ biases. But allow me to introduce a curve ball: there are other ways to evaluate jurors’ biases, which have ironically only become available through the process of questioning jurors virtually.
Face-to-face interactions are like theoretical performances. People role-play or act in their interactions with others and take great care in creating, practicing, and enacting those roles during social situations. This system of impression management can be distinguished between “front-stage” and “backstage” performances (Goffman, 1959). A “front-stage” performance occurs when people act out in public spaces to display behavior in a manner consistent with the expectations of the audience and to achieve a desired response. Alternatively, a “backstage” performance occurs when an individual is out of the public purview and thus not expected to behave in a particular way and so displays different behaviors—namely, behaviors more in line with their comfort zone.
Applying this model to the courtroom, jurors are unequivocally acting out their “front-stage” performances. The courtroom is laden with social desirability pressures (Markus & Zajonc, 1985)—from the judge as an authority figure (Milgram, 1974) to the presence of other jurors, who can exert conformity pressures about how to behave (Asch, 1956)—that signal to jurors the correct, socially desirable response. As a result, jurors’ desire to be seen in a positive light and avoid any negative response from their peers and the judge can impede honest disclosure during voir dire.
Virtual jury selection is, in many ways, like a courtroom. The same players are present. The process is largely the same. But the ways in which the virtual setting is different is key to eliciting more honest disclosure from jurors. Now you have access to jurors’ “backstage performances.” Jurors are being questioning from the comfort of their homes, in a place they feel safe and where the formalities and socially desirability pressures of the courtroom are far less salient. This, in turn, makes it easier for jurors to respond candidly during voir dire. Indeed, anecdotal results from a comparison of socially distanced in-person trials and virtual trials in Arizona (Gates, Frederick, & Lisko, 2021) support this theory. For example, one juror in their study reported that “…Her increased willingness to be candid in answering the court’s questions stemmed, in part, from the fact that she felt secure seated in her son’s bedroom, far away from the intimidating environment of a courtroom.” Other jurors in their study expressed similar sentiments.
This may, of course, also engender an undesired consequence: the decreased formality of the virtual setting may cause jurors to feel less accountable and, therefore, less likely to follow the rules. Specifically, without the formality of the courtroom, jurors may be less like to remain attentive. Indeed, there have been some reports of jurors eating, watching TV, and even doing yoga. Some attorneys have similarly become too lax. But that is the beauty of the experiment with virtual proceedings: we are in the early stages of evaluating what works best in person versus online. It may be the case that the ideal way to ensure jurors follow the rules for the duration of the trial is to have the trial (not jury selection) in person. But some trials—depending on the length, case complexity, publicity, and any privacy concerns—may be well-suited for the virtual arena.
Ultimately, it is a cost-benefit analysis. The point here is that rather than seeing remote proceedings in terms of losses, we should continue to identify the gains and factor them into our determination of what can and should be conducted in person or online.
In addition to jurors being more comfortable when questioned from their homes, they may be more likely in this setting to be reminded of the things they care about and share information that might not otherwise have been revealed, providing us further access to their “backstage performances.” For example, when I was interviewing potential jurors for a shadow jury we recently conducted, one of the women was sitting at her dining room table speaking to me when her husband walked past her in the background. She had been in the process of telling me about herself, and when he walked by, she apologized for the interruption and mentioned how much she loved her husband and that he had a lot of health problems and that she did too. She proceeded to tell me in detail about both of their health issues and, sadly, had quite a lot to say.
While it is possible, if not likely, that her health problems would have come up when I later asked her about her ability to serve on a month-long shadow jury, would she have shared as much as she did in a different setting? She was primed by her home environment to think about who and what she cares about in divulging information about herself. At one point, when she was telling me about herself, she even looked around the room at her bookshelves and mentioned how she likes to write poetry. Her surroundings had reminded her of what she cares about—and this is important because, in the courtroom, some of our identity may be lost. Jurors’ focus on their front-stage performances can cause their attention to shift from who they are to who they need to be in the present moment.
As a recent example worth contemplating, take the juror in the Ghislaine Maxwell trial who failed to disclose that he had been abused during voir dire. The juror claims it was an honest mistake and that when he marked “no” to the question on the juror questionnaire about having been abused, he felt rushed and was distracted by a recent break-up. Juror questionnaires can be incredibly useful for streamlining what would otherwise be a lengthy voir dire process, particularly in high profile cases, but when it comes to disclosing sensitive information, some questions are better left for the verbal colloquy. And imagine how much better it would be if we could have conversations about those sensitive topics where jurors feel most comfortable: in their homes.
Regardless of whether we take the juror in the Maxwell trial’s explanation at face value, it is a useful reminder that jurors are more than just jurors, with life events and distractions that can impede their ability to answer honestly. Our goal should always be to make jurors as comfortable as possible, sharing information about themselves that may be relevant to the trial. And it is clear that certain realities about how to elicit honest disclosure should not be forfeited for convenience’s sake.
Beyond what we gain from jurors’ verbal reports during virtual voir dire, we also gain the ability to evaluate something we have previously never had access to: jurors’ homes—the backgrounds on their screens. Jurors’ backgrounds can provide the judge and/or the attorneys with topics worth probing. The importance of what may be provided with this newfound access to jurors’ home environment is underscored by two well-known psychological biases: the bias blind spot (Pronin et al., 2002; Pronin & Kugler, 2007) and self-report bias (Demetriou, Ozer, and Essau, 2015). According to the bias blind spot, people have a much harder time recognizing the impact of biases on themselves than on other people. Relatedly, self-report measures are notorious for being skewed by the same social desirability biases that are present in the courtroom. As a result, relying exclusively on jurors’ self-reports during voir dire is less than ideal. The virtual setting provides a novel source of information on which attorneys and judges can rely when evaluating jurors’ ability to be impartial.
The main point here is that questioning jurors virtually can provide us access to different–and sometimes more—information about jurors’ biases and suitability to serve than you might see in the courtroom. You can also use what you glean about jurors from seeing inside their homes to build rapport with them during voir dire. And, depending on how much support staff you have on the video call—and this is also true in person—you can still examine any non-verbal behaviors of interest (e.g., head nodding) that might be coming from other jurors during questioning (the pin function on Zoom can be especially helpful for splitting up jurors among your staff). In fact, during a recent virtual jury selection, it was particularly useful being able to see jurors’ faces up close on the screen; we were able to see pet furniture dominating their living rooms which we used to build rapport, and we were able to communicate about the jurors with our team more freely than we would have been able to in person. The virtual setting seemed to make it feel as though everything had slowed down, and we could contemplate our choices better.
In sum, the benefits of questioning jurors in a setting where they can be themselves may outweigh the loss of the formality of the courtroom setting. Especially when it may be the formality of the courtroom that is, in fact, hindering jurors’ ability to disclose their biases honestly.
Stay tuned for Part II of this series.
Reprinted with permission from the April 8, 2022 edition of the New Law Journal © 2022 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or firstname.lastname@example.org.