The jury is still out on Zoom trials

Courts are moving online due to COVID-19. No one is sure if that’s a good thing.

It would have been an uneventful court appearance had one of the lawyers not had some trouble with his Zoom background. Alan Rupe, an employment lawyer at Lewis Brisbois, popped into the videoconference framed by majestic sunbeams. “I apologize for the background,” he told Judge Vince Chhabria. “I was at a Zoom happy hour and I don’t know how to get it off. It is a beautiful Kansas sunset.” Chhabria cracked a smile. “Kansas sunsets are perfectly welcome here,” he said.

As cities across the United States continue shelter-in-place orders due to the COVID-19 pandemic, almost every court system in the country has suspended or reduced in-person proceedings. Some cases have simply been postponed; others are now taking place over Zoom. It’s an unprecedented moment for the justice system, which is typically slow to adapt to new technology.

Critics worry the change has made it more difficult for the public to access court proceedings. Court watchers — volunteers who monitor hearings to hold judges and prosecutors accountable — say their access has evaporated during the pandemic. There’s also concern that remote hearings can unfairly advantage fancy law firms that can pay for good lighting and stable internet connections.

Zoom has also had major security flaws, including default settings that didn’t include meeting passwords (a problem the company has now fixed) and a misleading definition of end-to-end encryption. (The company claimed meetings were end-to-end encrypted; they are not.)

But supporters say going online is critical for protecting public health. For those in detention, postponing a hearing means potentially spending more time in jail, while appearing in person could put the individual and those around them at risk.

The San Francisco courthouse has been solving this dilemma by holding virtual hearings that are easily accessible to the public. Chhabria now conducts civil proceedings on a Zoom webinar, with a live stream for remote watchers to follow along. (Jury trials have been postponed.) “I believe that broadcasting has a very positive public education function,” he says in an interview with The Verge. “So I hope that, overall, this results in improved transparency.”

So far, that hasn’t been the case for every courtroom. While New York City has moved much of its operations online, it’s not broadcasting proceedings to the public. Anyone who wants to see a hearing has to watch it on a screen at the courthouse, as reported by The Marshall Project. Similarly, in Los Angeles and Miami, court watchers don’t yet have a way to watch a judge’s live video conferences.

Court watchers say the lack of transparency can erode public trust and create worse outcomes for defendants. “What we’ve seen over the past few years is that our presence really does matter,” Zoë Adel, a communications manager at the Brooklyn Community Bail Fund, told The Marshall Project. “It changes people’s behavior — judges set lower bail — when they know court watchers are watching and they’re being held accountable.”

The Northern District court in San Francisco, where Chhabria sits, has long been at the forefront of bringing more transparency to the courtroom. Since 2011, the courthouse has participated in a Cameras in the Courtroom Pilot Project created by the Judicial Conference of the United States. Any civil hearing or trial can be recorded, with the consent of the judge. These recordings are made public “as soon as possible,” but they have never been broadcasted live until now.

Moving the justice system online has had unexpected consequences for the decorum typically expected in a courtroom. Dennis Bailey, a judge in Florida, wrote a public letter calling on lawyers to dress more appropriately, after seeing a male lawyer show up shirtless and a female attorney make an appearance while still in bed. “And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit,” the letter reads. “So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

Digital hearings can also be tricky for people who don’t have high-speed internet or aren’t as comfortable using videoconferencing technology. Douglas Keith, counsel at the Brennan Center for Justice, told The New York Times that people could now be judged not just on their clothes, but on their surroundings and the strength of their internet connection.

“That is an issue that judges need to be concerned with regardless of whether it’s an in-person proceeding or a remote proceeding,” says Chhabria. “We are taught not to stick our head in the sand about that concern but to be conscious of it and to be beware of unconscious bias or subconscious bias.”

Chhabria added that while conducting remote trials makes sense during the pandemic, he’s wary of extending this beyond the crisis. “So much of trying a case from the lawyers’ perspective is having a feel for the courtroom and for the people in the courtroom and what is interesting to them,” he says. “So much of presiding over a trial, as a judge, has to do with feel. I think it would be unfortunate if the new normal became too reliant on remote proceedings.”

His concern is echoed by Alan Rupe, the lawyer who showed up with the Kansas sunset background. “A lot of what I do involves witness credibility,” he says. “When you’re assessing someone’s credibility you have to be in the same room as them.”

Rupe concedes that other parts of civil proceedings can easily happen over Zoom. Case management conferences, in which the lawyers meet with the judge to discuss how the case should be handled, used to require everyone to be in the same room. Rupe would often travel for two full days in order to appear in court for 30 minutes. Now, he takes those calls from his house. “Previously, I traveled so much it was impacting my marriage in a negative way. Now I’m home all the time on Zoom and it’s impacting my marriage in a negative way,” he says.

As Chhabria and Rupe both noted, much of what goes on in a courtroom is about feeling: how the judge feels about the defendant, how the jury feels about the prosecutor and judge. Online, that feeling can be eroded. A person becomes less of a person behind a screen, which means they become less of a person to a judge and jury. During a pandemic, there’s likely no better solution for cases that can’t be postponed. Once the crisis subsides, however, it’s worth looking at the ramifications of deciding someone’s fate on a Zoom call.