Neither Here Nor There: Redefining “Presence” for a Virtual Criminal Justice System

Authors

Brandon M. Draper, Thurgood Marshall School of LawFollow

Abstract

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials among these permanent, virtual options could prove fatal to defendants, the Sixth Amendment, and the guarantees of justice in our criminal justice system, should we experience another pandemic.

I am proposing a series of changes to our criminal procedure laws that, unlike our current laws, could ensure the accused’s criminal jury rights during our next pandemic. Because of the Sixth Amendment and Due Process implications of these changes, I discuss the potential challenges to their constitutionality. Furthermore, in an effort to limit the scope and applicability of these changes, I surveyed the members of the law school trial advocacy community, as they have conducted thousands of virtual mock jury trials since the pandemic began in 2020.

The respondents of my survey were largely supportive of virtual proceedings as a method of increasing the efficiency and inclusivity of such proceedings. But they were strongly opposed to permanent implementation of virtual criminal jury trials due to grave concerns regarding defendants’ Sixth Amendment criminal jury rights. They specifically expressed frustration in their perceived inability to observe witness demeanor during these trials. In so doing, they reiterated common misconceptions on the importance of demeanor and the types of audio and visual cues needed to properly evaluate demeanor.

Ultimately, the Article argues that our laws must be updated to include “virtual presence” as a type of “presence” to allow for our criminal justice system to conduct jury trials if and when the next pandemic occurs. It further recommends that such updates be made in conjunction with updating jury trial instructions on demeanor evidence, so jurors are taught to properly evaluate such evidence in witnesses. Based on the potential constitutional issues and my respondents’ survey responses, it argues that changes allowing for virtual criminal jury trials be made on a case-by-case basis, and only when they are necessary to promote public policy and where the technology used to conduct such trial is reliable. These changes, if implemented properly, have the potential to save lives, the Sixth Amendment, and our criminal justice system.

Recommended Citation

Brandon M. Draper, Neither Here Nor There: Redefining “Presence” for a Virtual Criminal Justice System, 27 SMU Sci. & Tech. L. Rev. 167 (2024)