The Jury Is Still Out On Zoom Trials (theverge.com) 43
As cities across the United States continue shelter-in-place orders due to the COVID-19 pandemic, some in-person court proceedings are now taking place over Zoom. "It's an unprecedented moment for the justice system, which is typically slow to adapt to new technology," writes Zoe Schiffer from The Verge. "No one is sure if that's a good thing." From the report: 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.
[Judge Vince Chhabria said] 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, [employment lawyer at Lewis Brisbois]. "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."
[Judge Vince Chhabria said] 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, [employment lawyer at Lewis Brisbois]. "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."
Scary article there (Score:4, Interesting)
I found the article quite frightening. Not because of the use of video, but because the judge and lawyers are relying upon feelings and hunches while trying cases instead of hard facts. The implications of this does not give me a warm fuzzy feeling about our justice system.
Re:Scary article there (Score:4, Interesting)
Because hard solid facts that everyone agrees upon are vanishingly rare in a courtroom. We know the victim was mugged and beaten, but it's only his word that the defendant did it. There are lots and lots of verbal statements, but humans have been lying since before we had speech. Any evidence presented is doubtful to some degree. Even for fingerprints, which we take as somewhat solid evidence these days, involves following the chain of evidence, knowing whether or not the person taking the fingerprints did a good job, or whether the 9 matching points of reference are enough to be unique, and which of the competing expert witnesses is closer to the truth. Or confessions which are notoriously unreliable as evidence. The quality of the evidence can go way down just by affording a decent lawyer who bothers to question it.
Re: (Score:2)
Re: (Score:2)
And yet we have a country of get-tough-on-crime prosecutors who refuse to drop a case even in the face of solid evidence of innocence. They got elected by putting people behind bars and they don't want to jeapordize it by letting some back out again later. A judge can throw out the case citing new DNA evidence and a confession from the actual murderer, and the prosecutor will still hold a press conference to claim that the public is in danger. Sometimes they even retire and join CNN so that they can have
Re: (Score:2)
What would justice look like in the US if the jury only ever saw the witnesses, and never the lawyers, or the judge, of the defendant?
Re:Scary article there (Score:4, Interesting)
the judge and lawyers are relying upon feelings and hunches while trying cases instead of hard facts.
There is nothing at all new about that.
A study was done years ago that showed judges are much more lenient after lunch [discovermagazine.com] when granting or denying bail.
If you are a defendant, you don't want a hungry judge.
The capriciousness of human judges is one reason that some jurisdictions tried making bail decisions with algorithms. That led to a whole new set of problems.
Re: (Score:2)
Re: (Score:2)
The bail decisions were made with closed source IP protected software that the judge was not allowed to know how it ha reached the decision but had to use it anyway, and the only testing that had been done was by the company selling it
Re: (Score:2)
It's always been like that though, since ancient times. It's just part of human instinct.
Re: (Score:2)
I found the article quite frightening. Not because of the use of video, but because the judge and lawyers are relying upon feelings and hunches while trying cases instead of hard facts. The implications of this does not give me a warm fuzzy feeling about our justice system.
Then you have never put much thought into how judicial systems work. If it was all hard facts, you wouldn't see split decisions in any situations where there are multiple judges. Judges have biases just like everyone else, as do lawyers and jurors. Well run judicial systems simply try to minimize unfairness. Complete fairness is the unreachable goal we should always strive for but understand we will never reach.
I was more scared by the implication only expensive law firms can afford good internet connection
Comment removed (Score:3, Interesting)
Re: (Score:2)
The real challenge is when an incarcerated suspect for a low level drug offense does not accept a guilty plea bargain and instead requests a trial by jury. Smart prosecutors who understand the point of US Prisons will generally drop all charges and release the inmate as the cost of the trial outweighs the revenue generated by a new inmate. But if Aaron Schwartz has taught us anything, rapacious prosecutors do exist, and become especially blood-thirsty in an election year.
500+ criminal matters handled over the last seven years says you're flat wrong.
Who are these "smart prosecutors" you're referring to and what jurisdictions do they work in? I have *never* had a prosecutor dismiss a low level drug offense because the person refused a plea and demanded a trial. Where the fuck are you getting your information from?
Re: nothing new really. (Score:2)
I can almost hear you claiming to have handled more trials, which would lead to another problem with your "data"- it'd be hard for that to be any kind of representative sample when more than 94% of convictions come from plea agreements.
Re: (Score:2)
So that's what, like, a dozen trials? And you've NEVER had a prosecutor drop the charges?? That's a great data set you have there.
I can almost hear you claiming to have handled more trials, which would lead to another problem with your "data"- it'd be hard for that to be any kind of representative sample when more than 94% of convictions come from plea agreements.
About 50 jury trials over the same time period. Half were criminal, the other civil matters.
If you've got a good case, they'll drop it. That's not what OP said. OP stated DAs would dismiss "low level drug offenses" for some sort of fiduciary reason. This doesn't happen.
Since you appear to not know shit about how the system really works, here's some education on the way things really happen:
1) Someone gets arrested on a misdemeanor charge (possession of weed, 1st or 2nd DWI, some other nonsense).
2) If th
Re: (Score:2)
1-(50/2/500) =
Perhaps you should work on your close reading if you want to succeed in your legal career.
Re: (Score:2)
Your "formula" accounts for only trials and pleas and ignores instances where charges are in fact dropped ("If you've got a good case, they'll drop it.").
Logic isn't your thing. Best you stick to bagging groceries. I hear people of your mental abilities get a bonus fruit cup at lunch.
Re: (Score:2)
Quite a while unfortunately. Right now, the link from each user to Zoom's servers is encrypted. But the servers have access to the unencrypted data.
In order for the data to be encrypted end-to-end, all participants to the video session have to have access to the encryption key and Zoom must NOT have access to that key. Getting that key distribution problem solved isn't an easy problem to solve. Right now, I can imagine two general approaches, but they both have issues and it's highly probable that they also
Re: End-to-End Encryption (Score:2)
The meetings are NOT end-to-end encrypted. Only the text chat is end-to-end encrypted.
Lighting is cheap (Score:5, Informative)
remote hearings can unfairly advantage fancy law firms that can pay for good lighting and stable internet connections
All you need for good lighting is a floor lamp with directional cans [staples.com] and a white wall or even an easel with a white paper pad. Aim the lights at the wall or the easel, put the desk in front of it, and you have nice indirect lighting. Less than $100 retail, or $20 if they buy it at a thrift store.
Zoom says they need 3mbit of bandwidth for HD video, so it doesn't take an expensive network connection for that.
They do need a good camera, that's probably the most expensive part of the video setup.
Re: (Score:2)
Re: (Score:2)
Re: (Score:2)
It's far more complicated than that.
There will be variations between a stale white room and a nice plush room that suggests the accused can afford decent lawyers and is not a lowlife criminal with no money.
It's statistically true that people with darker skin are more likely to be found guilty and get harsher sentences. Filming dark skin is actually a bit of a challenge even for cinematographers, let alone some budget webcam built into a laptop. In fact the defendant probably wants to arrange the room and th
Re: (Score:2)
Well, there is a bit more than that. You also need good sound. That means a decent microphone, and a room that doesn't echo. A clever law firm will undoubtedly also pay a lot of attention to the background visible in the camera. Just like politicians appear next to flags, so witnesses should appear dignified, earnest and competent. You already see this in the way witnesses are groomed for in-person trial appearances.
Sure, none of this is expensive, but knowing it, and setting it up, can be. It's not the har
Re: (Score:2)
Great... (Score:1)
Evidence! (Score:3, Insightful)
If the argument is that they need to be able to assess emotional impact on the jurors, then I think we should start requiring Zoom for all trials.
Re: (Score:2)
Re: Evidence! (Score:2)
Then get the jurors engaged. There's nothing in the Constitution that prevents jurors from asking questions or taking a more active part in the trial. That's a decision the judge makes.
Re: (Score:2)
Aside from my initial point, in the summary they mention a feel of the courtroom and not the jurors specifically. They did mention, however, witness credibility. Being a
Sounds like a good thing (Score:2, Insightful)
Imagine a trial where the jury never knows whether the defendant is male or female, or race. The jury will be restricted to finding facts based only on the testimony presented.
That the court system doesn't like it seems to b
Re: (Score:1)
It's a nice idea but it will be impossible to prevent some of that information reaching the jury. Gender will come out as witnesses use gendered pronouns or the accuser takes the stand and they hear their voice. It may be important to the facts of some trials, same with race if say the evidence is that a witness says they saw a white guy running from the scene and the accused is Latino.
The judge is supposed to counter these biases as much as possible with instructions to the jury on how to evaluate the evid
Re: (Score:2)
I have to disagree. I believe that a juror has the right to vote either way for any reason (outside of things like knowing the relevant parties and so on) is as important as protection against double-jeopardy and illegally-obtained evidence. A jury exists to ensure that there is an element of humanity and common sense in the courts, to ensure that at minimum twelve members of the public witness the trial, and that unjust laws are not enforced. Laws are not perfect, and will have edge cases where someone can
Zoom sucks for evidentiary hearings (Score:4, Interesting)
IAAL in Texas and have used Zoom now for four evidentiary hearings (one family law hearing, one will prove up in probate court, and two bench trials in front of a judge with opposing counsel and witnesses). They have been unmitigated disasters and I will not be agreeing to do any more.
Lowlights:
1) The platform lags which is inconvenient when trying to make objections;
2) The platform has no good way to pass documents for admission as evidence;
3) Having witnesses join, give testimony, and leave the meeting is problematic;
4) In Texas all court hearings have to be open to the public which means we had to publicize the trial room and let people come up. Of course you had issues with microphones, distractions, etc. In the second bench trial we had 8 observers. No one was douchey or trolled the proceedings, but it's coming.
All that having been said, the paid version of Zoom is actually *very good* for mediations. I have been pleasantly surprised here.
Part of mediation is hanging out in your room with your lawyer.......and being bored. And waiting. And waiting some more while the mediator goes back and forth between the parties in different rooms. It builds frustration and wears people down so a deal gets done.
Being on zoom in the comfort of one's own home, I figured that the edge would be gone and people would dig in. Thankfully that hasn't happened. And the clients participating have been engaged and not at all distracted. From that perspective it has worked out quite well. I expect that mediators will keep using the service when all this ends.
YMMV etc.
Re: (Score:2)
I'm a lawyer and we're going to take a stab at doing a mediation over Zoom soon. That's an interesting point that it might keep the parties more focused and willing to fight.
We had an opposing party that wanted to have a gigantic, day-long multiparty evidentiary hearing, but every other party complained about it, and happily the judge decided not to chance it. It's been postponed indefinitely. We really couldn't see a good way to deal with evidence either, especially oversized materials that have a lot o
Re: (Score:2)
I'm a lawyer and we're going to take a stab at doing a mediation over Zoom soon. That's an interesting point that it might keep the parties more focused and willing to fight.
We had an opposing party that wanted to have a gigantic, day-long multiparty evidentiary hearing, but every other party complained about it, and happily the judge decided not to chance it. It's been postponed indefinitely. We really couldn't see a good way to deal with evidence either, especially oversized materials that have a lot of fine detail.
Thanks for the comments, sorry you had to find out the hard way.
Y'all were wise to do so.
The evidenciary problem really is as much of a bitch as it seemed. Trial prep took four times as long as usual. Authenticating original documents was non-existent. The clerk wanted everything we were going to use filed as exhibits a head of time. Which is fine until a witness says something that requires needing exhibits that weren't planned for.
I really wanted to hate Zoom mediation but a mediator talked me into it. For the right case and client, it's not a bad deal.
Good luck
Re: (Score:2)
Not a lawyer, but here are some ideas:
1) Zoom has emote buttons - could that be used to make objections? Or at least signal that an attorney wants to make one?
2) Yeah, I don't know about that one except maybe have a shared google drive that is publicly read-only but council can write to? Or one private drive to submit evidence to the judge, and if the judge accepts it, they can move it to a public read-only drive associated with the trial.
3 & 4) Sounds like you need a moderator or to structure the mee
easiest first step: let jurors work from home (Score:1)
In many U.S. states, citizens are selected at random to become jurors
involuntarily. Historically, this has raised questions about whether
it's the right balance between fairness to these citizens versus
fairness to the parties of a case. A pandemic changes the game. For
at least the next year, it could mean forcing a citizen (who, at best,
has imperfect information about his own COVID-19 immunity) to spend a
long time in a small room with strangers (who may be carrying COVID-19
at any time - they can't be tested
Re: (Score:2)
Re: (Score:1)
Ultimately there's not much difference from physically present jurors,
i.e., 1. Even if a juror is facing counsel or facing the juror's own
camera, the juror might be daydreaming. 2/3. In most U.S. states,
jurors are rarely sequestered, and there is the same opportunity to
research or communicate when the court is in recess. Instructions to
jurors could state that their video stream must show enough of their
local environment to demonstrate that they are not touching a phone or
keyboard, or watching news coverage
Re: (Score:2)
Re: (Score:2)
"having a feel..." (Score:2)
I would have hoped that trials had to do with evidence, not with "feel". Even for personal testimony: you may have someone nervous telling the truth, or a sociopath who can lie about anything. "Feel" should have nothing to do with it.
However, as Mark Twain wrote: "We have a