At this point, approaching our quarantine anniversary, we have all done our fair share of business on Zoom. We know that keeping our attention on the small screen can be a challenge, even for an hour-long meeting. Now, imagine a jury trying to maintain attention over the course of a full online trial. Of course, our experience from many in-person trials tells us that this challenge in maintaining a focus is by no means unique to an online webinar context. Our court systems are sometimes unavoidably delayed, fixed on a process that can be purposefully slow, or necessarily redundant. But when the full courtroom setting is replaced with a camera and a screen, there can be some new challenges.
For example, when the Online Courtroom Project presented a demonstration trial over the summer, one of the jurors fell asleep on her bed just as the jury was being moved to its deliberation room. I have also heard of another recent online trial in California where another juror also feel asleep. In that case, however, jurors had been told to turn their cellphones off, and as a result, there was no way to contact the juror. The court had to simply wait until the juror woke up. These events, along with other well-known difficulties with Zoom-attention, raise the question of how to ensure juror focus in an online trial. In this post, I will share five best practices aimed at monitoring and promoting that attention.
A recent article in Law.com’s Legaltech News focuses on technological fixes aimed at juror attention, while also touching on broader solutions. The concern is represented in a quote from Philadelphia attorney Daniel Jeck, “I think people are concerned about, how do you know if [the jurors] are engaged when they’re not present?” They could be juggling distractions at home, or multitasking. It is a real concern, but experience tells us that it is not a fatal one. Here are five best practices on monitoring and promoting juror attention.
The most obvious piece of advice is to keep an eye on the jury, just as you do in physical courtrooms. In addition to making sure jurors are on-screen and awake, you can also, to some extent, see their engagement. The article quotes Brewster County, Texas, Judge Roy Ferguson: “The beauty of that is I can arrange my screen so all the jurors are on one side,” he continues, “If they’re doing anything else — everyone is looking at the right and if they’re looking at the left — I immediately knew that person was doing something else. It was obvious.”
2. Emphasize the Reasons
The research shows that it is not enough to simply offer clear instructions. Instead, instruction should also address the reasons for the instruction. Addressing both the what and the why makes it more likely that jurors will respect and internalize the instructions. So, let jurors know the following:
a.) Everything we are presenting is important, and these details will be the basis of your deliberations;
b.) That is why it is important to pay close attention at all times, and to have nothing else competing for your attention; and
c.) We understand that paying close attention at all times can be harder to do on the screen, and that is why the court will make some accommodations (such as shorter days and/or more frequent breaks). But ultimately, we are counting on you to stay focused.
The jurors’ oath might also include a promise to avoid multitasking and to be fully attentive, and to let the court know if anything occurs (I.e. involving their setting or their technology) that prevents them from being attentive.
3. Carefully Consider Technological Solutions
The Law.com article focuses on Artificial Intelligence (AI) software, including a solution under development by a company called “Prevail,” to technologically monitor whether someone is paying attention online. Noting privacy concerns and problems with public facial recognition, the article and those involved with the technology advise proceeding cautiously. To me, it seems that if we are talking about facial observation, not recognition, there would be few to no privacy concerns. Unlike the person observed on the street or at a sports stadium and tied to a crime through facial recognition, the juror is already known to the court. Having a camera measuring eye contact does not seem categorically different from having a judge or anyone else watching a juror’s eye contact in court. Once that technology is developed, courts should test and consider its effectiveness.
4. Take More Breaks
We know from both experience and research that “Zoom fatigue” is a reality. But we also know that there are certain efficiencies in the medium as well. Once people are logged in, transitions like bringing in a witness or moving the jury out of the room can be done with a keyboard click. In addition, there is a natural pressure on both court and counsel to be briefer and focused than they might be in an in-person setting.
Taking advantage of those efficiencies, courts should consider opting for shorter days or more frequent breaks. Even if trial does extend a few days further as a result, that isn’t necessarily a bad thing. If jurors have additional time to keep up with work and family responsibilities, that just serves to make jury duty more accessible.
5. Use Dedicated Tools
The Texas judge mentioned above, Judge Ferguson, used iPads that were adapted to have minimal browsing capabilities. That is a useful tool for online trials, as it not only solves the technology access problem, but also puts a limit on the amount of technological distraction a juror might experience.
Another approach, once suppliers start rolling out court-specific versions of web-conferencing software, would be to tie functionality to that single use. In other words, a window should pop up reading, “We have detected that you have other applications or windows open. Please close those and click here to continue.”
Ultimately, the issue of juror attention is an important issue to address. But there are no good reasons to see it as insurmountable. As Judge Ferguson mentioned in the Law.com article, most of these fears have not really materialized: “The jurors do pay attention and the witnesses [also] pay attention.”