But does it represent a fair cross-section of the community?
An experiment was recently conducted in Collin County, Texas in the wake of COVID-19.
A civil jury trial was conducted via Zoom. It was a non-binding summary jury trial that lasted one day. The Court and the parties should be applauded for their efforts to innovate.
While it is a truly notable event, certain details about how the jury pool was populated were not provided in the various news reports about the trial. It occurs to me that both sides to a civil lawsuit may have valid concerns about the jury selection process in a trial conducted via Zoom.
The laws of the United States and Texas contemplate every citizen’s right to a fair and impartial trial by a jury of one’s peers.
Sec. 15 of the Texas Constitution provides that the right of trial by jury shall remain inviolate, and the Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
Who is qualified to serve on a jury?
In Texas, each county receives a list of potential jurors from the Secretary of State that consists of those individuals in the county that are registered to vote, hold a Texas driver's license, or hold a Texas identification card. Citizens on the list are randomly selected and mailed a summons to report for jury service.
Once a potential juror receives a summons from the County, there are several qualifications that must exist for a person to actually serve as a juror:
be at least 18 years of age;
be a citizen of the United States;
be a resident of this state and of the county in which you are to serve as a juror;
be qualified under the Constitution and laws to vote in the county in which you are to serve as a juror (Note: You do not have to be registered to vote to be qualified to vote);
be of sound mind and good moral character;
be able to read and write;
not have served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court; and
not have been convicted of, or be under indictment or other legal accusation for, misdemeanor theft or a felony.
See Texas Government Code § 62.102. General Qualifications for Jury Service.
Now it seems that additional qualifications may be required for a person to serve as a juror in a virtual trial:
Reliable internet access;
A computer or mobile device; and
Computer literacy.
The problem is that the digital divide is real, even in Collin County where the median household income in 2018 was estimated to be $96,051.00.
By allowing only citizens that have the digital resources and acumen to serve remotely as jurors, the jury selection process likely does not afford the parties the opportunity to select a jury from an accurate cross section of the community. It takes money to have reliable internet access and a device with an up to date operating system. It takes more than money to actually know how to use the technology.
Resistance to change is normal, but more details about the compilation of potential jurors will be necessary before there is a willingness to proceed with a Jury Trial via Zoom when the stakes are higher, and the jury’s decision is binding.
During a jury trial that I observed in Collin County over 20 years ago, the Plaintiff’s attorney (who was not from Collin County) was shocked by the number of potential jurors that wore suits and ties when they appeared for jury selection. He asked, “Where are all the working people?”.
Fast forward to now, and the question may become, “Where are all the people with an AOL account?”.