Is Remote Voir Dire the Way of the Future?

June 30th, 2021

By Dylan E. Jackson and Jeff M. Sbaih
Wilson Smith Cochran Dickerson
wscd.com

Along with my law partner Jeff Sbaih, we successfully completed the defense of two civil jury trials for large commercial transportation carriers in King County in the last half year - both of which had jury selection through Zoom. With King County still doing the same--even though Governor Inslee largely softened the indoor mask mandate on June 29, 2021, for most public places--the question remains whether remote voir dire will be the way of the future.

We have heard some rumblings that judges and court staff are in favor of permanently implementing this process in the future. Though we are not sure there is a correct answer, we do think that any such decision should be carefully considered. Here is a short list of some pros and cons we have observed when comparing remote voir dire versus live voir dire: 

Pros of Remote Voir Dire 

  • While we come out of the pandemic, those jurors who have not yet had the opportunity to seek vaccination, remain safe from potential transmission
  • Jurors have less incentive to avoid/skip jury selection because:
    • They do not have to commute to the courthouse fighting traffic, attempting to find parking, or coordinating new transportation
    • If a juror is excused in the first few hours of the selection process, they can return to work or daily obligations more rapidly
    • If a juror is truly selected, they have more lead time to seek alternate child care/work/school arrangements during the pendency of the trial
  • The attorneys have more information about the backgrounds of prospective jurors rather than the previous single-paged sheet that contained little information and was distributed to the attorneys on the morning of the first day of trial
  • The attorneys are able to observe some of the backgrounds of each prospective juror’s home/setting in which the juror will attend the trial
  • Remote voir dire allows prospective jurors to participate in our civil justice system in an equitable way and alleviates potentially inequitable barriers to service, like child care, transportation, etc.
  • Because of the points above, the prospective jury pool, and ultimate jury selection, will likely be much more diverse than if the jury selection process is confined to the courtroom. 

Cons of Remote Voir Dire 

  • Jurors who are technologically challenged or who do not have adequate computers or devices with cameras are not automatically stricken from the prospective juror pool
  • Jurors who do not have ready or immediate access to or cannot afford a strong internet connection are not automatically stricken from the pool
    • This allows equal access to justice for some of our older citizens who are not necessarily technologically-savvy or our poorer citizens who would like to participate but do not have the most updated technology/cannot afford high speed internet
  • Given the limitations with Zoom technology and the limited number of jurors one can observe at any time in the virtual room, attorneys and the court have to conduct several voir dire examinations to several panels to finally rest upon the final panel
  • Via Zoom, it is difficult to fully see and appreciate a prospective juror’s body language or facial expressions
  • Despite what jurors say, there is the potential for jurors to be distracted when at home by multi-tasking, looking at other screens, or having other family members/influences in the background 

If any of you have thoughts on the way of the future, additional pros and cons about this process, or your personal preferences, we welcome your input.