Virtual Juries

• Author: Hon. Pamela Gates, Jeffrey Frederick, Karen Lisko
• Pages: 12-17

Published in Litigation, Volume 47, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 12

Virtual Juries

We Can, But Should We?

And If So, How?

HON. PAMELA GATES, JEFFREY FREDERICK, AND KAREN LISKO

Hon. Pamela Gates is civil presiding judge of the Superior Court of Arizona in Maricopa County. Jeffrey Frederick, PhD, is the president of

Jeffrey Frederick Trial Consulting Services, LLC. Karen Lisko, PhD, is a senior litigation consultant at Perkins Coie LLP.

Locking eyes with those seated in the jury box, a judge instructs

the jury, “You may begin your deliberations.” Everyone stands.

The jurors file out of the courtroom, retiring to a secret room

where they will discuss the evidence and law in an effort to reach

a verdict. Jury trials are sacrosanct in our system of justice.

And then everything changed. When our world began to face

the unrelenting spread of the novel coronavirus in early 2020,

the number of in-person jury trials decreased and many were

put on hold. But judges, lawyers, and others recognized the im-

portance of keeping the courthouse doors open—even if virtually.

Historically, courts move at a pace that would frustrate even the

most patient sloth, as we form committees, study options, and

analyze unintended consequences. So courts evolved. Fast.

Like many courts, the Arizona State Superior Court in

Maricopa County studied and considered over weeks and months

what it would have typically considered over years and even

decades. We formed a task force with lawyers, researchers, and

judicial officers. Among the questions the task force looked at

was how to keep jury trials continuing in this pandemic—and

perhaps the next one.

“Can we?” was never at the front of our minds. Instead, we

asked, “Should we?” and, if so, “How?” While many pondered

what could and should occur with jury trials during the pandemic,

we got to work collecting facts and data.

The task force focused on two areas: First, could jurors serve

from home? And, second, what were the differences—in terms

of outcomes and process—among the alternatives to traditional

jury trials? To answer this second question, we conducted a se-

ries of simulations designed to explore a refashioned in-person

but socially distanced jury trial, a virtual jury selection, and a

virtual jury trial.

At the outset, we were eager to understand who could and

could not serve as a virtual juror. With a population of over 4.5

million people spread over 9,224 square miles, the process of

summoning and empaneling Maricopa County jurors carries

challenges even when the majority of our population is worried

only about the 119-degree heat. Before the pandemic, more than

14,000 people entered our court buildings every day. When the

pandemic compromised the safety of our community, we knew

changes were necessary to reduce the steady stream ofjurors

who physically entered our buildings.

Before coming to the courthouse, almost 80 percent of our

court’s prospective jurors respond to their summons using

our ejuror portal. In May 2020, we revised this portal to cre-

ate a more robust online questionnaire, expanded in part, to

seek information about a prospective juror’s ability to serve

as a virtual juror. Regarding virtual jury service, we asked five

qualifying questions: