Views from the Bench

• Jurisdiction: Utah,United States
• Citation: Vol. 35 No. 6 Pg. 10
• Pages: 10
• Publication year: 2022

Views from the BenchNo. Vol. 35 No. 6 Pg. 10Utah Bar JournalDecember, 2022

November, 2022

Embracing Online Jury Selection

by The Honorable Matthew Bates

In March 2020, the world descended into darkness. A global pandemic shuttered businesses, schools, and government offices. General hysteria prevailed. Feral dogs roamed the streets, and toilet paper disappeared from store shelves. It was a bleak and difficult time. Utah courts stopped holding in-person hearings, including jury trials. In hindsight, that was wise, because there was no toilet paper to stock the public restrooms.

As time passed and scientists learned more about the virus, people put on masks and slowly returned to work and school. And the country rebuilt its strategic reserves of toilet paper. But courtrooms remained closed to the public. The judiciary understood that it was in "the unique position of having authority to compel individuals to attend court proceedings in person," and judges were reluctant to force the public to appear at what could become a judicial superspreader event. This was especially true of jury selection.^[1]

Jury selection before the pandemic was no model of good public health. Jury clerks summoned a crowd of random strangers and jammed them shoulder to shoulder into a courtroom with an HVAC system built by the lowest bidder. There they sat breathing on each other for four to five hours while lawyers peppered them with questions like, "Does the fact that your mother-in-law's second cousin's dentist was once sued for malpractice cause you to have strong feelings about residential boundary disputes?" It was inconvenient for the public, it took a long time, and even before the pandemic it probably resulted in spreading endemic illnesses. But we did it that way because our forebears had done it that way, and their forebears had done it that way, and their forebears' forebears had done it that way clear back to the Magna Carta.

So jury trials were suspended, and judges and staff watched helplessly as cases backed up. Then some brilliant court staffer had the idea to try picking a jury using written questionnaires and a short video conference selection process. I do not know where the idea came from, but I like to imagine that a trio of deceased Supreme Court justices revealed it to one of the jury clerks in a dream.

I must admit, at first I was skeptical, and I assumed the bar would protest. Was not part of jury selection watching how the potential jurors behaved? Seeing how they interacted with each other? Observing how often they scratched their noses? Noticing who fell asleep and who talked too much? I figured online jury selection would be something that we tried once or twice and then discarded as a miserable failure.

Of course, I was wrong. Between January 2021 and February 2022, the Third District Court conducted 115 virtual jury selections. And we discovered that online jury selection had many benefits. It took less time than in-person jury selection. It allowed jurors to stay busy doing other things when they were not being directly questioned by the court or attorneys. And it halved the juror non-appearance rate. Judges loved it. Attorneys loved it. Potential jurors loved it. But most importantly, I loved it. And I hope it becomes a permanent part of our judicial system.

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