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Cure worse than disease: Virtual jury deliberations during COVID Part One | Nik Khakhar

Tuesday, December 01, 2020 @ 8:21 AM | By Nik Khakhar

Nik Khakhar %>
Nik Khakhar
On Oct. 10, Justice Geoffrey Morawetz of the Ontario Superior Court suspended jury selection for 28 days in three of Ontario’s COVID-19 hotspots — Toronto, Brampton and Ottawa — while allowing in-person non-jury trials with 10 people or less to continue. Despite this allowance, Justice Morawetz maintained that proceedings should be carried out remotely as much as possible. By providing the option for hearings to be held via videoconferencing technologies such as Zoom or Microsoft Teams, courts can ensure that cases suffer from minimal delays despite COVID-19 restrictions on indoor gatherings. However, Ontario courts have been reluctant to allow jury deliberations to take place online. This contrasts with some courts in the U.S., such as Florida’s Fourth Judicial Circuit Court, which have overseen some of the world’s first virtual jury trials.  

While virtual jury deliberations can simultaneously minimize trial delays and the risks of COVID-19 transmission, there are several issues that inhibit Canadian courts from adopting these technological advances. For one, the remote nature of virtual deliberations can reduce the attention span for jurors, making it more difficult to address the existing risks surrounding jury comprehension during in-person trials. In the absence of incentives for jurors to engage more deeply in the trial process, jurors are more likely to rely on the Internet to find information that is extrinsic to the trial as a means of guiding their deliberations — which poses significant risks to the accused and is detrimental to the integrity of a jury verdict.

Finally, the restrictive application of common law jury secrecy rules throughout Canadian jurisprudence has constrained judges in their ability to address these increased risks. In addition to exploring these issues, this two-part series considers the difficulties of balancing legal and ethical interests in order to ensure that virtual deliberations protect both the integrity of jury verdicts and the rights of the accused.

Increased risks surrounding jury comprehension

Empirical and qualitative studies have pointed to the lack of jury comprehension of evidentiary matters, legal standards and post-trial instructions. Laboratory and survey data of both actual and mock jurors have in fact revealed that most instructed jurors are not necessarily able to apply the law to the instant case better than uninstructed jurors. According to jury scholar Marie Comiskey, (Tempest in a Teapot) this is attributable to the fact that jurors have to wait until the end of the trial for the judge to instruct them on how to apply the law to the case facts. The expectation that jurors will be able to remember all of the evidence that is presented in trials — which may last anywhere from a few hours to a few days — is unrealistic, since the average adult human is “limited to retaining at the most seven items at a time,” and has an attention span of 25 minutes.

With increased distractions available in the privacy of one’s own home, virtual deliberations bear the risk of decreasing jurors’ attention span further. Due to the remote nature of virtual deliberations, jurors can easily mute their microphones during a virtual trial and perform other tasks due to the decreased amount of scrutiny from the court and other jury members. Jurors who are not interested in the case at hand, and view jury duty as a mere inconvenience, are particularly susceptible to such distractions. In the absence of breaks, jurors may also be quicker to experience fatigue and exhaustion from prolonged screen exposure, making it more difficult to consolidate important information that is necessary to their verdict.

As a result, virtual jury trials require judges and lawyers to ensure that jurors remain engaged throughout the process. Currently, Canadian pattern jury instructions discourage jurors from asking questions to witnesses for clarification during the trial, and instead advise them to “be patient and listen closely to all the evidence.” Moreover, the judge has the discretion about whether to allow jurors to take notes or ask questions during a trial. By providing aids such as decision trees and encouraging jurors to take notes and ask questions during the trial, courts can ensure that they remain engaged, and can better recall the evidence that has been presented.

Lawyers must also ensure that their presentation remains engaging and understandable to jurors, necessitating the use of slideshows and other tools to facilitate jury comprehension. In the absence of innovative measures to facilitate jury engagement, there is a risk that jurors in virtual trials may compensate for their lack of comprehension by relying on outside information. This risk — which is amplified through the remote nature of virtual deliberations — will be explored in the next article.

This is the first of a two-part series. Read the second article: Cure worse than disease: Virtual jury deliberations during COVID Part Two.

Nik Khakhar is a first-year law student at the University of WindsorHis research has focused on the relationships between jury eligibility requirements, legal comprehension, and common law secrecy rules, and their impacts on the accuracy and legitimacy of criminal verdicts.

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