Trial by Zoom - Special Attention Judges & Trial Attorneys

By Robert Phillips, Deputy District Attorney (Ret)

Trial by Zoom:  Ahhh . . . , the wonders of modern technology.  In this era of everyone’s possible exposure to COVID-19, and considering the nature of jury trials where judges, attorneys, defendants, jurors, and witnesses, along with anyone else from the general public who might wander in to see what’s going on, all pushed into the close confines of a courtroom, it’s a wonder that communicable diseases aren’t spread more often than they are.  But one federal district court judge in Nevada came up with an innovative solution when the possible threat of a COVID-19 exposure reared its ugly head in her courtroom, as described in the unpublished Ninth Circuit Court of Appeal decision of United States v. Knight (9th Cir. Jan. 4, 2023) 2023 U.S.App. LEXIS 87.  In Knight, a juror in a robbery trial that was just about to begin reported to the court that his wife was sick at home, and that he may have been exposed to COVID as a result. Hoping to find a way not to interfere with the process of the trial, the judge proposed to the parties that they select one of three options: (1) Temporarily delay the trial; (2) excuse the juror in favor of one of the alternates; or (3) allow that juror to see and hear the evidence at home via a “Zoom” set up where that juror could participate remotely through a real time video and audio set up. 

The defendant, through his attorney, chose Door #3; the Zoom procedure, specifically (and repeatedly) acknowledging that he understood it was his choice, that he had the right to insist on all twelve jurors being physically present, and that by agreeing to the Zoom procedure, he was waiving that right. Knowing this, he specifically waived his rights in this regard.  Convicted on multiple counts of robbery, and sentenced to over 14 years in prison, the defendant had a change of heart, appealing his conviction and arguing that the Zoom procedure constituted what was ....

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