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Impact of COVID-19 on Juror Perceptions

Author: Mike Coffey, Tina Ma

Guest Editor: Ashley Kaye

January 21, 2021 9:00am

The pandemic has indisputably and substantially affected all aspects of our lives.  It is not surprising the effects of the pandemic in our everyday lives have also impacted jurors and their perceptions during litigation and trial.  The psychological effects of the pandemic, along with the new tools used for remote litigation, have the ability to affect juror perceptions.  Attorneys and parties planning for a trial during the pandemic must consider these changes and adapt their strategy accordingly.

The Psychological Effects of the Coronavirus

COVID-19 has caused mass hysteria, economic burden and financial losses, as well as acute panic, anxiety, obsessive behaviors, hoarding, paranoia, depression, and post-traumatic stress disorder.[1]  A survey of American adults regarding the pandemic reveals: (1) 74% of Americans say the COVID-19 pandemic has led to more personal stress and anxiety; (2) 51% of respondents felt sadder during the pandemic; and (3) by more than two-to-one, respondents stated their emotional health and wellbeing had gotten worse rather than better.[2]  Americans’ increased anxiety and unhappiness can be attributed to a growing uncertainty regarding their personal financial situation, including: (1) negative impact to retirement or college savings (53%); (2) inability to pay everyday bills (51%); and (3) concerns about finding food, medicine, and cleaning supplies (62%).  In fact, 59% of Americans stated the pandemic has had a more devastating impact on the United States than 9/11.[3]

The financial stress experienced by jurors due to the pandemic could increase a juror’s impatience and alter their opinions about a damage award.  Jurors may have less sympathy for someone asking for an award if they themselves have suffered recent financial hardship.  In light of the overwhelming infection and death rates in the United States and the world because of the pandemic, jurors could use those statistics as a barometer to evaluate plaintiff’s damages claim.[4]

Further, jurors who are compelled to serve may show up angry, scared, or distracted, and these feelings could prevent a juror from focusing on the evidence and legal issues at trial.[5]  Any time attorneys or the court spends during trial will likely anger jurors more than usual if perceived as unnecessary.  The court can hold anything perceived as wasted time against an attorney, leading to an unfavorable opinion of the attorney or their client.[6]

If jurors are angry and/or concerned for their safety, it is hard to expect them to thoughtfully deliberate prior to rendering a verdict.[7]  When asked who they would blame if they were forced to report for jury duty, the majority of those surveyed said they would blame no one.  A small share of jurors said they would blame plaintiff or the defense, and they blamed those parties in equal portions.[8]

Attorneys preparing for trial with jurors suffering the psychological effects of the pandemic must take into account the stresses and reluctance a potential juror is facing by doing their civic duty.  Those who fear prolonged exposure to others in a courtroom may rush to reach a verdict, simply to finish their service and return home.[9]

The Makeup of a Potential Jury

A majority of survey respondents prioritize public health over reopening the country, and remain concerned about personal and public health.[10]  Accordingly, due to health risk concerns, only those who have the financial means and assess their health risk to be relatively low will be willing to serve as jurors in civil trials.[11]

Recent surveys show that because of COVID-19, three out of four jurors are nervous about attending a trial, and people of color, Democrats, and older Americans are particularly concerned about contracting the virus.[12]  Studies show white people, Republicans, and young people are the least concerned about contracting and spreading the virus.  Jurors who do participate are more likely to be white and more conservative.[13]  Jurors who are not nervous about serving tend to value cases approximately 16% less compared to other jurors, making them better jurors for the defense.[14]

Out of 1,500 individuals surveyed, 46% said they would actively attempt to avoid jury duty entirely, and 30% stated they would ask courts to excuse them due to their discomfort serving close spaces.  Nine percent of individuals stated they would inform the court they would or could not comply with a mask requirement.  A small share of jurors stated they would blame plaintiff or defense if the courts forced them to appear in person for jury duty.[15]  As stated above, when jurors are worried and distracted, they may rush to a verdict or fail to evaluate all of the evidence presented, resulting in erroneous litigation results.[16]  By requiring reluctant and distracted jurors to serve during a pandemic, there is a risk of faulty verdicts.[17]

In addition to the above concerns, there are other issues impacting the makeup of a potential jury pool during the pandemic.  For instance, people who may not be able to afford childcare for children, those not able to attend school, or elderly individuals who are susceptible to the virus may not be able to serve on juries.[18]  In addition, inadequate access to computers and high-speed internet could lead to severe equity problems.[19]  Ultimately, all these factors could result in jury pools that do not represent the community, lacking racial and socioeconomic diversity.[20]  When evaluating the risks of proceeding with trial, attorneys and parties must consider the jury pool may not be the usual makeup of individuals or be in line with prior verdicts rendered in that jurisdiction due to the impact of coronavirus on the jury pool.

Juror Perceptions

The pandemic has undoubtedly influenced individual juror perceptions.  For instance, six percent of respondents believe private sector businesses have been the least effective at protecting the economy, workers, and businesses.[21]  This could have negative implications for corporate entities in a civil jury trial.

Furthermore, more than 50% of those surveyed viewed healthcare workers as heroes, and more than 30% stated healthcare workers were very important people in our society.  More than 60% held a favorable view of doctors and nurses, and more than 30% had a somewhat favorable view of doctors.  43% supported limiting lawsuits against healthcare professionals.[22]  The survey further showed that, of the 43% of jurors who supported limiting lawsuits against healthcare professionals, these individuals tended to reduce the average plaintiff’s win rate by 11%.[23]  Surveyors found the 2% of individuals surveyed who viewed healthcare workers as simply doing their job, and did not understand treating them as more important than they were before the pandemic began, also had a higher win rate, increasing it by 19%.  Similarly, the 1% of individuals that had an unfavorable view of doctors increased the win rate by 34%.[24]

Surveys of potential jurors showed the following shifts in attitudes and opinions: (1) sympathy for those who have suffered an economic loss; (2) praise for frontline workers; (3) support for small businesses; (4) trust or distrust of government; and (5) trust or distrust of science.[25]

Evidence indicates rules and conventions become more important among individuals who fear contagion.[26]  They also tend to show a greater deference to authority figures and a decreased tolerance for those who defy authority, although individual jurors will have different ideas about what constitutes a legitimate authority figure.[27]  Counsel should anticipate basic overall changes in jurors’ perceptions and decision-making resulting from increased adherence to rules and minimized tolerance for rule breaking.[28]

Although not quite as statistically significant, the surveyors noted 16% of jurors who knew someone who became seriously ill from COVID-19 also produced a win rate 11% higher than average.[29]

Protective Measures

Measures to protect citizens from spreading the infection also influence juror perceptions.  The design and arrangement of courts and courtrooms, along with the appearance and nonverbal cues and behaviors of judges, jurors, court clerks, security guards, defendants, witnesses, and lawyers, all affect the course of court proceedings.  Facial expressions, gaze patterns, postures, and body movements convey interpersonal and social information about a situation.[30]

For instance, counsel for parties present in the courtroom or testifying before the jury may not want their clients wearing a mask because it could influence the jurors’ perception of them.  Furthermore, if the court allows or mandates witnesses or jurors to wear masks, it could obscure key nonverbal cues during testimony and jury selection.[31]  Being able to assess an individual’s credibility often depends on their facial expression and non-verbal cues, which face masks may hinder or obscure.[32]

Although the use of phone and computer applications may limit the breadth of view and the ability of lawyers and triers of facts to choose their focus, there are some potential benefits.  For instance, lawyers and triers may be able to view facial characteristics of witnesses and jurors better on phone and computer screens.  This makes the impact of facial characteristics more important; they can positively or adversely influence the evaluation of evidence.[33]

However, the use of remote-access technology has also proven to have a negative impact for litigants during trial, particularly raising concerns such as dehumanizing defendants and the role of nonverbal communication.[34]  Legal scholars have discussed the various consequences of trials by videoconference, which include dehumanizing defendants, compromising defendants’ right to effective counsel assistance, and hindering the image and role of judges.[35]  The ability to observe the parties during in-person proceedings help humanize them to the jury, especially defendant.  Studies have demonstrated how proximity impacts empathy.  Virtual proceedings distance the jurors from defendant in a way that may decrease their empathy for them.[36]

For some, the very act of travelling to the courthouse to participate in proceedings can be transformative due to the physical surroundings experienced during the journey.  Video-conferencing technology may potentially diminish the cultural meaning and solemnity associated with adjudicatory processes. [37]  One of the prominent arguments against video-conferencing technology is that technical issues – time delays, poor audio and picture quality – impede the ability of the court and counsel to interact with and assess witnesses.  The concern is these types of technical issues interfere with a juror’s ability to assess a witness’s credibility.[38]

A number of factors can come into play during a video conference that can hinder the receipt and assessment of witness testimony, including the distortions in the perception of non-verbal communication or shifted-eye contact through a non-aligned viewing of the camera or screen. [39]  Research has also shown the choice of a camera shot, i.e. a head shot versus a fully body shot, or the choice of lighting can influence how a witness is perceived.[40]  Depending on how the speaker appears on camera, the viewer may perceive the speaker as “uninterested, shifty, haughty, servile or guilty.”[41]

While social distancing and the use of a large courtroom would be safer for jurors and trial participants, the distance could negatively affect both the jurors’ and counsel’s ability to properly participate at trial.  A party sitting six feet away from his or her counsel loses the ability to converse with counsel or pass a note during trial proceedings.  Depending on the configuration of the courtroom, jurors may be required to sit behind a party, which prevents the party or their counsel from observing the jurors’ nonverbal cues during witness testimony.[42]

In courtrooms, the opportunities to observe nonverbal behavior include when: (1) judges talk to witnesses and lawyers; (2) witnesses testify; (3) lawyers examine and cross-examine witnesses; (4) lawyers present opening and closing arguments; and (5) clients and lawyers converse.  Furthermore, reactions of the judges, jurors, parties, witnesses, and lawyers to others’ interactions are a nonverbal expression of their assessment of a situation or event.[43]

Lastly, a study found jurors have issues focusing for long periods of time.[44]  Participants reported a tendency to become distracted during videoconferencing.[45]  The study showed that during a remote civil jury trial, a juror left to take a phone call.  In another instance, jurors appeared to sleep, exercise, or tend to other matters while participating virtually.[46]  A juror’s attention span for online proceedings is approximately 2.5 to 3 hours per day.[47]  Remote video calls can drain participants’ energy because they force participants to focus more intently in order to absorb information, since there are no nonverbal cues for them to rely upon.[48]  It may be beneficial to have breaks every 30-45 minutes, and attorneys should consider presenting their information in these types of timed intervals.

Takeaway

In light of these findings and developments, as litigators we must learn to adapt our trial strategies accordingly.  We must adapt our defense strategy and message to reflect the impact of the pandemic on juror’s risk assessment and attitudes.  Attorneys should make heavier use of PowerPoint and other trial graphics to highlight key points, as they are both dynamic methods of conveying key information to a remote-access juror in a concise manner.  Counsel should also make sure to consider camera angles, lighting, and eye contact in addressing potential credibility issues these nonverbal cues may have on a remote juror.

 

[1] See Melanie D. Wilson, The Pandemic Juror, Washington and Lee Law Review Online, Vol. 77, Issue 1, Art. 6 (September 29, 2020) available at https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1132& context=wlulr-online (last accessed on December 21, 2020).

[2] See Douglas Schoen, Carly Cooperman and Daniel Cooper, Addressing the “New Normal” for Jurors and Jury Pools (September 24, 2020) available at https://www.law.com/newyorklawjournal/2020/09/24/covid-19-will-create-a-new-normal-for-jury-pools (last accessed December 21, 2020).

[3] Id.

[4] See Preparing for Trial After COVID-19, Tsongas Litigation Consulting (April 14, 2020) available at https://tsongas. com/blog-posts/preparing-trial-after-covid-19/ (last accessed December 27, 2020).

[5] Wilson, The Pandemic Juror, supra.

[6] Preparing for Trial After COVID-19, supra.

[7] See Brandon Marc Draper, And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right, 62 B.C.L. Rev. E. Supp. I.-1 (2021) available at https://lawdigitalcommons.bc.edu/bclr/vol62/iss9/1 (last accessed December 27, 2020).

[8] Analysis of the Impact of COVID-19 on Jury Attitudes, Behavior, and Willingness to Serve. Empirical Jury LLC (July 14, 2020) available at https://triallawyernation.com/wp-content/uploads/2020/07/Empirical-Jury-Covid-Effect-Analysis-July-2020.pdf (last accessed on December 22, 2020).

[9] Wilson, The Pandemic Juror, supra.

[10] Schoen, Cooperman and Cooper, Addressing the “New Normal” for Jurors and Jury Pools, supra.

[11] Id.

[12] Wilson, The Pandemic Juror, supra.

[13] Draper, And Justice for None, supra, citing Mark Curriden¸ Harris County Juries Projected to Be Whiter, More Conservative as Pandemic Persists, Houston Chronicle (July 2, 2020) available at https://www.houstonchronicle. com/business/article/harris-county-jury-white-male-conservative-covid-15380341.php (last accessed December 27, 2020).

[14] Jury Bias and Reconceptualizing Jury Trials in the Age of COVID-19, The Simon Law Firm, P.C. (July 9, 2020) available at https://www.prnewswire.com/news-releases/jury-bias-and-reconceptualizing-jury-trials-in-the-age-of-covid-19-301091093.html (last accessed December 21, 2020).

[15] What Do 1,500 People Think About Serving as Jurors During the COVID-19 Pandemic? Simon Law PC (June 30, 2020) available at https://simonlawpc.com/1500-people-think-about-serving-as-jurors-during-the-covid-19-pandemic (last accessed on December 21, 2020).

[16] Wilson, The Pandemic Juror, supra.

[17] Id.

[18] See Ann E. Marimow and Justin Jouvenal, Courts Dramatically Rethink the Jury Trial in the Era of the Coronavirus, The Washington Post (July 31, 2020).

[19] See Vincent Denault and Miles L. Patterson, Justice and Nonverbal Communication in a Post-pandemic World: An Evidence-Based Commentary and Cautionary Statement for Lawyers and Judges (August 9, 2020) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7415193/ (last accessed on December 21, 2020).

[20] Wilson, The Pandemic Juror, supra.

[21] Schoen, Cooperman and Cooper, Addressing the “New Normal” for Jurors and Jury Pools, supra.

[22] Analysis of the Impact of COVID-19 on Jury Attitudes, Behavior, and Willingness to Serve, supra.

[23] Id.

[24] Id.

[25]Potential Impact of COVID-19 on Juror Decision-Making- Part II, supra.

[26] See Lorie Sicafuse, Ph.D, Impact of COVID-19 Crisis on Jurors’ Attitudes & Decisions, available at https://www. courtroomsciences.com/blog/the-csi-blog-1/post/impact-of-the-covid-19-crisis-on-jurors-attitudes-decisions-135 (last accessed December 27, 2020) citing D.R. Murray & M. Schaller, “Threat(s) and Conformity Deconstructed: Perceived Threat of Infectious Disease and Its Implications for Conformist Attitudes and Behavior,” European Journal of Social Psychology (2011).

[27] Id.

[28] Id.

[29] Analysis of the Impact of COVID-19 on Jury Attitudes, Behavior, and Willingness to Serve, supra.

[30] Denault and Patterson, Justice and Nonverbal Communication in a Post-pandemic World, supra.

[31] Marimow and Jouvenal, Courts Dramatically Rethink the Jury Trial in the Era of the Coronavirus, supra.

[32] Id.

[33] Denault and Patterson, Justice and Nonverbal Communication in a Post-pandemic World, supra.

[34] Id.

[35] Id.

[36] COVID-19’s Next Victim? The Rights of the Accused, Dublin Research and Consulting available at https://www. nacdl.org/Article/COVID19sNextVictim202005-PD (last accessed December 27, 2020).

[37] See Amy Salyzyn, “A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario,” Vol. 50, Issue 2, Osgoode Hall Law Journal (2012) available at http://digitalcommons.osgoode.yorku.ca/ ohlj/vol50/iss2/4 (last accessed December 27, 2020).

[38] Id.

[39] Salyzyn, A New Lens, supra, citing Mark Federman, “On the Media Effects of Immigration and Refugee Board Hearings via Videoconference,” Vol. 19, Issue 4J, Refugee Study (2006).

[40] Salyzyn, A New Lens, supra, citing Elizabeth Wiggins, “What We Know and What We Need to Know About the Effects of Courtroom Technology,” Vol. 12, Issue 3, William & Mary Bill Rts (2004)

[41] Draper, And Justice for None, supra, citing Kate Murphy, Why Zoom is Terrible, N.Y. Times (Apr. 29, 2020) available at https://www.nytimes.com/2020/04/29/sunday-review/zoom-video-conference.html (last accessed December 27, 2020).

[42] Wilson, The Pandemic Juror, supra.

[43] Denault and Patterson, Justice and Nonverbal Communication in a Post-pandemic World, supra.

[44] Draper, And Justice for None, supra, citing Michael Pressman, A Report on the Civil Jury Project’s Mock Zoom Jury Trial, CIV. JURY PROJECT (June 8, 2020) available at https://civiljuryproject.law.nyu.edu/a-report-on-the-civil-jury-project-mocks-zoom-jury-trial/ (last accessed December 27, 2020).

[45] COVID-19’s Next Victim? The Rights of the Accused, supra.

[46] Draper, And Justice for None, supra, citing Debra Cassens Weiss, Potential Jurors Exercised, Curled Up on Bed During Virtual Voir Dire, Motion Says in Asbestos Case, A.B.A.J. (July 22, 2020) available at https://www.abajournal. com/news/article/potential-jurors-exercised-curled-up-on-bed-during-virtual-voir-dire-motion-says (last accessed December 27, 2020).

[47] Jury Trials in a COVID World: Online, In Person, Jury Selection and Alternative Methods, Victory Trial Consulting (2020) available at https://www.lsba.org/documents/COV/juries.pdf (last accessed December 27, 2020).

[48] COVID-19’s Next Victim? The Rights of the Accused, supra.

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