A modest proposal for video trials

Sometimes it takes a crisis to reimagine what might be.

In 1971, Judge James L. McCrystal of Ohio conducted the first video trial to move the backlog of cases in his court. All of the witnesses were recorded on video. Objections were noted on the video recording. The judge reviewed the objections and ruled on their admissibility. The recordings were then edited to remove objectionable questions, answers, and argument, and the recording were shown to the jury. Even the jury instructions were recorded. Party attorneys would give live opening statements and closing arguments but the testimony and any tangible evidence introduce by witnesses were all pre-recorded. In a Los Angeles Times interview in 1990, Ohio Judge James L. McCrystal reported that more than 300 civil trial were by then conducted entirely on video in his courthouse. The video trial were one-third faster than trials with live witnesses and Judge McCrystal thought they were fairer because the juror do not hear inadmissible evidence. Jurors do not wait for attorney "side-bars" or other court delays, are not influenced by questions soliciting inadmissible testimony, and are not swayed by courtroom antics. Judge McCrystal reported that most of the jurors felt they, the jurors, did a better job when the trial was on video.

Today, video technology is far better and easier to use than in 1971. With our ubiquitous mobile phones nearly everyone is a videographer and has experience with the value and limitations of video. It is no longer too slick to present video evidence. Video is expected.

Here is a modest proposal to consider:

• Crisis Now. In this current crisis when we are suspending jury trials to keep safe social distances, it may be worth considering a different way to approach trials. Stay-at-home orders are preventing us from preparing and presenting witnesses ... in person. We can still prepare and present by video. The video conferencing platforms have shown us that we can meet and connect while staying at home, we can present in webinars and meetings from almost anywhere in the world, and we can record our presentations with the push of the button. It is far easier today to prepare and present a video trial -- even with stay-at-home orders -- than it was in the 1970s when Judge McCrystal was pioneering video trials.

• Video Depositions. As many have found even before this COVID-19 crisis, video depositions can be conducted remotely without too much difficulty. It is not the same as being in the same room. But for the viewer (the jury) it is as good, if not better, than our current video depositions shown in trial. Current video depositions almost universally show only the witness. Attorneys and other participants are off-camera voices. They identify themselves by name but are not visible. Online remote depositions, by contrast, commonly have the potential to show all of the participants in the deposition. Seeing the attorneys and court reporter may not be relevant for most of the testimony but even just a beginning view of the participants exponentially provides visual information that puts the witness's testimony in greater context. Moreover, the visual monitoring, even if not shown to the jury, assures more civil behavior by all.

• Screen Sharing. The screen sharing feature of most remote online meeting platforms provides greater context to exhibits and documents. Photographs, documents, video, webpages, dynamic spreadsheets, animation, and virtually anything that can be shown on a computer can be shown as part of a witness's testimony by using screensharing. Screensharing allows participants in an online meeting (including a witness and an examining lawyer) to use the same online platform to show virtually any type of exhibit with the witness explaining the exhibit on the same screen. No additional equipment or software is necessary. Whatever can appear on a computer can be shown with the witness's live image still visible in a reduced size in a corner of the screen. Even three-dimensional exhibits can be shown by the witness to the camera facing the witness or to a separate video camera or mobile phone or computer camera and shared online. Just as on a computer, relevant sections of the exhibit can be blown-up or highlighted or annotated with ease. The primary difference is that there is no confusion between the relevant exhibit and the separate computer or hard copy exhibit set given to the jury. Jurors do not need to note the right exhibit number. They can see the exhibit in the same screen as the witness is testifying or the attorney is arguing.

• Objections. As noted by Judge McCrystal, one of the best parts of a video trial is that objected testimony and the time consumed in addressing objections are completely eliminated from the trial. The judge rules on the objections before the video is presented to the jurors. The jurors never see the objection or the testimony. Even overruled objections can be edited out of the video to present only the question and the answer.

• Speed. By eliminating the time for objections and side bars and logistics for getting witnesses and exhibits in and out of the courtroom, the actual trial time can be greatly reduced. It's like watching just the game action in a football game. While National Football League broadcasts normally stretch over 3 hours, analysts at FiveThirtyEight ("How Much Football is Even in a Football Broadcast?" Jan. 31, 2020 https://fivethirtyeight.com/features/how-much-football-is-even-in-a-football-broadcast/ ) found that the actual football action amounted to only about 18 minutes. Video trials would be cut to only admissible and significant testimony (since the attorneys can review the video before presentation to the jury and could self-edit admissible but unnecessary examinations). In my own experience, as a young attorney I tried maritime cases where the witnesses would all likely be at sea by the time of the trial. Accordingly, we video recorded most of the depositions anticipating the witnesses would be unavailable for trial. In one trial, I put on five witnesses in less than an hour (including cross-examination). Logistically, that would be very difficult in a live in-person trial just to get the witnesses in the courtroom, sworn, up on the stand, and back out before the next witness.

• Recorded. The best part of the video testimony is that it is recorded. All of the jurors will see the exact same testimony regardless of when or where they view it. If they missed something someone said, they can rewind and see it again -- exactly as it was presented. No reviewing and comparing juror notes to guess and reconstruct what was said. They will see the exhibits with the witnesses and attorneys as they were presented in the trial and can rewind to be sure they are looking at the right exhibit. They will not be misled by transposed exhibit numbers in their notes. Interruptions of life for one juror will not hold up the rest of the jurors. Since they are watching the exact same video they can watch it at any time convenient to their schedule. If the case is appealed and certain evidence should have been excluded or admitted, the recorded video trial can be edited to add or delete the objectional material and the case can be retried within days of the appellate decision. If the problem is the jury instructions or the arguments of counsel, those can be edited and the video presented again.

• Deliberation. Even with everyone staying at home, jurors can deliberate over the online platforms. I have conducted several mediations online during the stay-at-home orders and have found we can connect, we can collaborate, we can deliberate, and we can agree on an acceptable outcome. Confidentiality during jury deliberations, however, may require special isolation rules -- e.g., a secure and separate office or hotel room - to make sure each juror is alone and not being influenced by others who are not visible on the camera.

• Settlement. Cases will settle. Once all sides see what the testimony will look like in the actual trial, there is no guesswork about how a witness will appear or how the evidence will be presented. From the recorded video, all of the parties can see the actual trial. Perceptions can still differ but the varied perceptions will not vary by guesses about how the trial will unfold. The recorded video is the actual trial.

• Joint Preparation. Some might be concerned with the potential for video manipulation. Unlike videos created by one party, the video trial must be a joint production with examinations and cross-examinations and objections all occurring during the same time period -- no different than in trial. The only difference is that the judge may not rule immediately on objections if the judge is not present during the creation of the trial video. Still, a delayed ruling on video trial testimony is no different than the delayed rulings on deposition testimony in our current system.

• Efficiency. For the judiciary, there is an efficiency factor that cannot be underestimated. At a time when trials are suspended and courtroom are dark, cases can be tried. In fact, multiple cases can be tried and are not limited by the available judges or courtrooms or schedules of the attorneys, parties, and witnesses involved. In the late 1970s, a Hawaii Judge (and former mayor) Shunichi Kimura began trying two cases at once to relieve the backlog of the court. He would try a jury trial in one courtroom where he would sit. In another courtroom, he simultaneously tried a non-jury court trial. When the non-jury court trial attorneys had an objection that needed resolution, Judge Kimura would pause the jury trial, listen to the attorneys' objections, rule and then return to the jury trial to continue testimony there. At night, Judge Kimura would watch the court trial video recordings at home and decide the case based on those video recordings. Mayor/Judge Kimura was such a fair and trusted figure that he would later be selected as a juror and would ultimately deliberate with the jury and issue a verdict -- even though he was a former mayor and chief judge of the County of Hawaii.

In times of crisis, there are dangers and opportunities. It is a matter of perspective. We choose the lens. Perhaps this is a perfect time to look through the lens of opportunity to deliver justice with recorded video when we are all forced to stay at home (and are watching videos anyway). 