“Zoom” is Now an Alternative Platform to “In-Person” Court Appearances - September 2020

In March 2020, the world changed as we once knew it. The following perceptions do not include any formally gathered facts or data and do not meet a Daubert standard, as they are personal observations and experiences. Traditionally, most courts in the State of Michigan provide an opportunity for evidentiary hearings and jury trials to be conducted in person. Since the global pandemic that has impacted our lives for months, courts have deviated from what was once guaranteed by statute, Michigan Court Rules, and even the Constitution.

Prior to the pandemic, the word “zoom” was generally an action verb or a once-considered “overvalued” stock. In our profession, “Zoom” is now an alternative platform to “in-person” court appearances. Although it seems highly unlikely to be a permanent substitute, several courts are using this format for preliminary examinations and voir dire. Voir dire being implemented by Zoom for capital cases probably will not happen, but courts are implementing Zoom voir dire for misdemeanors and non-capital cases.

What are some of the changes being utilized regarding remote voir dire? Most trial courts have permitted potential jurors to participate from the comfort of their homes, while other others dispatch jurors to a specific location with all participants at a safe social distance. Districts courts are using eight jurors, while circuit courts are impaneling fifteen for felonies in the event someone tests positive for COVID-19. This experiment is still a work in progress. Regardless, if potential jurors are at home or a remote location, attorneys will have to adapt to make the best of the situation. Voir Dire is the time we build our tribe by carefully determining which potential jurors may not be the best fit, either through using a “challenge for cause” or a “preemptory challenge.” There are also circumstances where no jurors are excused, but defenders were making these determinations in person.

There are several things to keep in mind if you are confronted with a “Zoom” voir dire. Realistically, you will not be able to stop the proceeding, so place your constitutional objections on the record to preserve the issue for appeal. Do not “go through the motions” during voir dire. This process has the same importance in the global pandemic. It is necessary to keep potential jurors engaged without “randomly” picking people to share thoughts or force conversation. Some of us feel uncomfortable using the “pause” between interactions, now is the time to embrace that awkward silence. Short questions, topics, and danger points should be brief and concise. Reading someone’s body language is not the same as it is while in-person, so organic conversations among jurors is imperative. Jurors are still assessing your trustworthiness and sincerity, just like courtroom voir dire.

Zoom voir dire is not a “wave of the future,” and hopefully it is something that will go away when COVID-19 is controlled. Until then, organizations like SADO offer trainings in this area, and it is a great idea to keep up to speed as our clients’ needs and expectations have not changed, regardless of the current situation.

by Bernard Jocuns

Lapeer trial attorney Bernard Jocuns is a former president of the Lapeer County Bar Association and is active the following organizations: (Inaugural Chairperson) Marijuana Law Section of the State Bar of Michigan, Criminal Defense Attorneys of Michigan (Vice President & Faculty), Michigan Association for Justice, National Association of Criminal Defense Lawyers (lifetime member), National Lawyers Guild, American Association for Justice, Justice Caucus Michigan Democratic Party (Board Member), (Chairperson) City of Lapeer Zoning Board of Appeals, Gerry Spence Trial Lawyers College (Dubois, Wyoming), Lapeer County American Legion, Veterans of Foreign Wars (lifetime member), Michigan Appellate Assigned Counsel System & NORML Legal Committee (lifetime member).

Bernard shares his knowledge with other lawyers through teaching hands on training classes such as Evidence Boot Camp and presenting at various conferences in and outside the State of Michigan.  He is also Editor & Author of the Medicolegal Aspects of Marijuana in Michigan (Lawyers & Judges Publishing Company) released June 2019, in addition to publications in the Michigan Bar Journal, numerous articles, along with published opinions in the Michigan Court of Appeals and Michigan Supreme Court.  Bernard is active with the State Bar of Michigan Representative Assembly as a proponent of several successful resolutions.

Mr. Jocuns website: https://www.jocuns.com/#