(Editor’s preface: This is the first in a two-part story on how the court and prosecution have been functioning since COVID-19 safety restrictions have been imposed.)
What is the status of Idaho County justice in the days of COVID? As with the rest of the state, no jury trials have been held in the county since April. Despite this, the process goes on, and criminal and civil cases are being handled online with many being mediated without the need for jury trials. For the duration of the pandemic, this “new normal” has settled the court, prosecutors and attorneys into a routine of video conferences, and longer days behind the desk as fewer courthouse trips are required.
Following Governor Brad Little’s March 25 stay-at-home order, the Idaho Supreme Court discontinued jury trials, a restriction it continued to renew during the year, based on the number of COVID-19 cases throughout the state. Initially planned to resume May 1, no criminal and civil jury trials in Idaho are to commence beore Jan. 4, 2021. This last was from the court’s Nov. 9 order noting, “...the weekly moving average incidence rate of COVID-19 cases in the state has increased from Sept. 13, 2020, to Nov. 8, 2020, by 335 percent, with an average week over week increase of 21 percent.”
According to Idaho County Prosecutor Kirk MacGregor, handling hearings between judges, attorneys and their clients has become an efficient process — the result of time and experience with dealing with Zoom, a videoconferencing service, and the issues of available equipment, and varying Internet speed and connectivity.
“Actually, this has made things easier in many ways,” said Kirk MacGregor.
For attorneys, witnesses, victims and the defendant, rather than travel to the courthouse, they can conduct business from a computer, and everyone can be seen on the screen at one time. Evidence, such as documents, photos or video, can be presented through this format, and a breakout room option allows for private conversations during the proceeding for a defendant and attorney.
“Things are run very efficiently,” MacGregor said, and the process improves as those involved gain experience with Zoom. In fact, he expects this to continue into the future once COVID restrictions are lifted, as an alternative to in-person hearings where it makes sense for the convenience of all parties involved. This could factor in such considerations as distance to travel and weather conditions, which would for safety and convenience lend matters to be better done on Zoom.
“There have been a few glitches, but they’ve been very rare,” he said. Internet connection is the biggest; in one instance, his office lost servce for four days following a storm that damaged his dish. Zoom conferencing relies on good connection, so disruptions can cause issues for participation, and those involved need to have access to the Internet and a computer; some don’t and the court has two laptops presently that can be used in one of two available conference rooms.
Despite how this has worked well so far, jury trials by videoconference are not workable at present.
“A person has the constitutional right to have a trial by jury in a criminal and civil case,” MacGregor said. “With that, you have the right to face your accuser and face witnesses, and that right is a right in person. That’s why we can’t have jury trials by Zoom because of that lost right to face your accuser and witnesses in person. A person could waive that right, but I haven’t seen that happen yet.”
Why that is can be losing the physical context of what is going on with a person in his or her entirety, rather than just seeing them from the neck and shoulders up, according to MacGregor. Body language is important in helping determine the credibility of someone; for example, what are they doing with their hands, are they figdeting, and how are they dressed? A jury trial in person is a right defendants don’t want to give up because they feel that is an advantage where they can use their skills to put them in favor with jurors. In making a credibility judgment, jurors can do this easier when in the same room with the person, rather than in a Zoom window.
Another relevant issue with having jury trials in person is to maintain integrity of the judicial process.
“In a jury trial, you want people to testify off their memories, and not looking at a cellphone photos or other information in their hands,” MacGregor said, the access to which could potentially be unobserved in a Zoom conference. Also, “It’s hard to monitor who is in the room when you are in Zoom. There’s just the potential here for outside influences to have an effect on the outcome, and you don’t want that; you want to avoid that.”