In March 2021, a defendant expressly agreed that one of the jurors participated to his trial remotely (i.e., by the Zoom platform) on account his potential exposure to the COVID-19.

Even though the Government had strongly opposed this course of action, defendant expressly consented to proceedings with a remote juror. Namely, after repeatedly questioning the defendant on the matter, the district court acknowledged that the latter “understands his right, and […] his consent is knowing and voluntary”.

After having been convicted by the court of first instance, defendant filed an appeal alleging that permitting a juror to participate remotely in his criminal trial violated his Fifth and Sixth Amendment rights (i.e., the right to a jury trial and the rights of criminal defendants, including the right to a fair and impartial jury). He also alleged that such an error was structural in nature and that he was thus entitled to a new trial without even having to show prejudice.

The Court of Appeal for the Ninth Circuit disagreed. While the Court acknowledged that allowing the remote juror participation creates room for a number of issues such as difficulty in seeing exhibits, hearing testimony, and /or viewing witnesses, it ultimately found that “none of those errors will necessarily arise simply because a juror is participating remotely”. To put it straight, the Court held that the mere remote participation of a juror does not in principle render the trial unfair. Accordingly, by judgment of 4 January 2023, it affirmed defendant’s conviction.

Reference: USA v. Knight, Court of Appeal for the Ninth Circuit, 4 January 2023.

Full text of the decision available at cdn.ca9.uscourts.gov en