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08/15/2020

Justin Rattey on Virtual Criminal Trials and Originalism
Michael Ramsey

Justin D. Rattey (J.D., Ph.D. Georgetown University) has posted Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana (Penn State Law Review, 2020) (7 pages) on SSRN.  Here is the abstract:

Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s “construction zone.” The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.

Interesting -- a more difficult issue for originalists than many evolving-technology cases, I think.  But I don't know that the issue is framed correctly here, at least for many originalists.  I assume no one thinks the Constitution requires a jury trial to look exactly like an eighteenth (or nineteenth) century jury trial.  But it must have the essential features of a historical jury trial.  That's the point of Ramos, I take it: unanimity is one of the essential features.  Is an in-person hearing also an essential feature?  That can't really be answered purely historically since there obviously weren't virtual options then.  But we can ask: does the virtual hearing change the dynamics so much that it's not really the same process?  I'm not sure of the answer but I think that's the originalist question.  The key point is that answering this question does not turn on an assessment of "current circumstances" (meaning the problems posed by the pandemic).